<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 30, 1998
REGISTRATION NO. 333-37235
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
POST EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
AMKOR TECHNOLOGY, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3674 23-172-2724
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
AMKOR TECHNOLOGY, INC.
1345 ENTERPRISE DRIVE
WEST CHESTER, PA 19380
(610) 431-9600
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
FRANK J. MARCUCCI
CHIEF FINANCIAL OFFICER
AMKOR TECHNOLOGY, INC.
1345 ENTERPRISE DRIVE
WEST CHESTER, PA 19380
(610) 431-9600
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
Copies to:
<TABLE>
<S> <C>
LARRY W. SONSINI, ESQ. ALAN L. BELLER, ESQ.
DONNA M. PETKANICS, ESQ. YONG G. LEE, ESQ.
BRUCE M. MCNAMARA, ESQ. CLEARY, GOTTLIEB, STEEN & HAMILTON
WILSON SONSINI GOODRICH & ROSATI ONE LIBERTY PLAZA
PROFESSIONAL CORPORATION NEW YORK, NY 10006
650 PAGE MILL ROAD (212) 225-2000
PALO ALTO, CA 94304
(650) 493-9300
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
================================================================================
<PAGE> 2
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULE
(a) Exhibits
<TABLE>
<C> <S>
10.21 Amendment to Technical Assistance Agreement dated as of
September 29, 1997 between Texas Instruments Incorporated
and Anam Industrial Co., Ltd. and related portions of
Technical Assistance Agreement dated as of January 28,
1997.+
</TABLE>
- ---------------
+ Confidential Treatment requested as to certain portions of this exhibit.
<PAGE> 3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement on Form S-1 to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of West
Chester, State of Pennsylvania, on the 30th day of April 1998.
AMKOR TECHNOLOGY, INC.
By: /s/ JAMES J. KIM
------------------------------------
James J. Kim
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT ON FORM S-1 HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JAMES J. KIM Chief Executive Officer and April 30, 1998
- --------------------------------------------------- Chairman
James J. Kim
* Chief Financial Officer and April 30, 1998
- --------------------------------------------------- Secretary (Principal Financial
Frank J. Marcucci and Accounting Officer)
* President and Director April 30, 1998
- ---------------------------------------------------
John N. Boruch
* Director April 30, 1998
- ---------------------------------------------------
Thomas D. George
* Director April 30, 1998
- ---------------------------------------------------
Gregory K. Hinckley
* /s/ JAMES J. KIM
- ---------------------------------------------------
James J. Kim
Attorney-in-fact
</TABLE>
<PAGE> 4
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------------------------------------------------- ----------------------------------
<C> <S> <C>
10.21 Amendment to Technical Assistance
Agreement dated as of September
29, 1997 between Texas
Instruments Incorporated and
Anam Industrial Co., Ltd. and
related portions of Technical
Assistance Agreement dated as of
January 28, 1997.+
</TABLE>
- ---------------
+ Confidential Treatment requested as to certain portions of this exhibit.
<PAGE> 1
Exhibit 10.21
AMENDMENT TO TECHNICAL ASSISTANCE AGREEMENT
THIS AMENDMENT (this "Amendment"), dated as of September __, 1997, is made by
and between Texas Instruments Incorporated, a Delaware corporation with its
principal place of business at 13500 North Central Expressway, Dallas, Texas
75265, USA ("TI") and Anam Industrial Co., Ltd, a corporation of the Republic
of Korea, with its principal place of business at Seoul, Republic of Korea
("Anam") to the Technical Assistance Agreement (the "TAA"), dated January 28,
1997, by and between TI and Anam.
RECITALS:
WHEREAS, Anam and Amkor Electronics, Inc., ("Amkor") have agreed, inter alia,
that Anam will market and sell all of Anam's output from the foundry that is
the subject of the TAA exclusively through Amkor and certain of its affiliates;
WHEREAS, Amkor is a subsidiary of Amkor Technologies, Inc., a Delaware
corporation that intends to engage in a public offering of its stock in the
United States; and
WHEREAS, Anam and TI wish to amend the TAA to recognize that all purchases of
TI products (as such term is defined in the TAA) will take place through Amkor;
NOW THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, Anam and TI, intending to be legally bound, hereby agree as
follows.
1. DEFINITIONS. Each capitalized and italicized term not defined herein has
the meaning set forth in the TAA.
