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SECOND AMENDED AND RESTATED
MANUFACTURING AND PURCHASE AGREEMENT
BETWEEN
TEXAS INSTRUMENTS INCORPORATED,
AND
ANAM SEMICONDUCTOR, INC.
AND
AMKOR TECHNOLOGY, INC.
AND
CERTAIN AMENDMENTS TO THE PHASE 3 TAA
BETWEEN
TEXAS INSTRUMENTS INCORPORATED
AND
ANAM SEMICONDUCTOR, INC.
DATED AS OF DECEMBER 31, 2001
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TABLE OF CONTENTS
Page
ARTICLE 1.0 DEFINITIONS 1
ARTICLE 2.0 PRIOR AGREEMENTS 5
ARTICLE 3.0 ITEMS AND COOPERATION TO BE SUPPLIED BY ANAN AND /OR AMKOR 5
ARTICLE 4.0 SPECIFICATIONS, QUALITY INSPECTION, TESTING AND CUSTOMER SERVICE 7
ARTICLE 5.0 MANUFACTURING CHANGES 13
ARTICLE 6.0 TI LOADING OBLIGATIONS AND OPTION 14
ARTICLE 7.0 TI FORECASTS AND PURCHASE ORDERS 15
ARTICLE 8.0 PRICING 18
ARTICLE 9.0 SHIPPING, PAYMENT AND PACKAGING 18
ARTICLE 10.0 WARRANTIES AND LIABILITY LIMITATIONS 22
ARTICLE 11.0 AMENDMENT OF CERTAIN PRIOR AGREEMENTS 24
ARTICLE 12.0 TERM 26
ARTICLE 13.0 CONFIDENTIALITY 27
ARTICLE 14.0 TERMINATION AND DISPUTE RESOLUTION 27
ARTICLE 15.0 MISCELLANEOUS 30
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AMENDED AND RESTATED MANUFACTURING AND PURCHASE AGREEMENT
This Second Amended and Restated Manufacturing and Purchase Agreement (this
"Agreement") dated as of December 31, 2001 (the "Effective Date") is made by and
among TEXAS INSTRUMENTS INCORPORATED, a Delaware, U.S.A. corporation, with its
principal place of business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. ("TI"), ANAM SEMICONDUCTOR, INC. (formerly known as Anam
Industrial Co., Ltd.), a corporation of the Republic of Korea, with its
principal place of business at Seoul, Republic of Korea ("Anam"), and AMKOR
TECHNOLOGY, INC. (formerly known as Amkor Electronics Inc.), a Delaware, U.S.A.
corporation, with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Amkor"). TI, Anam and Amkor are hereinafter referred to
individually by their respective names or as Party and collectively as Parties.
Anam and Amkor are hereinafter collectively referred to as "Supplier".
RECITALS
WHEREAS, Anam is engaged in the business of, among other things, operating
a semiconductor foundry in Korea;
WHEREAS Amkor is in the business of, among other things contracting with
third parties to sell semiconductor wafers and die manufactured by Anam;
WHEREAS, TI and Anam previously entered into (i) the Technical Assistance
Agreement dated as of January 28, 1997 ("Phase 1 TAA"), (ii) the Technical
Assistance Agreement dated January 1, 1998 ("Phase 2 TAA"), (iii) and the
Technical Assistance Agreement dated as of July 1, 2000 ("Phase 3 TAA"),
pursuant to which TI transferred and licensed certain process technology to
Anam;
WHEREAS, the Parties entered into an Amended Manufacturing and Purchase
Agreement dated July 1, 2000 (the "AMPA") for the purchase by TI from Amkor, and
the sale by Amkor to TI, of TI Products (as hereinafter defined) to be
manufactured by Anam;
WHEREAS, TI, Anam, and Amkor desire to supplement, amend and supersede
certain provisions of the Phase 3 TAA and the AMPA as set forth in this
Agreement;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants contained herein, the Parties, intending to be legally bound, hereby
agree as follows:
ARTICLE 1.0
DEFINITIONS
For purposes of this Agreement, the following words, terms and phrases shall
have the meanings assigned to them in this Article 1 unless specifically
otherwise stated.
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Furthermore, any defined term herein shall have a constant meaning regardless of
whether it is used in its singular or plural form.
ADVANCED AVAILABLE TECHNOLOGY means, as the context herein requires, "Advanced
Available Technology" as defined in the Phase 1 TAA and/or "Advanced Available
Technology" as defined in the Phase 2 TAA and/or "Advanced Available Technology"
as defined in the Phase 3 TAA (and as amended hereunder) and or Advance
Available Technology as defined in the Phase 4 TAA to be negotiated.
CAPACITY OF THE FACILITY means [ * ] per calendar month.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
AUSA means Anam USA, Inc., a Pennsylvania corporation, and its successors and
assigns.
CBL means CBL Capital Corporation of Foster City, California, and its successors
or assigns.
CITICORP means Citicorp North America, Inc., of Foster City, California, and its
successors or assigns.
CUSTOMER QUALIFICATION means that a TI customer has qualified a particular TI
Product device manufacturable by Anam hereunder for sale by TI to such customer,
as reflected in TI's written notification thereof to Anam.
DEFERRED PURCHASE ARRANGEMENTS means that certain Deferred Purchase Agreement,
between AUSA and Anam dated December 13, 1999, and that certain Deferred
Purchase Agreement dated July 1, 2000, wherein AUSA agreed to sell to Anam the
equipment that is the subject of the Leasing Agreements
DEVICE TEST PROGRAM RELEASE means that point in time at which a device test
program is released to production upon the mutual agreement of TI and Anam
product engineering personnel.
FACILITY means the completed wafer fabrication plant known as Anam Fabrication
Buchon (AFB) 1, located at ▇▇▇, ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇-▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇
420-130 which Anam constructed, in connection with the Phase 1 TAA, which
Facility includes only a single 60 meter by 100 meter clean room. The term
Facility includes a wafer fabrication facility and equipment only, and shall not
include facilities or equipment for assembly and testing of Products.
GUARANTIES means TI's guaranty, dated December 13, 1999, of AUSA's obligations
to Citicorp under that certain Master Leasing Agreement, dated as of December 1,
1999
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between Citicorp and AUSA, and TI's guaranty, dated July 1, 2000 of AUSA's
obligations to CBL under that certain Master Leasing Agreement, dated as of July
1, 2000 between CBL and AUSA (either of such Guaranties individually referred to
as a "Guaranty").
LEASING AGREEMENTS means that certain Master Leasing Agreement, dated as of
December 1, 1999 between Citicorp and AUSA, and that certain Master Leasing
Agreement, dated as of July 1, 2000 between CBL and AUSA (either of such Leasing
Agreements individually referred to as a "Leasing Agreement").
PHASE 1 means that portion of the clean room within the Facility, the process
capability of which was contemplated by the Parties in the Phase 1 TAA to be
sufficient to manufacture approximately [ * ] under the provisions of the Phase
1 TAA, and which, as currently contemplated by the Parties, will be sufficient
to transition to the manufacture of approximately [ * ] under the provisions of
the ▇▇▇▇▇ ▇ ▇▇▇.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
PHASE 1 PRODUCTS means "TI Products," as defined in the ▇▇▇▇▇ ▇ ▇▇▇.
▇▇▇▇▇ ▇ means that portion of the clean room within the Facility, the process
capability of which was contemplated by the Parties in the Phase 2 TAA to be
sufficient to manufacture approximately [ * ] under the provisions of the Phase
2 TAA, and which, as currently contemplated by the Parties, will be sufficient
to manufacture approximately [ * ] under the provisions of the ▇▇▇▇▇ ▇ ▇▇▇.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
PHASE 2 PRODUCTS means "TI Products," as defined in the ▇▇▇▇▇ ▇ ▇▇▇.
▇▇▇▇▇ ▇ means that portion of the clean room within the Facility, the process
capability of which, as currently contemplated by the Parties, will be
sufficient to manufacture approximately [ * ] under the provisions of the ▇▇▇▇▇
▇ ▇▇▇.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
PHASE 3 PRODUCTS means "TI Products" as defined in the ▇▇▇▇▇ ▇ ▇▇▇.
▇▇▇▇▇ ▇ means the phase beginning with the qualification of TI's C027 process in
Supplier's facility in accordance with the Phase 4 TAA.
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PHASE 4 TAA means a technical assistance agreement relating to the transfer and
licensing by TI of its C027 process to Anam and Amkor, which agreement is to be
negotiated by the Parties in accordance with Section 11.01.04 hereof.
PROCESS QUALIFICATION means TI's written certification that a unique process
flow within the broader C10-node, C07-node, C05 non-copper-node, C027-node or
LBC5-node, as applicable, (e.g., the split-gate C10 process flow, the split-gate
C07 process flow, and the split-gate C05 non-copper process flow) in operation
at the Facility, which unique process flow cannot be qualified by similarity to
another already qualified process flow, is qualified per the standards referred
to within TI as the" QSS standards."
PROCESS QUALIFICATION COSTS [ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
PRODUCTS means ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇ Products, and Phase 3 Products and
Phase 4 Products as defined herein.
PRODUCT QUALIFICATION means, with respect to TI Products, the process, as
described herein, resulting in TI issuing its written certification that such TI
Products and their manufacture have achieved a level of quality, consistency and
reliability that meets or exceeds the Specifications in accordance with this
Agreement.
PRODUCT QUALIFICATION COSTS [ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
QUALIFICATION COSTS means Product Qualification Costs and Process Qualification
Costs.
SPECIFICATIONS means specifications related to a specific process flow which are
supplied to Anam in writing by TI to describe, characterize, circumscribe and
define the design characteristics, quality and performance of TI Products,
manufacturing processes, manufacturing equipment or Product Qualification and
which are consistent with Specifications which are applicable to the same
process flow manufactured by a TI facility comparable to the Facility.