2. AMENDMENT TO ARTICLE 8. The following is added as Section 8.01.08 to
Article 8 of the TAA:
8.01.08 Purchases of TI Products from Amkor Electronics, Inc.
(a) The Parties agree that all purchases of TI Products by TI
hereunder will be made by TI from Amkor Electronics, Inc.
("Amkor") and that all sales of TI Products hereunder will
be made by Amkor to TI.
(b) Anam shall enter into an agreement with Amkor obligating
Amkor to fulfill all of the obligations of Anam to TI
hereunder with in connection with the sale of TI Products,
including all of the obligations of Anam under this Article
8, under which agreement TI shall expressly be named a
third party beneficiary with respect to such obligations.
(c) Anam will assign (in whole or in part) its rights to
receive payment from TI for TI Products to Amkor;
(d) Anam shall provide TI with all information and assistance
necessary to enable TI to purchase TI Products from Amkor
in the same manner, and
<PAGE> 2
[EXECUTION COPY]
under the same terms as TI is otherwise entitled to purchase
such TI Products from Anam hereunder. Without limiting the
foregoing, Anam shall guarantee Amkor's performance,
including undertaking the performance of Amkor's obligations
should Amkor fail to perform the obligations set forth in
this Article 8 to TI's reasonable satisfaction.
(e) Nothing set forth herein shall limit either TI's
obligations to purchase TI Products in accordance with this
Agreement or Anam's obligations to sell such TI Products to
TI in accordance with this Agreement.
3. NO TRANSFER OF INFORMATION. Nothing set forth in this Amendment, as
such, authorizes Anam to provide any technology information received from TI to
Amkor.
4. GOVERNING LAW. This amendment shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas, U.S.A., as
applicable to contracts made and fully performed in the State of Texas.
5. COUNTERPARTS. This Amendment may be executed in counterparts which, taken
together, shall be considered one and the same agreement.
IN WITNESS WHEREOF, and intending to be legally bound hereby, TI and Anam have
caused their duly authorized representatives to execute this Amendment.
ANAM INDUSTRIAL CO., LTD TEXAS INSTRUMENTS INCORPORATED
By: /s/ IN KIL HWANG By: /s/ K. BALA
----------------------------- -----------------------------
Name: In Kil Hwang Name: K. Bala
Title: President & CEO Title: Senior Vice President
Semiconductor Group
Date: September 30, 1997 Date: 9-29-97
------------------------ ------------------------
2
<PAGE> 3
TECHNICAL ASSISTANCE AGREEMENT
This Technical Assistance Agreement, including the attachments hereto (the
"Agreement"), dated as of January 28, 1997 is made by and between TEXAS
INSTRUMENTS INCORPORATED, a Delaware, U.S.A. corporation, with its principal
place of business at 13500 North Central Expressway, Dallas, Texas 75265, U.S.A.
("TI"), and ANAM INDUSTRIAL CO., LTD., a corporation of the Republic of Korea,
with its principal place of business at Seoul, Republic of Korea ("Anam"). TI
and Anam are hereinafter referred to individually by their respective names or
as Party and collectively as Parties.
***
[Pursuant to section 16.04 hereof the parties to this agreement have not
consented to disclosure of the omitted material.]
***
<PAGE> 4
ARTICLE 8
TI LOADING OPTION, PRICING, SALES TERMS AND CONDITIONS,
REPRESENTATIONS AND WARRANTIES
8.01 TI PURCHASE OF PRODUCTS
8.01.01 Loading Obligations and Option to Purchase TI Products.
(a)(i) The Parties agree that throughout the Term: (i) Anam
shall sell to TI and/or TI's Affiliates (individually or
collectively), and (ii) TI and/or TI's
<PAGE> 5
Affiliates shall purchase TI Products (x) only after Product
Qualification is fully implemented, (y) so long as the TI
Products satisfy the contractual requirements of TI on quality,
pricing, cycle time, etc., and (z) to the extent that Anam is
not in breach of this Agreement, an absolute minimum of forty
percent (40%) of the installed Facility capacity of Anam at full
equipment installation and Product Qualification (the
"Capacity"), at such prices and upon such terms as are set forth
in this Article 8.00 and in Annex A hereto, provided however,
that TI shall not be deemed to be in breach of this Agreement so
long as its purchases of the TI Products are not less than 40%
on a six-month average basis. Anam agrees to take all reasonable
commercial efforts to work with TI with respect to this Section
8.01.