SUBSTANTIAL COMMERCIAL QUANTITIES means [ * ] of the relevant TI Product.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
TERM means the period during which this Agreement is in effect, as more
specifically set forth in Article 12 of this Agreement.
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TI PRODUCTS means TI Products as defined in the Phase 1 TAA and as defined in
the Phase 2 TAA, and as defined in the Phase 3 TAA and at such time as a Phase 4
TAA is finalized, the TI Products as defined in the ▇▇▇▇▇ ▇ ▇▇▇.
Unless otherwise provided herein, other capitalized terms herein shall have the
meaning assigned to them in one or more of the Phase 1 TAA, the Phase 2 TAA, or
Phase 3 TAA as the context herein requires.
ARTICLE 2.0
PRIOR AGREEMENTS
2.01 PRIOR MPA. This Agreement shall govern the purchase by, and sale to, TI of
TI Products manufactured by Anam. This Agreement shall supercede and
replace the AMPA with respect to all such purchases and sales occurring
after the date hereof.
2.02 ▇▇▇▇▇ ▇ ▇▇▇. This Agreement shall amend the Phase 3 TAA in accordance with
Section 11.01.04 below.
2.03 RELEASE.
2.03.01 Amkor and Anam hereby release and discharge TI from any and
all liabilities or obligations that TI may have had to either
or both of them under the AMPA, any TAA or any transaction
relating thereto that resulted from TI's failure to purchase
TI Products in the quantities specified therein prior to
January 1, 2002.
2.03.02 TI hereby releases and discharges Amkor and Anam from any and
all liabilities and obligations that either or both of them
may have had to TI to make payments scheduled to be made to TI
under the AMPA or any TAA with respect to Technology provided
by TI to Anam or Amkor prior to the effective date hereof.
2.03.03 Nothing in this Section 2.03 shall be construed to require
either party to refund any scheduled payments previously made
by either party prior to January 1, 2002.
ARTICLE 3.0
ITEMS AND COOPERATION TO BE SUPPLIED BY ANAM AND /OR AMKOR
3.01 MANUFACTURE. In accordance with the Phase 1 ▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇, ▇▇▇▇▇ ▇ TAA
and any other applicable Technical Assistance Agreement ("TAA") executed between
the Parties, Anam shall manufacture the TI Products to be sold by Amkor to TI
hereunder.
3.02 COSTS, EXPENSES AND FEES. [ * ]
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[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3.03 QUALIFICATION COSTS. [ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3.04 MASK SETS.
3.04.01 For each TI Product which is to be manufactured by Anam for TI
and which requires a specific mask design, TI agrees to
provide to Anam the design data base and Technical Information
necessary for Anam to manufacture or have manufactured mask
sets, including any such additional mask sets (or portions
thereof) as may be redesigned by TI from time to time, to be
used for manufacturing such product.
3.04.02 TI shall bear the costs of (i) the initial mask set relating
to each Phase 2 Product and Phase 3 Product, and (ii) the
initial mask set ordered on or after January 1, 1999 for each
Phase 1 Product. Anam shall bear the cost of the mask sets
used solely in connection with Process Qualification under the
Phase 1 TAA, the Phase 2 TAA, and the ▇▇▇▇▇ ▇ ▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇ ▇ ▇▇▇; provided, however, that if, and to the extent (i)
the same mask set used in Process Qualification is used in
production, and (ii) TI would otherwise be obligated to have
paid for such production mask set under this Section 3.04.02,
then Anam and TI shall share equally the cost of purchasing
such qualification mask set.
3.04.03 Notwithstanding anything to the contrary set forth in this
Section 3.04, TI shall bear the cost of any reasonable mask
redesign and mask manufacturing costs associated with
modifications or changes to the original mask sets which are
necessitated by design errors or changes by TI or TI's
Customers with respect to the initial mask sets. For any
wafers that have been manufactured in whole or in part that
are required to be scrapped due to any such design error or
change of TI or TI's customers, TI shall pay Amkor an amount
(the "Wafer Termination Amount") equal to:
[ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
3.04.04 Anam shall be responsible for the costs of all masks and mask
sets for which TI is not otherwise responsible pursuant to
Sections 3.04 and 6.04.03.
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3.05 TI MASK SET PROTECTION. Anam shall protect all mask sets as Trade and
Industrial Secrets of TI according to Article 10 of the applicable TAA. When any
mask set is no longer usable by Anam for the purposes of this Agreement, Anam
shall either return the mask set to TI immediately, or, upon TI's instructions,
destroy the mask set and provide TI with written certification of any such
destruction.
3.06 MATERIAL QUALITY REQUIREMENTS AND EQUIPMENT USAGE. TI will provide to Anam
the most current version of TI's manufacturing Specifications, test programs and
other test procedures needed by Anam to manufacture TI Products. In the process
of qualifying the Facility and the manufacture of each TI Product, Anam shall,
unless it obtains TI's consent to the contrary, use the same materials, recipes,
processes, specifications and equipment directly relating to the manufacture of
TI Products that TI uses in its commercial production of such TI Products as may
have been disclosed by TI to Anam or as otherwise instructed by TI.
Notwithstanding the foregoing, where required by local availability of materials
and supplies, with the consent of TI, which consent shall not unreasonably be
withheld or delayed, Anam may use materials, recipes, processes, specifications
and equipment that are different from those used by TI.
ARTICLE 4.0
SPECIFICATIONS, QUALITY INSPECTION, TESTING AND CUSTOMER SERVICE
4.01 CHANGE TO SPECIFICATIONS. TI has the right to modify, change or alter the
Specifications from time-to-time, at its sole discretion and upon reasonable
written notice to Anam. In the event TI makes a change to the Specifications,
the Parties, through good faith negotiations, shall agree upon the delivery
schedule of the TI Products resulting from said change and TI's and Anam's
respective responsibilities, in accordance with Section 4.02 for the costs
incurred by Anam in connection with such changes, within thirty (30) days
following any such notice. All Specification changes shall be consistent with
TI's own Specification changes and shall not require Anam to perform changes not
otherwise generally performed by TI with respect to comparable process flows
under comparable circumstances.
4.02 SPECIFICATION CHANGE COSTS.
[ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4.03 TI RESIDENT INSPECTOR. Anam agrees that TI employee safety and well-being,
product quality and reliability assurance, and the protection of TI's
intellectual property, including but not limited to Technical Information, are
of material importance to TI. Therefore, throughout the Term, TI shall have the
right to maintain at the Facility, at TI's sole discretion, one or more resident
representatives, as reasonably approved by Anam, for the purpose of monitoring
compliance with this Agreement, the Specifications, and TI
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safety and environmental standards for the protection of TI personnel, and
protecting TI's intellectual property, including but not limited to Technical
Information. Anam shall provide suitable office space for use by such
representatives, and shall provide reasonable access to the manufacturing
processes for the TI Products as may be required for monitoring said compliance.
Such representatives shall not interfere with Anam's operation of the Facility.
4.04 TI CUSTOMER RIGHT OF INSPECTION. Upon reasonable notice, Anam agrees to
allow TI customer representatives (who have been approved by TI), to conduct
quality control and Specification audits and certification/qualification of the
Facility, and manufacturing process, provided that, where requested by Anam, a
TI employee accompanies such customer during its audit in the Facility, subject
to reasonable rules of Anam relating to visitors.
4.05 TI RIGHT TO MONITOR PRODUCTION. Throughout the Term, during completion of
production lots for TI, TI may perform monitoring tests and may recommend
disposition or corrective action where variance to the Specifications exists.
Anam will support this activity with quality trend reports and such other
documentation as shall be reasonably requested by TI from time-to-time. In
addition, if at any other time TI detects variances or deviations from
Specifications, TI may recommend corrective actions to Anam.
4.06 VISITS AND SECRECY AGREEMENT. Anything to the contrary in this Article 4
notwithstanding, each and every personnel of TI or TI's customers who shall be
given access to the Anam Facility pursuant to this Agreement, including, without
limitation, pursuant to Section 4.03, 4.04 and 4.05 shall execute an agreement,
which shall include reasonable terms governing the protection of Anam
confidential information, as a condition precedent to admission or access to
such Facility or receipt of technical information of Anam pursuant to this
Agreement. All such personnel shall fully abide by all Facility rules and
regulations. TI shall be fully liable for any personal injury or property damage
resulting from any act or omission of TI's personnel while on the premises of
Anam. All transitory visits of TI and TI customers shall be arranged at such
times and in such manner as to minimize interference with the activities of
Anam.
4.07 ANAM CORRECTIVE ACTIONS. During the Term, Anam agrees to use reasonable
commercial efforts to make corrective actions as may be reasonably recommended
by TI as soon as practicable, after written notification of the problem;
provided, however, that TI shall use reasonable commercial efforts to assist
Anam in taking such action recommended by TI or in solving problems.
4.08 CYCLE TIME. Anam agrees to supply TI Products to TI in cycle times which
shall be competitive with merchant world-class foundry companies. In any event,
Anam agrees that the maximum production cycle time (i.e., the period from the
start date for production specified in the TI Start Plan (as defined below) by
TI to Anam's shipment of TI Products) shall be [ * ], except where otherwise
expressly provided for herein.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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4.09 EXPEDITED PRODUCTION. On production lots specified by TI, Anam shall
expedite cycle time to [ * ], or such other cycle time as may be agreed (such
expedited lots herein referred to as "Hot Lots"). Regardless of the stage of the
production process at which a normal lot is converted into a Hot Lot, for each
such Hot Lot shipped within cycle time, TI shall pay Anam a fee of [ * ];
provided, however, that:
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
(a) Unless otherwise agreed, Anam shall not be obligated to so expedite
production, on more than [ * ] at any one time; and
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
(b) Any lots required to be expedited pursuant to Section 9.05, below
shall not count against the limits described in Section 4.09.00(a)
above.
4.10 TESTING. Anam shall perform multi-probe testing in a manner consistent with
TI practice, to the extent disclosed by TI to Anam, at Anam's Buchon, Republic
of Korea site on all TI Products delivered to TI hereunder and, without limiting
its obligations elsewhere provided for herein, shall be responsible, at its sole
expense, for having sufficient facilities, test equipment, labor, test programs
and other items in place on such site to meet required quantities and cycle
times. Notwithstanding the foregoing, TI shall be responsible, solely at its
expense, for furnishing to Anam in a timely manner copies of the multi-probe
test programs necessary for Anam to perform multiprobe testing on the required
quantities and within the required cycle times; provided, however, that TI shall
be under no obligation to furnish test programs compatible with any test
equipment other than the test equipment TI uses in its wholly-owned facilities
for comparable wafers. All test programs required to be implemented by Anam in
accordance with this Section 4.10 shall be consistent with TI's own test
programs and shall not require Anam to perform testing not otherwise generally
performed by TI with respect to comparable products. Anam shall use no other
test programs on TI Products other than those furnished or approved by TI. TI
agrees to purchase any testers used by Anam for TI Products at the end of Anam's
use of such testers on TI Products. TI's purchase price for such equipment shall
be equal to Anam's original purchase price for such equipment depreciated on a
five-year straight line basis and subject to a discount in price for excessive
wear and tear. Notwithstanding the foregoing, TI will consign to Anam such
testers as may be required to enable Anam to test Products for sale to TI in
accordance with this Agreement. TI will pay for shipping of such testers and
provide, or reimburse Anam for, interface plates. Anam will provide probe cards,
power conditioner, power supplies, and probers. In consideration of the
foregoing, Amkor shall reduce the price otherwise payable by TI to Amkor for all
Phase 1 and Phase 2 Products by [ * ]. Anam shall be responsible for tester
hardware and software maintenance and support, as well as software upgrades,
either providing such services itself, or contracting for such services at its
own expense. If Anam and TI mutually agree that TI will
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provide maintenance and support for VLCT Systems or any other testers, such
services shall be provided at a rate of [ * ] per VLCT System and [ * ] per
V-Series for Phase 1 and Phase 2 Products. For Phase 3 Products and Phase 4
Products, TI shall charge Anam the same rate that TI internally charges its own
wholly owned wafer fabrication facilities for such services.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4.11 TI INCOMING TESTING AND INSPECTION.
4.11.01 TI shall furnish to Anam from time to time, as required,
quality and reliability Specifications applicable to TI
Products. Among other things, those Specifications will
specify the quality standards referred to within TI as the
"Category 1" standards. Such Specification shall be consistent
with specifications applicable to the Category 1
specifications met by TI's own facilities. Following receipt
of each shipment, TI may perform incoming tests on each
shipment of TI Products. In the event such tests demonstrate
that such TI Products fail to conform to the then-applicable
quality and reliability Specifications furnished by TI and
such Specifications conform to the foregoing, TI shall have
the right to return, after confirmation of failures, such TI
Products to Anam for rework or replacement at no cost to TI.
TI has the right to recommend corrective action to address
variances from Specifications. Such return shipments shall be
made by TI, F.O.B. the destination from which they were
originally shipped by Anam. A return material authorization
("RMA") form previously issued by Anam must accompany any such
returned TI Products.
4.11.02 TI agrees to perform incoming inspection of TI Products for
conformance with applicable Specifications within ninety (90)
days of delivery, and to advise Anam and Amkor of rejections
by written or electronic notice within five (5) business days
after inspection. If any delivery of products by Anam or Amkor
does not conform in any material respect to TI's order for
such TI Products or is found to fail applicable inspection, TI
shall have the right to reject such delivery by giving timely
notice to Anam and Amkor to that effect. TI will thereupon
return the non-conforming TI Products to Amkor or Anam (as the
case may be) at Amkor's or Anam's cost and risk, for, as may
be agreed between Amkor and TI, credit or rescreen and
replacement. If it is agreed that such TI Products shall be
rescreened, Anam and Amkor shall use reasonable efforts to
rescreen and replace such non-conforming wafers or dies and to
do so, if at all, within forty-five (45) days after the
receipt thereof. TI will provide Anam and Amkor with a report
specifying the reason for any rejection. All rejected products
may be subjected to inspection by Anam or Amkor to confirm
that they are defective. Any TI Product not rejected by TI
within ninety (90) days plus five (5) business days after
receipt by TI shall be deemed accepted. In the event that it
determined that TI's
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rejection of a TI Product was not justified in accordance with
the foregoing, TI shall reimburse Anam or Amkor, as the case
may be, for all costs incurred in connection with such
rejection, including without limitation in connection with the
shipping and testing of such TI Product.
4.11.03 Nothing in this Section 4.11 shall limit TI's rights under
Section 4.12 below.
4.12 CONFORMANCE TO QUALITY AND RELIABILITY STANDARDS; STOP SHIPMENTS.
4.12.01 Prior to any shipment of TI Products to TI, Anam shall:
(a) Visually inspect such outgoing TI Products in accordance
with applicable Specifications; and
(b) electrically test such TI Products to determine whether:
(i) such TI Products conform to the relevant Category
1 standards (as defined in Section 4.11 above), as
may be applicable to such TI Products in
accordance with Section 4.11; and
(ii) the defective parts per million ("DPPM") levels of
such shipment (as determined under then-current TI
practice applied by TI to comparable products
manufactured by TI) for such TI Products conform
to the DPPM levels agreed upon by the Parties
provided that such DPPM levels shall not be lower
than those demonstrated by the manufacturing
process, as qualified, in use at a TI wholly-owned
facility, which process is most comparable to the
one in use at the Facility.
4.12.02 Unless otherwise permitted by TI, Anam shall assure that the
TI Products meet, and shall not ship TI Products to TI that do
not meet, the standards set forth in Section 4.12.01 above.
4.12.03 If it is determined by TI within 90 days of the shipment of TI
Products to TI that such TI Products do not conform to the
standards set forth in Section 4.12.01, above, then
notwithstanding anything to the contrary contained herein and
upon written notice by TI, Anam shall stop all further
shipments of such TI Products to TI, and TI shall be under no
obligation to accept or pay for any such shipments, until TI
shall be reasonably satisfied that appropriate corrective
actions have been taken by Anam to address the nonconformance
to such Category 1 standards and/or DPPM levels in accordance
with Section 4.12.01 above.
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4.12.04 Notwithstanding Section 4.11 above, or Sections 4.12.03 and
4.12.02 above, TI, Anam and Amkor agree to the following
disposition of those TI Products produced hereunder that fail
to satisfy Category 1 standards, [ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4.13 SECURITY AND DESTRUCTION OF SCRAP. Anam shall not assign, consign, deliver,
transfer or otherwise provide TI Products, and shall undertake security measures
(including but not limited to scrap and non-conforming TI Product destruction)
sufficient to prevent TI Products (including all defective TI Products which do
not meet Specifications) from being sold, assigned, consigned, delivered,
transferred or otherwise provided, to any third party without the express
written consent of TI. Unless otherwise specified in writing by TI, (a) all
defective TI Products which cannot be repaired economically shall be scrapped
and destroyed and (b) such defective TI Products shall not be transferred to any
third party. TI shall have the right, from time-to-time, to review (i) Anam's
security and scrap destruction procedures and (ii) Anam's compliance with such
procedures.
4.14 PRODUCTION HOLDS. At TI's request, Anam shall hold production on any lot
without charging TI an extra fee for that service for the first [ * ]. With
respect to lots for which the hold is made prior to the backgrind stage and
which hold exceeds [ * ], TI will pay Anam [ * ]. TI shall not be required to
pay Anam a hold fee with respect to lots for which the hold is made from and
following the backgrind stage. If any hold on a lot exceeds [ * ], TI, at its
option, will thereupon either (i) release the lot for cancellation pursuant to
Section 9.06, or (ii) release the lot for further processing. In the event that
a lot which is on hold is canceled in accordance with Section 9.06, TI shall pay
Anam only the cancellation charge provided under Section 9.06.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4.15 WAFER BANK. Upon TI's request Anam agrees to store, at no additional
expense to TI, up to [ * ] (or such other amount as may be agreed from time to
time) unfinished wafers that have been processed up to the contact or "via"
stage of processing for a period not to exceed 365 days. After Anam has stored
such wafer for 60 days, Amkor shall have the right to invoice TI for, and TI
shall purchase, such wafers at the Fixed Wafer Price therefor; provided that, in
such case, Anam shall complete the processing of, and delivery of, such wafers
upon TI's request at no additional cost. Notwithstanding the foregoing, upon
shipment of such wafer to TI, the Price for such wafer shall be recalculated in
accordance with Article 8 and if such recalculated Price is different from the
Fixed Wafer Price paid, Amkor shall issue a credit or debit to TI, as the case
may be, for such difference. Any wafers so purchased by TI, while in the
possession of Anam, shall be owned by TI and retained by Anam on a consignment
basis and Anam shall continue to be responsible for any loss or damage to such
wafers while they are in Anam's possession. In the event that either Anam or
Amkor is responsible for a wafer for which TI has paid in accordance with
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the foregoing not being ultimately saleable to TI in accordance with this
Agreement, Amkor shall credit TI the amount paid for such wafer.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4.16 IMPLEMENTATION OF TECHNICAL INFORMATION.
4.16.01 Unless otherwise instructed by TI, and except as provided in
Section 3.06, Anam shall, in accordance with this Agreement
and the applicable TAA, implement all Technical Information
provided under the applicable TAA as well as any manufacturing
improvements (including TI Product performance improvements)
as and when the Technical Information is furnished by TI to
Anam.