(ii) To the extent that during start-up of Anam
operations, or at any time thereafter, the monthly output of
Products (including TI Products) is at levels below the
Capacity, the amount of TI Products which TI shall be required
to purchase shall continue to be an amount equivalent to 40% of
such total Capacity.
(b) Anam's loading commitment is for all TI Products of like or
similar technology; provided, however, to the extent that a TI
loading request would require significant capital investment by
Anam, Anam shall not be obligated to make the commitment unless
the Parties mutually agree on new loading requirements, further
provided, in the event that the Parties do not so agree, then TI
shall have the right to reduce its then current loadings of Anam
without being in breach of this Article 8.00.
(c) Throughout the Term, TI shall have an irrevocable option, at
any time, to acquire an amount of the Products up to seventy
percent (70%) of the Capacity and Anam, shall sell to TI and/or
TI's Affiliates (individually or collectively) such amount of
Products at such prices and upon such terms as are set forth in
this Article 8.00 and in Annex A hereto, provided that to the
extent that during start-up of Anam operations, or at any time
thereafter, the monthly output of Products is at levels below
Capacity, the amount of Product to which TI shall have an option
to purchase shall continue to be an amount up to 70% of such
total Capacity. Further provided, that within sixty (60) days of
the execution of this Agreement, the Parties shall establish a
procedure whereby which the Parties will implement any such
option exercise(s) (and any decrease) on a transition basis
which will not be unduly disruptive of Anam operations or
contractual commitments.
(d) For this Section 8.01.01, the general procedures for
forecasting loading of TI Products shall be as set forth in
Section V of Annex "A".
<PAGE> 6
8.01.02 Pricing and Payment Terms.
(a) Anam shall sell TI Products to TI on a [*] basis in
accordance with the pricing formula provided in Section IV of
Annex A to this Agreement. For purposes of this Section
8.01.02(a) [*] shall be based on the following criteria: [*].
(b) All prices for TI Products shall be quoted and invoices
shall be rendered and paid in the currency of the United States
of America. Each shipment shall constitute an independent
transaction and TI shall pay for same in accordance with the
specified payment terms. Upon shipment of TI Products, Anam
shall invoice TI in accordance with said Annex A.
(c) In compliance with TI's obligations under this Agreement,
information relating to type, quantity and delivery of TI
Products shall be as set forth in the written purchase orders to
be issued by TI to Anam. Anam is obligated to and shall agree to
accept and perform according to the production schedules or as
in such TI purchase orders provided such purchase orders
otherwise conform to the terms and conditions of this Agreement.
In the event of any inconsistency between this Agreement and the
purchase order, this Agreement shall be controlling.
(d) Anam shall exert commercially reasonable efforts to achieve
linear shipments, defined as equal amounts for each work-week of
each month.
(e) Shipments shall be made F.O.B., Point of Export (the "Fob
Point"), in accordance with the "routing and ship to"
instructions in TI's purchase order. All title and risk of loss
or damage shall pass from Anam to TI upon Anam's delivery to the
Fob Point, provided that Anam has shipped the TI Products in
accordance with TI's routing and ship to instructions and any
packing and shipping instructions.
* 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.
<PAGE> 7
(f) Within thirty [30] days of the date of the invoice, TI shall
pay Anam the Purchase Order Amount for TI Products delivered to
the Fob Point, unless the TI Products fall TI's incoming
inspection tests, in which case TI may return the TI Products to
Anam and be under no further obligation to pay Anam for said
non-conforming TI Products.
(g) To the extent Anam does not satisfy its sort/probe yield
commitments under this Agreement, then the price of TI Products
shall be adjusted as per the pricing formula set forth in Annex
A, IV.
8.01.03 Delivery.
(a) The delivery dates indicated by TI on its purchase order for
TI Products are important elements of shipment and receiving of
TI Products. Anam agrees to accept any TI purchase order,
provided that any such purchase order: (i) does not exceed
seventy (70) percent of Anam's then current capacity and (ii)
does not require delivery within a lead time which is
commercially unreasonable or inconsistent with Anam's
manufacturing cycle times. Anam agrees to take all reasonable
efforts so that the TI Products shall be delivered to TI's
designated delivery point on the dates set forth in any purchase
order(s), and in accordance with industry competitive cycle
times. In the event that any TI Products are not shipped in
accordance with such delivery dates, or competitive cycle times,
Anam agrees to ship via air freight (or as directed by TI) and
to pay for all extra costs.