4.16.02 Anam shall establish failure analysis capability reasonably
satisfactory to TI, prior to Product Qualification.
4.17 TEST CORRELATION PROCEDURES. TI and Anam agree that quality and reliability
assurance are of prime importance to TI's customers; therefore, both companies
agree to establish test correlation procedures to assure compliance with TI
customer requirements.
4.18 ANAM PROCESS RECORDS. Anam shall maintain, for a period of three (3) years
from each date of origin, accurate records describing processing detail on a per
die-lot basis.
4.19 OBSOLETE PRODUCTS. Notwithstanding anything to the contrary contained
herein, if over any six-month period the quantity of TI's orders for TI Products
falling within any particular process flow (e.g., the 33C10.c3 process flow)
constitutes less than the lower of (i) [ * ], in such period or (ii) [ * ] then
Anam may notify TI in writing of its intention to exercise its rights under this
Section 4.19, and after two and one-half years following such notice, Anam may
refuse any further order for TI Products so falling within such process flow;
provided, however, that if TI has (i) the same process flow qualified at a TI
wholly-owned facility and (ii) available capacity for the manufacturing of such
TI Products at such facility, then Anam may refuse any such further order after
nine (9) months following such notice.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4.20 PERFORMANCE METRICS. TI and Anam shall share with each other, on a periodic
basis, their respective data under the performance metrics as may be agreed
between them and reports of their respective performance against such metrics.
ARTICLE 5.0
MANUFACTURING CHANGES
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Both TI and Anam understand that the particular TI Product to be provided to TI
for initial Product Qualification and as qualified by TI will define the
applicable manufacturing process with respect to the manufacture of TI Products.
After Product Qualification is successfully completed, Anam shall not make any
changes to said manufacturing process(es) or the Specifications without the
prior written instruction and consent of TI. Any unauthorized manufacturing
changes by Anam which affect the form, fit, function or reliability of the TI
Products shall render them unqualified. TI assumes no liability for the
manufacture of unqualified TI Products. Any particular TI Product and its
manufacture can become unqualified after Product Qualification if such formerly
qualified TI Product subsequently falls below applicable Specifications. Changes
to a particular TI Product or its manufacture may necessitate re-qualification.
TI or Anam shall bear the costs associated with the foregoing as determined
under the applicable TAA and this Agreement.
ARTICLE 6.0
TI LOADING OBLIGATIONS AND OPTION
6.01 LOADING OBLIGATIONS.
6.01.01 Throughout the Term, TI and/or TI's Affiliates (individually
or collectively) shall, subject to only the conditions set
forth in Section 6.03, purchase from Amkor, and Amkor shall
sell (subject, inter alia, to Section 7.03) to TI, no less
than the quantities of TI Products provided in this Section
6.01, as follows:
[ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
6.01.02 For the purpose of the foregoing the term "month" means
calendar month.
6.01.03 TI shall purchase TI Products in accordance with Article 7
below. Such purchases shall be at such prices and upon such
terms as are set forth in this Agreement.
6.01.04 Notwithstanding the foregoing, TI shall not be deemed to be in
breach of Section 6.01 for so long as TI meets its minimum
purchases obligations under such section as determined on a
rolling six-month average basis.
6.01.05 Anam and Amkor agree to take all reasonable commercial efforts
to work with TI with respect to this Section 6.01.
6.02 CAPACITY. Regardless of Anam's actual manufacturing capacity the "Capacity
of the Facility" shall be deemed equal to [ * ].
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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6.03 CONDITIONS TO TI PURCHASE OBLIGATIONS. TI shall be relieved by Anam and
Amkor of TI's obligation to purchase TI Products from Amkor pursuant to Section
6.01 only during the period and to the extent that: (i) Amkor and Anam have
failed to achieve a sufficient number of Customer Qualifications to support such
purchase obligations, such failure is the fault of Amkor or Anam and TI has used
reasonable commercial efforts to obtain such Customer Qualifications; or (ii)
Anam has materially failed to meet Specifications and TI Product performance
specifications (e.g., cycle time, yield and delivery targets), and provided that
in such case Anam and TI shall work together to remedy such failure.
6.04 C12 PRODUCTS.
6.04.01 [ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
6.04.02 The C12 Products purchased pursuant to this Section 6.04 shall
not apply to TI's loading obligations set forth in Section
6.01.01.
6.04.03 Notwithstanding anything to the contrary set forth herein,
including in Section 3.04, TI shall be responsible for the
cost of any mask set used in the Product Qualification for any
C12 Product and the initial mask set used in the manufacture
of a C12 Product.
6.04.04 Except as otherwise provided in this Section 6.04 and Annex A,
Note 3, all C12 Products will be treated as Phase 1 Products
are treated hereunder.
ARTICLE 7.0
TI FORECASTS AND PURCHASE ORDERS
7.01 ANNUAL QUANTITY PROJECTIONS. By the 15th of May of each year during the
Term, TI shall provide to Amkor the annual quantities of Wafer Outs by
technology node (e.g., C10, C07, non-copper C05) estimated to be purchased from
Amkor by TI for the upcoming three (3) to five (5) year time period (the "Annual
Quantity Projections"). For purposes of this Agreement, "Wafer Outs" means
finished wafers. Such Annual Quantity Projections shall be a good faith estimate
by TI but shall be for informational purposes only and not constitute a binding
purchase obligation of TI. The Annual Quantity Projections may be issued
electronically.
7.02 FIXED LOADINGS. Subject to Article 6 above, TI shall purchase from Amkor,
Amkor shall sell, and Anam shall manufacture, quantities and types of TI
Products to the extent
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such quantities and types are deemed fixed in Forecasts and TI Start Plans
issued in accordance with the following provisions of this Article 7.
7.03 MONTHLY FORECASTS.
7.03.01 On the 20th day of each month (or on the last preceding
business day prior to the 20th day if the 20th day is on a
weekend or holiday), TI shall issue to Amkor a forecast (the
"Forecast") of the monthly quantity of wafer starts by
technology node (e.g., C10, C07, non-copper C05) and process
flow (e.g., 33c10x4L) to be purchased by TI from Amkor during
the next twelve months. The first three months included in
each Forecast shall be deemed fixed as to the quantity of
wafer starts and the related technology nodes. Accordingly,
the quantities of wafer starts and technology nodes specified
for the first and second months of each Forecast shall be the
same as the quantities of wafer starts and technology nodes
specified for the second and third months of the immediately
preceding Forecast.
7.03.02 The last nine months included in each Forecast shall be deemed
fixed as to the quantity of wafer starts, except that in each
Forecast, TI may increase or decrease the quantity of wafer
starts specified for any of the last nine months of such
Forecast (a "Subject Month") by up to an amount equal to [ * ]
of the Capacity specified in such Forecast for the
corresponding month immediately preceding the Subject Month.
Such forecasted amount, adjusted in accordance with the
foregoing, shall be deemed fixed as to the quantity of wafer
starts, unless further varied in subsequent Forecasts issued
in accordance with this Section 7.03.02.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
7.03.03 Nothing in this Section 7.03 shall restrict TI from specifying
in its Forecasts quantities less than its minimum loading
requirements under Section 6.01, provided TI satisfies those
requirements on a six-month rolling average basis as set forth
in Section 6.01.04.
7.04 DAILY LOADING REQUIREMENTS AND WEEKLY FORECAST.
7.04.01 On a mutually agreed schedule between the Parties, TI shall
issue to Amkor a daily TI Start Plan (the "TI Start Plan").
The TI Start Plan shall specify device types, and quantities
in terms of wafer starts for TI Products the production of
which is to commence for each of the days covered by the TI
Start Plan. TI shall issue each TI Start Plan at least 24
hours in advance of the first date (Korea time) covered by
such TI Start Plan. The TI Start Plan will be issued
electronically.
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7.04.02 Anam shall commence production of such device types in such
quantities as specified for each such Fixed Day. The remaining
days of each TI Start Plan shall be for informational purposes
only and shall not be deemed fixed to any extent.
7.04.03 Anam shall produce TI Products in lot sizes to be agreed upon
by the Parties consistent with prior practice between the
Parties, which agreement shall be based in part on whether
Anam incurs materially higher per-die costs in the production
of smaller lot sizes.
7.05 SHIPPING INSTRUCTIONS. On Monday of each week, TI shall provide Amkor a
Shipping Instruction Report identifying wafer shipments (including
shipment destinations) that need to be made in the current week starting
on that Monday.
7.06 FURTHER AGREEMENT. Nothing in this Article 7 shall restrict the Parties
from agreeing from time to time on quantities and types of TI Products
different from those deemed fixed pursuant to the foregoing provisions.
7.07 YIELD ESTIMATES.
7.07.01 Anam shall provide to TI accurate multi-probe yield ("MPY")
and process yields estimates for Anam's production of each TI
Product device on a weekly basis, or more frequently if there
is a material change in the estimated MPY or process yield
last communicated to TI.
7.07.02 Anam acknowledges that the quantities of Wafer Outs TI
specifies in TI Forecasts and of wafer starts TI specifies in
the TI Start Plans are dependent on the accuracy of such MPY
and process yield estimates, as provided by Anam. Therefore,
if with respect to any particular TI Product device type,
Anam's actual integrated yield (i.e., the cumulation of the
MPY and the process yield) exceeds the integrated yield
estimate last furnished by Anam to TI in time to allow TI to
adjust its Forecast or the TI Start Plan accordingly, then the
other provisions of this Article 7 notwithstanding, but
subject to TI's rights elsewhere provided in this Agreement
relating to inspection, quality, reliability, warranty and the
like, TI shall purchase such excess of such device type, but
only up to the Acceptable Yield Variance. For purposes hereof,
the "Acceptable Yield Variance" means [ * ]. Any such excess
so purchased by TI shall count against TI's loading
requirements elsewhere provided for hereunder.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
7.08 UNNECESSARY VARIATIONS. TI and Anam shall each use commercially reasonable
efforts to minimize unnecessary variations in order to achieve as nearly as
possible linear weekly shipments.
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7.09 PURCHASE ORDER PROCESS. Two weeks prior to the start of each quarter, at
the same time as the Quarterly Forecast, TI shall supply to Amkor a written
blanket purchase order. The purchase order shall be issued solely for
administrative/invoicing purposes and shall only provide the estimated amount
payable by TI to Amkor in U.S. Dollars. The purchase order shall not be binding
in any respect. Any terms and conditions expressed in any purchase order or
acknowledgment shall have no force and effect between the Parties.
7.10 REVISIONS. The Parties may agree in writing from time to time to revise the
periods covered by the rolling forecasts, the forecasting and ordering process,
the forecast and ordering data, and/or the technology by which the forecasts and
orders are communicated to take advantage of more efficient and effective means
of transacting business.
ARTICLE 8.0
PRICING
8.01 PRICING.
8.01.01 For TI Product wafers started by Anam in accordance with this
Agreement prior to January 1, 2002 and delivered to TI after
January 1, 2002, pricing shall be in accordance with the 2001
pricing. For TI Product wafers started after January 1, 2002
and delivered to TI in accordance with this Agreement, TI
shall pay Amkor an amount (the "Price") calculated in
accordance with this Article 8. [ * ].
[ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
ARTICLE 9.0
SHIPPING, PAYMENT AND PACKAGING
9.01 SHIPMENTS. Shipments shall be made FCA (INCO Terms), Facility (the "FCA
Point"), in accordance with the routing and "ship to" instructions in TI's
shipping instructions. All title and risk of loss or damage shall pass from
Amkor to TI upon Anam's delivery to the FCA Point, provided Anam has shipped the
TI Products in accordance with TI's reasonable routing and "ship to"
instructions and any other packing and shipping instructions. TI shall be
responsible for all shipping, handling and insurance costs from the FCA Point to
the destination of the shipment.
9.02 PAYMENT PROCEDURES.
9.02.01 On the day Anam makes shipment, Amkor shall send to TI a
shipping notice containing the number of TI Products shipped,
estimated amount payable, lot number, and purchase order
number. Amkor shall also provide, at the end
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of each week, a weekly invoice and reconciliation statement
showing all shipments made during the week and any special or
incidental fees incurred that week as authorized by this
Agreement (e.g., Hot Lot fees).
9.02.02 Subject to Sections 9.02.03, 9.02.04 and 9.02.05 below, TI's
payment shall be net thirty (30) days of each such weekly
invoice and reconciliation statement.
9.02.03 With respect to payments owed by AUSA under either Leasing
Agreement after the effective date of the AMPA, each party
hereto shall cooperate in good faith to determine the amount
of each Rent (as defined in each Leasing Agreement) and
Interim Rent (as defined in each Leasing Agreement) payment at
the time that TI and AUSA execute each purchase order under
such Leasing Agreement. At the time of such calculation, the
parties hereto shall calculate an amount (the "Withholding
Amount") that TI may withhold from each weekly payment made
pursuant to Section 9.02.2 after March 1, 2000 so that TI will
have withheld a sufficient amount to pay each Rent and Interim
Rent payment under each Leasing Agreement as it becomes due.
TI shall then withhold the Withholding Amounts, as calculated
and adjusted upon the signing of each purchase order under
each Leasing Agreement, from each payment due pursuant to
Section 9.02.2. In the event that a given weekly payment is
less than such Withholding Amount, TI shall withhold an
additional amount from subsequent weekly payments until it has
withheld the same amount that it would have withheld if the
given weekly payment was sufficient to cover such Withholding
Amount. The amounts withheld shall be deemed payments towards
the invoices pursuant to Section 9.02.2. On each date that
Rent and/or Interim Rent are due under either Leasing
Agreement, TI shall (to the extent it has been given timely
notice of the date and amount thereof as provided herein
below) pay the Rent and/or Interim Rent to Citicorp or CBL, as
the case may be, due thereunder as of such date from such
withheld amounts, but only to the extent that it has withheld
payments pursuant to this Section 9.02.3. Anam, Amkor and AUSA
hereby agree to give to TI notice of the date and amount of
each payment due under each Leasing Agreement five (5)
business days prior to the date when payment is required to be
made. In the event that the Withholding Amount is insufficient
to enable TI to pay such Rent and/or Interim Rent on its
applicable due dates, TI may, in good faith and in its sole
discretion, increase the Withholding Amount to an amount that
it deems sufficient to enable it to make such Rent and/or
Interim Rent payments from the amounts withheld. Upon
performance in full of the Leasing Agreements and the release
of the Guaranties, TI shall remit to Amkor all withholdings
made hereunder and not paid to Citicorp or CBL, as applicable,
under either Leasing Agreement. Notwithstanding anything to
the contrary contained herein, TI shall not be liable for any
loss, cost, damage or expense suffered by Anam, Amkor or AUSA
as a result of TI's failure to make any payment of Rent and/or
Interim
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Rent to Citicorp or CBL, as the case may be, under any Leasing
Agreement unless caused by TI's gross negligence or willful
misconduct.
9.02.04 Notwithstanding any other provision in this Agreement, TI
shall have a right of offset to every amount due under this
Agreement to Anam and/or Amkor for any payments made by TI
pursuant to either Guaranty. Such offset may be applied in any
manner designated by TI to amounts due under this Agreement.
9.02.05 Beginning with the first week in January, 2001, and ending
with the second week in December, 2001, TI may withhold from
the payment due on each weekly invoice (the "Weekly Invoice")
from Amkor for products shipped to TI by Anam during each such
week, in addition to the Withholding Amount as set forth in
Section 9.02.03 and/or offsets pursuant to 9.02.04, an amount
(the "TAA Withholding Amount") equal to [ * ]. The TAA
Withholding Amounts shall be deemed payments towards the
Weekly Invoices pursuant to Section 9.02.02. In the event that
the payment due on a Weekly Invoice, after taking into account
Withholding Amounts pursuant to Section 9.02.03 and/or offsets
pursuant to Section 9.02.04, is less than the TAA Withholding
Amount, the difference between the payment due and the TAA
Withholding Amount (the "Carry Forward Amount") shall be
carried forward, added to and included in the next week's TAA
Withholding Amount, until the there is no longer any Carry
Forward Amount, or if there is a Carry Forward Amount after
the last Weekly Invoice, such Carry Forward Amount shall be
included in the December 31, 2001 technical assistance fee
payment due from Anam under the ▇▇▇▇▇ ▇ ▇▇▇.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9.03 DELIVERY.
9.03.01 Anam shall ship TI Products to TI's designated delivery points
on the dates required to meet the cycle time requirements
hereunder from the production start dates specified in TI
Start Plans (the "Scheduled Shipment Date"), but in no event
shall Anam ship TI Products sooner than three (3) days in
advance of the Scheduled Shipment Date. Except for those TI
Products which are subject to delays caused by holds or
storage at the wafer bank, as described in Sections 4.14 and
4.15 respectively, in the event that any TI Products are not
shipped in accordance with such delivery dates, Anam agrees to
ship via air freight (or as directed by TI) and to pay for all
extra costs.
9.03.02 In addition to the TI packing and shipping instructions, the
TI Products shall be packaged in accordance with applicable TI
Specifications and Korean Laws and U.S. laws to ensure safe
arrival at TI's designated delivery point.
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9.04 PACKING AND SHIPPING INSTRUCTIONS.
9.04.01 Anam will properly pack and describe shipments in accordance
with TI Specifications and applicable carrier and legal
regulations. Shipments will be made at the lowest possible
freight charges. [ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9.04.02 In case any shipment does not correspond to normal practice in
the industry (e.g., require special handling shipments or air
ride suspension, or air shipment over five hundred (500)
pounds, or over one hundred twenty (120) inches long or wide
or over fifty-six (56) cubic feet, etc.), Anam agrees to
notify TI's appropriate traffic department seventy-two (72)
hours prior to shipment for special shipping instructions.
9.04.03 Each box, crate or carton will show TI's full street address
and TI Start Plans lot number regardless of how shipped. On
air carrier shipments, a packing list shall accompany each
container and shall describe the contents of such container.
On all other shipments, Anam will provide a packing list to
accompany each shipment, referencing the appropriate TI Start
Plans lot number and purchase order number. The ▇▇▇▇ of lading
also will reference the TI Start Plan lot number and purchase
order number.
9.04.04 Anam is responsible for packing shipments correctly based on
the carrier/mode utilized. Charges for packing and crating
shall be deemed part of the Price and no additional charges
will be made therefor unless specifically requested by TI on
the TI Start Plans. Anam agrees to ship via the carrier
specified by TI.
9.05 RETURN MATERIALS AUTHORIZATION. TI Products returned to Anam or Amkor
pursuant to Sections 10.02 or 4.11 or as otherwise permitted hereunder shall be
returned freight collect. To the extent reasonably practicable, replacement
service by Anam or Amkor shall be made on an expedited, "courier", basis, to the
extent practicable, not to exceed [ * ], from the date of return, at no
additional expense to TI. Anam agrees to provide RMA as soon as reasonably
possible, but not exceeding five (5) business days after return by TI.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9.06 CUSTOMER CANCELLATION. Upon a cancellation of an order by a TI customer on
the basis of which customer order TI ordered a lot in production hereunder, of a
lot already in production at the Facility, TI shall have the right to cancel
such lot; provided, however that TI shall pay Amkor an amount equal to the Wafer
Termination Amount (as defined in Section 3.04.04).