(b) 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.
8.01.04 Warranties and Representations.
(a) Anam warrants and represents to TI that the TI Products will
conform to the Specifications and shall be free from any defects
in function, material, appearance and workmanship for the longer
of: (i) a period of [*] from the date of TI sale, or (ii) such
warranty periods provided by [*] (hereinafter, the "Warranty
Period").
(b) If, within the Warranty Period, the TI Products are in
breach of said warranty, TI shall notify Anam promptly in
writing of the defect, and Anam shall promptly, at TI's option,
either repair or replace any defective TI Products [*], or
credit to TI's account [*]
* 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.
<PAGE> 8
[*]. An 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(s) or such other shipping location
as may be designated by TI.
(c) Anam will hold TI harmless from and indemnify it against all
claims made by third parties arising out of the operations of
Anam or the Products manufactured by Anam, including all acts or
omissions by Anam personnel (whether or not such personnel are
direct employees of Anam, provided, however, that liability for
such claims is not due to any direct act or omission of TI
(including without limitation, that of any TI employee or
agent).
(d) THE WARRANTIES IN THIS AGREEMENT ARE EXCLUSIVE AND STATED IN
LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY, OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND NEITHER
ASSUME NOR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR THE PARTIES
ANY OTHER LIABILITIES IN CONNECTION WITH THE MANUFACTURE OR SALE
OF THE PRODUCTS. THE WARRANTIES SHALL NOT APPLY TO ANY OF THE
PRODUCTS WHICH HAVE BEEN REPAIRED OR ALTERED BY TI, EXCEPT AS
AUTHORIZED BY ANAM, OR WHICH SHALL BE SUBJECTED TO MISUSE,
NEGLIGENCE, ACCIDENT OR ABUSE BY TI.
(e) Only with respect to the Products, and only during the
Warranty Period, TI will hold Anam harmless from and indemnify
Anam against all claims made by third parties arising out of
defects in the Products so long as said defects are solely
attributable to the Technical Information, and not to any
manufacturing fault of Anam.
8.01.05 Return Material Authorization.
(a) Defective material shall be returned freight collect to
Anam. Replacement, ("Hot Lot") service by Anam shall be made on
an expedited, "courier", basis.
(b) 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.
<PAGE> 9
8.06 Purchase Order Quantities. In accordance with paragraph
8.01.01(a), Anam shall ship to TI the quantity(ies) of TI Products
specified in purchase orders placed under this Agreement.
8.01.07 Packing and Shipping Instructions.
(a) 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. TI may assist Anam by providing freight
classifications or classifying material. Anam will insure or
declare value on shipments except on parcel post, unless TI
specifies otherwise. On shipment where value is declared, Anam
will ship prepaid insured for a minimum of the equivalent of
U.S. dollars fifty (U.S. $50.00) to facilitate tracing. If
shipping by air carrier, Anam will ship freight prepaid. Anam
shall consolidate the air and surface shipments on single bills
of lading insofar as possible so as to avoid premium freight
costs unless instructed otherwise by TI.
(b) 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.
(c) Each box, crate or carton will show TI's full street address
and purchase order 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 purchase order number. The
bill of lading also will reference the purchase order number.
(d) Anam is responsible for packing shipments correctly based on
the carrier mode utilized. Charges for packing and crating shall
be deemed part of the purchase price and no additional charges
will be made therefor unless specifically requested by TI on the
purchase order. Anam agrees to ship via the carrier specified by
TI.
<PAGE> 10
ARTICLE 9
TRADEMARKS
9.01 NO USE OF TI TRADEMARKS. Except as provided in Section 9.02, neither
Anam nor any of its third party customers shall, at any time, in any place or in
any manner, utilize the trademarks of TI, or its Affiliates or any name, mark,
device or logo confusingly similar thereto, in connection with Anam, the
business activities of Anam or the manufacture, use, lease, sale or other
disposition of Products in any other way.
9.02 LIMITED TRADEMARK USE. Only with respect to TI Products and, then, only
to the extent authorized in writing by TI, Anam may symbolize or otherwise mark
such TI Products with TI trademarks trade names, devices or other TI proprietary
logos. Except as authorized pursuant to this Section 9.02, the provisions of
Section 9.01 shall govern.
ARTICLE 10
DISCLAIMERS AND LIMITATIONS OF LIABILITY
10.01 PATENT INDEMNITY BY ANAM. Anam shall defend any suit or proceeding
brought against TI insofar as such suit or proceeding is based upon a claim that
Products manufactured by Anam, or any process carried out by Products or any
process used in the manufacture of Products, constitutes direct infringement of
any duly issued patent, or any maskwork right, copyright or trade secret, and
Anam shall pay all damages and costs finally awarded therein against TI,
provided however, Anam will not be obligated to indemnify and hold TI harmless
if said infringement solely resulted from Anam's implementation or utilization
of Advanced Available Technology.
10.02 PRODUCT LIABILITY. For any Products other than TI Products TI shall
bear no responsibility or liability with respect to any claims or suits against
Anam by third parties and shall be under no obligation to indemnify or hold
harmless Anam for any liabilities, losses, expenses or damages incurred or
suffered by Anam resulting from, or caused by, the defective or allegedly
defective manufacture, storage, use, sale or transportation by Anam or others of
any Products, in which the Trade and Industrial Secrets of TI or other Technical
Information of TI has been utilized or applied.
10.03 HOLD HARMLESS. Anam will hold TI harmless from and indemnify it against
all claims made by third parties arising out of the operations of or the
Products manufactured or sold by Anam, to any third party including all acts or
omissions by Anam's personnel (whether or not such personnel are direct
employees of Anam or have been obtained from TI on a seconding or contractual
basis).
<PAGE> 11
10.04 NOTICE OF CLAIMS. Any provision herein to the contrary notwithstanding,
both Anam and TI shall promptly advise the other whenever it shall become
apprised of any claim which is of a nature comprehended by this Article 10.00.
<PAGE> 12
[*]
ARTICLE 11
EXPORT CONTROLS
11.01 Anam understands and acknowledges that Products and technology
(regardless of the form in which they are provided), including software,
received from TI under this Agreement may be under validated export license
control of the United States or other countries. Anam agrees to comply with
applicable export control laws, and shall be responsible for obtaining all
export, import and other licenses related to export, re-export or import of
Products, software or information by it. Anam specifically assures TI that
without prior authorization from the U.S. Department of Commerce, it shall not
knowingly export or re-export, directly or indirectly, any technology (including
software) received from TI, or any direct product or such technology or any
product of Anam, to any recipient, destination or country to which such export
or re-export is restricted or prohibited by U.S. law, including, but not limited
to the Democratic People's Republic of North Korea. The granting of all required
import and export licenses shall be a condition precedent to TI's obligations
under this Agreement. TI shall have no liability to Anam if any licenses or
approvals are denied. This Article shall survive termination or expiration of
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.
<PAGE> 13
11.02 Anam further agrees to obtain any necessary export license or other
documentation prior to exportation of any product or technical data, including
software, acquired from TI or any product of such technical data. Accordingly,
Anam shall not sell, export, re-export, transfer, divert or otherwise dispose of
any such product or technical data directly or indirectly to any person, firm or
entity, or country or countries, prohibited by United States or non-U.S. laws or
regulations. Further, Anam shall give notice of the need to comply with such
laws and regulations to any person, firm or entity which it has reason to
believe is obtaining any such technical data or product from Anam with the
intention of exportation. Each Party shall secure, at its sole expense, such
licenses and export and import documents as are necessary for each of them to
fulfill its obligations under the Agreement
11.03 The terms of this Article 11.00 shall survive termination or
expiration of this Agreement.