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ARTICLE 10.0
WARRANTIES AND LIABILITY LIMITATIONS
10.01 PRODUCT WARRANTY. Anam warrants to TI that the TI Products as delivered to
TI hereunder will conform to the relevant Specifications and shall be free from
any defects in material or workmanship for a period of [ * ] from the date of
delivery to TI (hereinafter, the "Warranty Period").
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
10.02 PRODUCT WARRANTY REMEDY.
10.02.01 If, within the Warranty Period, any TI Products are in breach
of the warranty set forth in Section 10.01, TI shall notify
Anam promptly in writing of such breach, and Anam shall
promptly, at TI's option, either (i) if Anam still has the
capability to manufacture such TI Products, repair or replace
such TI Products at no cost to TI or TI's customers, or (ii)
credit to TI's account [ * ]. A Return Materials Authorization
("RMA") form previously issued by Anam must accompany any such
returned TI Products. Such return shipment shall be made by
TI, F.O.B. TI's shipping dock or such other shipping location
as may be designated by TI.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
10.02.02 If it is determined that a TI Product returned to Anam in
accordance with the foregoing has not breached the warranty
set forth in Section 10.01, TI shall reimburse Anam the costs
incurred by Anam in connection with Anam's treatment of such
TI Product as a product subject to Section 10.02.01, including
the return of such TI Product and the testing thereof.
10.03 ANAM AND TI INDEMNITY.
10.03.01 Anam will hold TI harmless from, and indemnify it against, all
costs and damages, up to the total amount paid by TI to Amkor
for a particular TI Product to which this indemnity relates,
incurred by TI resulting from any claims made by third parties
arising out of such TI Products manufactured by Anam, to the
extent that such TI Product breached the warranty set forth in
Section 10.01, provided the liability for such claims is not
due to any intentional misconduct or gross negligence by TI
(including without limitation, that of any TI employee or
agent).
10.03.02 TI will hold Anam and Amkor harmless from, and indemnify them
against, all costs and damages in excess of the total amount
paid by TI to Anam or
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Amkor for a particular TI Product to which this indemnity
relates, incurred by Anam or Amkor as a result of any claim
against Anam or Amkor by any customer of TI with respect to
such TI Product; provided, however, that in no case shall TI
be obligated to hold Anam or Amkor harmless or indemnify Anam
or Amkor against any claim arising out of the intentional
misconduct or gross negligence of Anam or Amkor (including
without limitation, that of any Anam or Amkor employee or
agent).
10.04 SOLE WARRANTY.
10.04.01 WITH RESPECT TO TI PRODUCTS, THE WARRANTY SET FORTH IN SECTION
10.01 STATES ANAM'S AND AMKOR'S SOLE WARRANTY, AND SECTION
10.02.01 STATE TI'S SOLE REMEDIES FOR THE BREACH OF SUCH
WARRANTY.
10.04.02 WITH RESPECT TO TI PRODUCTS, THE WARRANTIES IN THIS ARTICLE 10
ARE EXCLUSIVE AND STATED IN LIEU OF, AND ANAM AND AMKOR HEREBY
DISCLAIM, ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY, OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND,
EXCEPT AS PROVIDED IN SECTION 9 ("INDEMNITY BY ANAM") OF THE
PHASE 2 TAA AND THE PHASE 3 TAA AND THE CORRESPONDING
PROVISIONS OF ANY OTHER APPLICABLE TAA, NON-INFRINGEMENT. THE
PARTIES NEITHER ASSUME NOR AUTHORIZE ANY OTHER PERSON TO
ASSUME FOR THE PARTIES ANY OTHER LIABILITIES IN CONNECTION
WITH THE MANUFACTURE OR SALE OF SUCH PRODUCTS. THE WARRANTIES
SHALL NOT APPLY TO ANY OF SUCH PRODUCTS WHICH HAVE BEEN
REPAIRED OR ALTERED BY TI, EXCEPT AS AUTHORIZED BY ANAM, OR
AMKOR, OR WHICH SHALL BE SUBJECTED TO MISUSE, NEGLIGENCE,
ACCIDENT OR ABUSE BY TI OR ITS CUSTOMERS.
10.05 WARRANTY DISCLAIMER. ANAM AND AMKOR MAKE NO WARRANTY OR REPRESENTATION
THAT THE TI PRODUCTS DELIVERED HEREUNDER ARE, OR WILL BE, SUITABLE FOR USE AS
COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS OR ANY AVIATION, NUCLEAR, OR OTHER
APPLICATION THAT PROTECTS, SUPPORTS, OR SUSTAINS LIFE, WHERE THE FAILURE OF SUCH
COMPONENT TO PERFORM MAY RESULT IN SIGNIFICANT BODILY INJURY, CAUSE THE FAILURE
OF, OR AFFECT THE SAFETY OR EFFECTIVENESS OF SUCH DEVICE, SYSTEM OR APPLICATION.
NOTHING IN THIS SECTION 10.05 SHALL LIMIT THE WARRANTY UNDER SECTION 10.01.
10.06 LIABILITY LIMITATION. ANAM'S AND AMKOR'S TOTAL AGGREGATE LIABILITY TO TI
ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING UNDER THIS ARTICLE,
SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID BY TI TO AMKOR
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HEREUNDER; PROVIDED THE FOREGOING LIMITATION SHALL NOT APPLY TO BREACHES OF THE
PROVISIONS OF ANY TAA.
EXCEPT FOR TI'S OBLIGATION TO PURCHASE AND PAY FOR TI PRODUCTS, TI'S TOTAL
AGGREGATE LIABILITY TO ANAM AND AMKOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT, INCLUDING UNDER THIS ARTICLE, SHALL NOT EXCEED THE AGGREGATE AMOUNTS
PAID BY TI TO ANAM HEREUNDER.
IN NO EVENT SHALL ANY PARTY BE LIABLE FOR LOST PROFITS, COST OF PROCUREMENT OF
SUBSTITUTE GOODS OR ANY OTHER SPECIAL, DIRECT, INDIRECT, RELIANCE, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER
BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE PARTY AGAINST
WHOM LIABILITY IS ASSERTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
ARTICLE 11.0
AMENDMENT OF CERTAIN PRIOR AGREEMENTS
11.01 The Parties agree that:
11.01.01 (i) Articles 5, 6, 7 and 8 and Sections 2.04 and 2.05 of the
▇▇▇▇▇ ▇ ▇▇▇, (▇▇) Sections III and IV of Annex A of the Phase
1 TAA, and (iii) the Amendment to the Phase 1 TAA, dated
September 29, 1997, each in their entirety, shall be of no
further force or effect and shall be replaced and superseded
by the terms and conditions of this Agreement. Except as
stated in the foregoing, the Phase 1 TAA shall not be
considered revised or amended in any way by this Agreement.
The Amkor Marketing Agreement dated as of August 1997 among
TI, Anam and Amkor shall be of no further force and effect and
shall be replaced and superseded by Section 10.01.02 of the
Phase 3 TAA and Annexes B and C of the Phase 2 and Phase 3
TAAs.
11.01.02 The Parties agree that all those royalty payments that
otherwise were payable by Anam to TI under Section 5.03 of
each of the Phase 1 TAA, the Phase 2 TAA and the Phase 3 TAA
that were suspended by agreement between the Parties shall be
reinstated, but only on a going forward and not an accrued
basis, for sales of non-TI Products by Anam following January
1, 2002.
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11.01.03 The Parties agree that maintenance fees payable by Anam to TI
for C05 testers that were suspended by agreement between the
Parties shall be reinstated, but only on a going forward and
not an accrued basis, effective as of January 1, 2002.
11.01.04 The Phase 3 TAA is further amended as follows:
(a) Section 1.08 (Future Technology Nodes) is amended to read
as follows:
1.08 FUTURE TECHNOLOGY NODES. Advanced Available Technology of
TI's next node (anticipated to be 0.10 micron, C027) of CMOS
logic processes or comparable processes that TI may develop
and intends to qualify for TI's own use.
(b) Article 15.01 (Term) of the TAA3 is amended to read as
follows:
15.01 TERM. The Term shall commence on the Effective Date and
shall continue through December 31, 2007, unless (i)
terminated under Article 11.00 or otherwise according to this
Agreement, or (ii) terminated in accordance with Section 15.02
below if the Parties fail to negotiate in good faith and
execute either a new technical assistance agreement or an
amendment to this Agreement for Future Technology Nodes on or
before December 31, 2002. Accordingly, the Parties agree to
discuss the transfer of the Future Technology Node based on
TI's C027 and not C035 as originally anticipated; provided,
however, that if TI's needs for C035 change the Parties will
discuss in good faith the transfer of C035 to Anam. This Phase
4 TAA will anticipate that TI commence delivery of the
applicable process documentation for C027 to Anam
approximately six (6) months prior to the time that the
process will undergo qualification at TI's internal
fabrication facility and that Anam will qualify the process
for manufacture and delivery of TI Products pursuant to this
Agreement not later than six (6) months following such TI
internal qualification
11.01.05 LBC5 TECHNOLOGY TRANSFER. In consideration for the release of
claims by Anam and AMKOR pursuant to Section 2.03 herein and
the royalty set forth below, TI shall, commencing
approximately three (3) months prior to the time TI expects to
qualify the LBC5 process in TI's own internal fabs, deliver to
Anam documentation of such process in comparable detail as
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provided to Anam for the C05 process pursuant to the Phase 3
TAA and shall grant to Anam a nonexlusive license only under
TI's applicable Trade and Industrial Secrets, Advanced
Available Technology, Associated Technical Information and
Technical Information for its LBC5 process technology on the
same terms and conditions as TI's C05 process technology was
previously transferred and licensed by TI to Anam pursuant to
Section 5.01 and 5.02 the ▇▇▇▇▇ ▇ ▇▇▇. Accordingly, the
definitions and provisions of the Phase 3 TAA are hereby
amended as necessary to include the LBC5 technology
deliverables and to accommodate the delivery of the
aforementioned process technology and the license of same as
provided herein. TI currently estimates that such process will
undergo qualification at TI on or about October of 2002 and
accordingly expects to begin delivery of the process on or
about July 1, 2002 and shall continue to provide to Anam
updates to such process until the process is qualified at TI.