ARTICLE 12
CONFIDENTIALITY
12.01 GENERAL OBLIGATION OF CONFIDENTIALITY AND-NONDISCLOSURE. Anam hereby
recognizes that the value of the Technical Information, Technical Data, Advanced
Available Technology and Trade and Industrial Secrets (collectively the
"Confidential Information") is attributable substantially to the fact that the
said information, know-how and technologies of TI are maintained by TI, its
Affiliates and TI Joint Ventures in the strictest confidentiality and secrecy
and generally are unavailable to others in Korea and elsewhere without the
expenditure of substantial time, effort or money. Anam therefore covenants and
agrees to keep strictly secret and confidential the Confidential Information,
whether disclosed by TI, a TI Affiliate or TI Joint Venture, in accordance with
the following provisions of this Agreement. Anam agrees that the Confidential
Information which they receive pursuant to this Agreement is received only for
use by Anam and not by any Affiliate and only in the Facility and to the extent
provided in this Agreement. Except as provided in Section 12.06 of this
Agreement, Anam agrees to keep the Confidential Information confidential until
ten (10) years after the expiration or termination of this Agreement, provided
however that Confidential Information in the form of source code for any
software or microcode will be kept confidential for an indefinite period;
further provided that all Confidential Information is and shall remain
exclusively owned by TI, and the grant in this Agreement of rights therein or
access thereto does not transfer to Anam any present or future ownership rights
in the Confidential Information.
12.02 DISCLOSURE TO THIRD PARTIES. Except and only to the limited extent
necessary to market its foundry services to third parties, Anam hereby covenants
and agrees not to disclose all or any portion of the Confidential Information to
any third Party under any circumstances whatsoever. In implementation of the
foregoing covenant, Anam shall not disclose any of the Confidential Information
to any of such third party's respective employees or other personnel except to
those limited few persons for whom such disclosure is necessary for the
effective performance of evaluation of the manufacturing capability of Anam,
and, in each case, only to the extent required for such effective performance,
and only if such third party executes a nondisclosure agreement
<PAGE> 14
("NDA") in the form and substance approved by TI and a copy of such agreement is
provided to TI. TI shall be named as a third party beneficiary of any such NDA.
Before delivering any Confidential Information to a third party pursuant hereto,
Anam shall identify for TI the Confidential Information Anam intends to so
deliver; Anam shall not deliver to any third party any Confidential Information
the delivery to such third party of which TI objects to.
12.03 EXECUTION OF CONFIDENTIALITY AND SECRECY AGREEMENTS. Anything to the
contrary in this Article 12.00 notwithstanding, Anam shall not disclose any
Confidential Information to any of its respective employees or other personnel
unless and until such employees or other personnel have, prior to such
disclosure, executed a written NDA in form and substance satisfactory to TI,
with respect to the use, disposition and disclosure of Confidential Information
to be disclosed to each such employee or other personnel of Anam pursuant to
Section 12.03 hereof.
12.04 MARKING OF TECHNICAL DATA EMBODYING TRADE AND INDUSTRIAL SECRETS. To
implement the covenants and obligations of Anam pursuant to this Article 12.00,
Anam shall cause all Technical Information and Technical Data relating to or
containing information concerning the Trade and Industrial Secrets, including,
but not limited to sketches, drawings, reports, memoranda, blueprints,
photographs, recording media and notes, and all copies, reproductions, reprints
and translations thereof, to be plainly marked to indicate the secret and
confidential nature thereof and to prevent unauthorized access thereto and
unauthorized use or reproduction thereof.
12.05 MEASURES TO COMPEL COMPLIANCE. To further implement the covenants and
obligations of Anam pursuant to this Article 12.00, Anam shall take all
commercially reasonable efforts, including, but not limited to court proceedings
at its own expense, to compel compliance by its respective employees, other
persons and any third Party.
12.06 LIMITATION AND SURVIVAL OF OBLIGATIONS. The covenants and obligations
undertaken by Anam pursuant to this Article 12.00 shall not apply to any Trade
and Industrial Secrets which shall hereafter become published by TI or otherwise
become generally available to the public, except in consequence of a willful or
negligent act or omission by Anam, in contravention of the obligation herein
above set forth in this Article 12.00, and such obligations shall, as so
limited, survive expiration or termination of this Agreement, for a period of
ten (10) years from the date of expiration or termination of this Agreement
12.07 ANAM PROCEDURES. As soon as practicable hereafter, Anam shall
establish and implement rules and procedures with the cooperation of TI which
are not inconsistent herewith and which are sufficient to comply with Anam's
obligations set forth in this Article 12.00 as well as for the protection of
TI's intellectual property, which such procedures shall require the prior
written approval of TI, which approval shall not be unreasonably withheld by TI.