Anam shall pay to TI a royalty of [ * ] for all non-TI
Products (but not TI Products) manufactured by Anam using the
LBC5 technology in accordance with Section 5.03 of the ▇▇▇▇▇ ▇
▇▇▇. Without limiting the foregoing, TI shall provide to Anam,
at no additional cost to Anam, all necessary training of Anam
engineers at the TI facility in Dallas, Texas and the Anam
facility in Buchon, Korea, to accomplish the effective
transfer of the LBC5 technology from TI to Anam. Until the
LBC5 process is qualified in the Anam facility, TI shall, upon
Amkor's request, fabricate prototype Wafers based on the LBC5
process for Amkor customers; provided however, that (i) Anam
shall provide the reticles, (ii) TI has completed its own
internal qualification of the process, (iii) prototyping shall
be limited to not more than [ * ] distinct reticle sets
(design iterations), and (iv) in no event shall TI be required
to produce for Anam more than [ * ] wafers in the aggregate.
TI shall not be required to provide any warranty with respect
to such prototype wafers. Pricing will be agreed upon
consistent with the wafer pricing that Anam is required to
provide to TI under this Agreement.
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
ARTICLE 12.0
TERM
This Agreement shall be effective upon its execution by the Parties and shall
continue in effect until December 31, 2007.
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ARTICLE 13.0
CONFIDENTIALITY
This Agreement incorporates Article 10 of the Phase 2 TAA and Article 10 of the
Phase 3 TAA in their entirety herein by reference, and such articles shall be
considered as part of this Agreement so long as this Agreement is effective,
provided, however, that nothing herein shall limit the survival of such
obligations as set forth therein. Both Anam and Amkor expressly agree to be
bound by Article 10 of the Phase 2 TAA and Article 10 of the ▇▇▇▇▇ ▇ ▇▇▇.
ARTICLE 14.0
TERMINATION AND DISPUTE RESOLUTION
14.01 TERMINATION. Where the following grants to a Party the right to terminate
this Agreement, such Party may exercise such right in accordance with this
Article 14. For the purpose of this Article 14, Anam and Amkor on the one hand,
and TI on the other hand, shall each be considered a Party.
14.01.01 Expiration or Termination of TAA. Unless extended, upon the
expiration of the term or the termination of the last effective TAA,
this Agreement shall terminate automatically but in accordance with
any terms set forth in such TAA; or
14.01.02 Mutual Agreement of the Parties. The Parties may mutually
terminate this Agreement, in which event the future relationship of
the Parties shall be determined by the Parties; or
14.01.03 An Uncured Material Breach. Subject to Sections 14.02,
14.03 and 14.04 of this Agreement, a Party may terminate this
Agreement, and at its option, any TAAs, in the event of an uncured
material breach hereof by the other Party. A material breach
includes without limitation a curable breach that is not cured in
accordance with Section 14.03.
14.02 RESOLUTION OF DISPUTES. It is the intent of the Parties that any breach of
this Agreement be resolved in an amicable manner, to the fullest extent
possible, and that any such resolution be reasonable in light of the rights and
obligations of the Parties. If any breach should arise which cannot be resolved
by the personnel of each Party directly involved, the following procedures of
Sections 14.03 through 14.04 inclusive shall apply in each of the circumstances
described below.
14.03 CURE. If either Party (the "Breaching Party") shall at any time breach
this Agreement, without any material causative fault on the part of the other
Party (the "Non-Breaching Party"), by failing to perform any provision of this
Agreement, the Non-Breaching Party may advise of its intention to terminate this
Agreement by providing formal written notice of breach pursuant to Section 15.13
to the Breaching Party specifying the breach. Notice for purposes of the
foregoing provided other than in strict accordance
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with Section 15.13 will not be effective. Notwithstanding the foregoing, this
Agreement will not be terminable if: (i) the breach specified in the notice is
remedied within the sixty (60) day period following receipt of the notice by the
Breaching Party or (ii) if the breach reasonably requires more than sixty (60)
days to correct, the Breaching Party has, within thirty (30) days from receipt
of the notice of breach, begun substantial corrective action to cure the breach
and submitted a written remediation plan to the Non-Breaching Party pursuant to
Section 15.13 providing a detailed explanation of the steps to be taken to cure
the breach as quickly as practicable, the Breaching Party diligently pursues
such corrective action, and such breach is actually cured within ninety (90)
days following receipt of the notice of breach. If any breach is not cured
within the time permitted, the Non-Breaching Party shall have the right to issue
a notice of termination of this Agreement within 90 days of the expiration of
the foregoing cure period by giving written notice thereof to the Breaching
Party. The Non-Breaching Party shall state in its notice of termination whether
it intends to exercise its option to terminate any TAAs. Upon the giving of such
notice of termination this Agreement shall terminate in accordance with Section
15.06. The Party receiving notice shall have the right to cure any such breach
up to the date of the notice of termination. In the event of a material breach,
the Non-Breaching Party shall have the right to suspend further implementation
or effectuation of its obligations under this Agreement affected by such breach,
and shall not be obligated to resume such activities until such breach has been
cured. This Section 14.03 shall run concurrently with the conciliation process
set forth in Section 14.04 below.
14.04 CONCILIATION PROCESS. At any time during the Term, upon the occurrence of
one or more breaches under this Agreement, the Non-breaching Party shall
promptly deliver written notification to the alleged Breaching Party setting out
in reasonable detail and in clear and concise language the good faith basis for
and the specifics of such breach. Within the applicable cure period provided in
Section 14.03, either Party has the right to demand the following meetings:
14.04.01 Upon fourteen (14) calendar days' notice, a meeting of the
project coordinators for the purposes of, among other things:
(a) assessing the good faith basis for the claimed breach;
(b) defining, assessing and prioritizing the alternatives
reasonably available to cure such breach or to correct
the circumstances or situations that gave rise to such
breach so as to make its reoccurrence unlikely; and
(c) adopting by unanimous vote, one or more curative or
corrective courses of action.
14.04.02 If, after meeting in accordance with Section 14.04.01, the
project coordinators are unable to resolve the breach, a
meeting of an advisory committee consisting of the Presidents
of Amkor, Anam and the TI Executive
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Vice President responsible for the Semiconductor Group and two
additional personnel of their choice, one of each from TI and
Anam or Amkor for further attempts at resolution, upon
fourteen (14) calendar days' notice.
14.04.03 If, after meeting in accordance with Section 14.04.02, such
advisory committee is unable to resolve the dispute, a meeting
of the respective Chief Executive Officer of each of TI and
Anam or Amkor for the purpose of attempting to resolve the
breach, upon fourteen calendar days' notice.
14.05 REMEDIES, INJUNCTIVE AND OTHER EQUITABLE RELIEF. Upon the failure to cure
a material breach by either Party of any provision of this Agreement, the
Non-Breaching Party shall have the right to pursue all available remedies at law
or in equity that it may elect, including but not limited to specific
performance or injunctive relief, in order to obtain the benefits which have
been provided pursuant to this Agreement and the TAAs, or to obtain adequate
recourse or compensation in the event the same are not so provided.
14.06 TERMINATION PROCEDURE. Following the issuance of a notice of termination
by the Non-Breaching Party in accordance with Section 14.03, the Parties shall
promptly meet and establish, in good faith, a reasonable transition plan that
will permit for a period not to exceed two years: (i) Anam, subject to the
payment of royalties under any TAA (including Section 5.03.01 of the Phase 2 TAA
and Section 5.03.01 of the Phase 3 TAA), to continue to use the technology
provided to it under such TAA so that it will have the ability to continue in
the foundry business using TI technology and at the same time transition to
another process technology by the end of such period, and (ii) TI to continue to
purchase TI Products from Amkor in the manner provided in this Agreement so that
TI's supply of products will not be interrupted in such period while TI
transitions to another source for such products. If during the transition
period, Amkor or Anam repeatedly and materially fails to fulfill TI's reasonable
requirements for TI Products, TI may terminate the transition period upon sixty
days' notice.
14.07 FORCE MAJEURE.
14.07.01 Should either Party be prevented from performing its
contractual obligations under this Agreement due to the cause
or causes of force majeure such as new acts of war or
aggression (declared or undeclared) by North Korea or other
third country or economy, fire, storm, flood, typhoon or other
severe weather conditions, earthquake, strike, student unrest,
legal restraints, government or like interference, judicial
action, accidental damage to equipment, as well as any other
cause outside the control of that Party, that Party shall not
be liable to the other Party for any delay or failure of
performance caused by any of the above events. "Force majeure"
shall include the failure to obtain such license(s) and other
approvals, including export licenses, as are required by U.S.
law or other applicable law for the equipment, software,
technology and Products to be provided pursuant to the
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terms of this Agreement, except where such failure is due to a
Party's breach of this Agreement.
14.07.02 In addition to providing notice in the manner set out in
Section 15.13, the Party affected by Force Majeure shall
notify the other Party of the occurrence of any of the events
set out in Section 15.16.01 in writing by cable, telex,
facsimile, or electronic mail within the shortest possible
time.
14.07.03 Should the delay caused by any of the above events continue
for more than ninety (90) days, the Parties shall settle the
problem of further performance of the Agreement through
friendly negotiations as soon as possible with the objective
of restructuring the relationship among them such that the
effects of such delay are minimized. If the Parties cannot
agree on a mutually acceptable solution within six (6) months
of any Party request for such negotiations either Party may
terminate this Agreement and any TAAs to the extent permitted
by, and in accordance with, Section 14.06.
ARTICLE 15.0
MISCELLANEOUS
15.01 ANNEX. Annexes A, B and C of this Agreement are an integral part hereof.
All amendments, supplements and alterations to this Agreement shall be made in
written form and signed by the authorized representative of the Parties, and
such shall thereafter form an integral part of this Agreement.
15.02 SEVERABILITY. In the event that any of the provisions of this Agreement,
or portions thereof, or documents referenced herein are held to be unenforceable
or invalid by any court of competent jurisdiction, the validity and
enforceability of the remaining provisions, or portions thereof, shall not be
affected thereby. If the purposes of this Agreement are substantially frustrated
by any events contemplated by this Section 15.02, a Party may terminate this
Agreement in the manner and as if the conditions of Section 14.01.02 existed.
15.03 CONFIDENTIALITY OF THIS AGREEMENT. No Party, without the prior written
consent of the other, shall either issue or cause the issuance of a press
release or public announcement or disclose to any third party the contents of
this Agreement or the transactions contemplated hereby. Under this requirement a
Party shall be permitted to disclose, under confidentiality and use
restrictions, such terms of this Agreement as are reasonably required to be
disclosed in response to reasonable requests made by governmental authorities or
potential investors or lenders not affiliated with any semiconductor developer
or manufacturer in the ordinary course of seeking governmental approvals or for
obtaining debt or equity financing, bank credit or the like.
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Notwithstanding the foregoing or anything to the contrary set forth in the TAAs,
each party may disclose the existence of this Agreement and the general fact
that the Parties have entered into a technology transfer agreement and this
Agreement.
15.04 HEADINGS. The headings of the Articles and Sections of this Agreement are
for reference purposes only and shall not be deemed to affect in any way the
meaning or interpretation of the Articles to which they refer.
15.05 WAIVER. The failure on the part of any Party to exercise or enforce any
rights conferred on it hereunder shall not be deemed to constitute a waiver of
any rights nor operate to bar the exercise or enforcement of any rights at any
time or at times thereafter.
15.06 FURTHER ACTIONS. The Parties agree to execute and deliver to each other
all additional instruments, to provide all information, and to do or refrain
from doing all further acts and things as may be necessary or as may be
reasonably requested by any Party hereto, more fully to vest in, and to assure
each Party of, all rights, powers, privileges, and remedies herein intended to
be granted to or conferred upon such Party.
15.07 ASSIGNMENT. A Party shall not assign or delegate this Agreement or any
right or duty under this Agreement or portion thereof (including an assignment
or delegation by operation of law, other than in connection with a
reincorporation) without the prior written consent of the other Parties.
Notwithstanding the foregoing, TI may assign this Agreement or any obligation
hereunder to any Subsidiary of TI upon written notice to Anam. In such event, TI
shall guarantee such Subsidiary's performance of its obligations under this
Agreement and such assignment obligation shall not release TI of any of its
obligations hereunder. Notwithstanding the foregoing, Amkor and Anam may assign
or delegate their rights and duties hereunder among themselves or to their
respective Affiliates, provided that such assignment or delegation does not
cause TI to incur any additional obligations or costs. In the event of such
delegation or assignment, Amkor and Anam shall guarantee such Affiliate's
performance of their obligations under this Agreement and such assignment
obligation shall not release Amkor or Anam of any of their obligations
hereunder. Amkor and Anam shall be jointly and severally liable for the
obligations and liabilities of either of them under this Agreement. Any
attempted assignment or delegation, other than the delegation expressly
permitted in this Section 15.07, shall be null and void. It shall be deemed a
breach under this Agreement by Anam and Amkor if Anam transfers any of the
outstanding capital stock of AUSA without the prior written consent of TI.
15.08 AMKOR-ANAM AGREEMENT. Amkor and Anam represent and warrant to TI that they
will enter into and cause to remain in effect an agreement providing for, inter
alia, Amkor and its Affiliates to sell all of Anam's wafer manufacturing
capacity to third parties, including TI as contemplated by this Agreement.
15.09 NO THIRD PARTY BENEFICIARIES. Except as specifically set forth or referred
to herein, nothing express or implied in this Agreement is intended to or shall
be construed to confer
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upon or to give any person other than the Parties hereto and their successors or
assigns, any rights or remedies under or by reason of this Agreement.
15.10 ENGLISH. All correspondence of which any Party is a recipient or sender
shall be in English. All documents which are issued in Korea pursuant to this
Agreement shall be provided to TI in English translation.
15.11 INSURANCE. Anam shall obtain and maintain throughout the Term such kinds
and amounts of insurance as are reasonable and customary in the trade, including
but not limited to insurance covering product liability, theft, fire, worker's
compensation, etc.
15.12 INTEGRATION. This Agreement supercedes in its entirety the Manufacturing
and Purchase Agreement between the Parties dated July 1, 2000, and all previous
amendments thereto. This Agreement, and the ▇▇▇▇▇ ▇ ▇▇▇, ▇▇▇▇▇ ▇ TAA, and Phase
3 TAA contain the entire understanding and agreement among the Parties with
respect to the subject matter hereof and thereof and supersede all prior oral
and written understandings and agreements relating thereto, and may not be
modified, discharged or terminated except by the written consent of the Parties.
In the event of any conflict between this Agreement and either the Phase 1 TAA,
the Phase 2 TAA, and the Phase 3 TAA, the terms of this Agreement shall prevail.
15.13 NOTICES. All notices, orders and other communications related to the
operations and transactions contemplated by this Agreement shall be transmitted
to the appropriate Party in the manner set forth in the sections governing such
notices, orders or communications, or as otherwise may be agreed. Any formal
communications pursuant to this Agreement, including without limitation notices
under Article 14 shall be served on each Party in writing via facsimile
transmission (confirmed by registered letter), registered letter, telex or
prepaid cable to the following persons at the following addresses and fax
numbers:
if to TI:
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇/▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇/▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
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if to either Anam or Amkor, both to:
Mr. Ki ▇▇▇ ▇▇▇▇▇
222, Dodang-dong
Wonmi-gu, Buchon
Kyunggi-do, Korea 420-130
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
▇▇. ▇▇▇-▇▇▇▇ ▇▇▇
▇▇▇, ▇▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇-▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ 420-130
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
and
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇ Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ #▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
with copies to:
Mr. Ki ▇▇▇▇▇ ▇▇▇, Esq.
Hanol Law Offices
14th Floor, Oriental Chemical ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇-▇▇▇▇, ▇▇▇▇▇-▇▇
▇▇▇▇▇, ▇▇▇▇▇ 100-718
Fax: ▇▇ ▇▇ ▇▇▇ ▇▇▇▇
and
▇▇▇▇▇ ▇▇▇▇▇, Esq.
General Counsel
Amkor Technology, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇-▇▇▇▇
15.14 GOVERNING LAW. This Agreement shall be governed by, construed and enforced
in accordance with the laws of Texas, U.S.A., as applicable to contracts made
and fully performed in Texas. The United Nations Convention on the International
Sales of Goods
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shall not apply to this Agreement or any transactions contemplated by this
Agreement. Anam and Amkor hereby irrevocably consent to the jurisdiction of the
courts of the State of Texas and of Federal courts of the U.S.A. located in the
State of Texas.
15.15 REMEDIES. The Parties acknowledge that no specified remedies, such as
liquidated damages, are provided for in this Agreement for breaches of several
of the obligations hereunder, such as the minimum purchase, forecasting,
manufacturing and cycle time performance obligations. The Parties agree to
review each Party's historical performance hereunder from time to time during
the Term and discuss the appropriateness of agreeing on specified remedies in
light of such performance. The Parties contemplate that the first such review
shall take place in or around October 1998. The absence of any specified
remedies herein shall in no event limit either Party's rights in law or in
equity for breaches by the other.
15.16 COUNTERPARTS. This Agreement may be executed in one or more counterparts,
in English, each of which shall be enforceable by or against the Parties
executing such counterparts, and all of which together shall constitute one
instrument.
15.17 NO CONFLICTS. Each of Anam and Amkor hereby represent and warrant that the
execution and performance of this Agreement and the Deferred Purchase
Arrangements will not conflict with, constitute a default under or violate (i)
any terms conditions or provisions of any of the organization or governance
documents of either Anam or Amkor, (ii) any of the terms, conditions or
provisions of any document, agreement or other instrument to which Anam and/or
Amkor is a party or by which either of them are bound, (iii) any law or
regulation binding upon Anam and/or Amkor, or (iv) any judgment, writ,
injunction, decree order or ruling of any court or governmental authority
binding on Anam and/or Amkor.
IN WITNESS WHEREOF, and intending to be legally bound hereby, TI, Anam and Amkor
have caused their duly authorized representatives to execute this Agreement.
ANAM SEMICONDUCTOR, INC. TEXAS INSTRUMENTS INCORPORATED
By:_________________________________ By:________________________________
Name: ______________________________ Name: _____________________________
Title: _____________________________ Title: ____________________________
Date: ______________________________ Date: _____________________________
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AMKOR TECHNOLOGY, INC.
By:_________________________________
Name: ______________________________
Title: _____________________________
Date: ______________________________
35
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ANNEX A
FIXED WAFER PRICE
[ * ]
[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
36
REDACTED COPY
ANNEX B
PERCENTAGE COMPLETION TABLE EXAMPLE:
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[ * ] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
1
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ANNEX C
C12 DEVICES
LC541
LC545
LC546
LC548
F452654
F452659
2