<PAGE> 15
12.08 TI RIGHT OF INSPECTION, AUDIT AND RECOMMENDATION. TI shall have the
right, at any time, to inspect the Facility, and to review and audit the rules
and procedures established by Anam as required by Article 12.00, for the
purposes of determining the sufficiency of such rules and procedures and their
implementation, to comply with Anam's obligations set forth in Articles 12.00.
Furthermore, TI shall have the right to make recommendations, not inconsistent
with TI practices in like TI facilities to Anam for complying with Anam's
obligations set forth in this Agreement. Anam, shall implement all such
reasonable recommendations within a reasonable time after written request by TI.
12.09 TI RIGHT TO SUSPEND DELIVERY OF TECHNICAL INFORMATION OF TI. If Anam
materially breaches this Agreement or unreasonably fails to implement any
recommendations made by TI pursuant to Article 12.00, then, TI shall have the
right to suspend its obligations under this Agreement with respect to delivery
of Technical Information and Technical Data without being in breach of this
Agreement. Nothing in this Article 12.00 shall limit TI's right to pursue other
available remedies for such failure to implement TI recommendations.
ARTICLE 13
TERMINATION, CURE OF BREACH, CONCILIATION, AND REMEDIES
13.01 TERMINATION OF AGREEMENT. This Agreement may terminate upon:
(i) EXPIRATION OF THE TERM (such termination shall occur
automatically), or
(ii) NO NEW TECHNICAL ASSISTANCE AGREEMENT. A Party may terminate
this Agreement if the Parties fail to negotiate a new technical
assistance agreement or an amendment to this Agreement for
Future Technology Nodes pursuant to Article 17.00, or
(iii) MUTUAL AGREEMENT OF THE PARTIES. The Parties may mutually agree
to terminate this Agreement, in which event the future
relationship of the Parties shall be determined by the Parties;
or
(iv) AN UNCURED MATERIAL BREACH. Subject to Sections 13.03 and 13.04
of this Agreement, a Party may terminate this Agreement in the
event of a material breach(es) of the other Party For purposes
of this Agreement, "Material Breach" shall mean:
(a) An event of Material Breach by Anam shall include, but not
be limited to, a breach of Articles 6.00, 7,00, 12.00, and
17.00, and Sections 5.02, 5.03, 8.01.01, 8,01.02, 16.04, 16.08,
18.05 and 18.07.
<PAGE> 16
(b) An event of Material Breach by TI, which shall include, but
not be limited to a breach of Articles 12.00 and 17.00 and
Sections 2.01.01, 2.03, 4.01, 8.01.01, 8.01.02, 16.04, and
18.05.
(v) NON-RECEIPT OF NECESSARY GOVERNMENT APPROVALS.
(a) As further provided in this subsection (iv), a Party may
terminate this Agreement in the event any government agency: (a)
does not grant any requisite approvals; (b) rescinds any
approvals; (c) makes a contingent approval; (d) imposes new
obligations on a Party, or (e) modifies/amends this Agreement or
any term or condition hereof.
(b) The Parties' continuing obligations under this Agreement
shall be contingent on the grant of governmental license(s) and
other approvals, including but not limited to appropriate or
requisite foreign exchange approvals and export licenses, as may
be required by United States law and Korean Laws and other
applicable laws to effectuate the transactions contemplated by
this Agreement. Any such requisite approvals shall be obtained
on or before March 31, 1997; or
(c) ADVERSE GOVERNMENT INTERVENTION. At any time during the
Term, should any government or government agency take any action
adverse to any Party or make recommendations to the Parties or
any of them requiring directly or indirectly, formally or
informally, alteration or modification of any term or condition
of this Agreement, or the transactions contemplated thereby, or
of the performance of the Parties under this Agreement,
including refusal to grant any necessary government approval, in
a manner which is material and adverse to one Party, then, if
said Party makes written request to the other Party within sixty
(60) days from said action or recommendation of the government
or government agency, the Parties hereto shall enter into good
faith negotiations with the objective of restructuring the
relationship between the Parties hereto in a manner such that
the adverse effect of said alteration or modification of this
Agreement will be minimized. If the Parties cannot reach an
acceptable modification to this Agreement within three (3)
months from the date of dispatch of said written request, or
within such longer period of time as mutually agreed upon,
either Party shall have the right to terminate this Agreement by
giving written notice to that effect to the other Party, except
as set forth in Section 16.15 of this Agreement. In the event
this Agreement is terminated pursuant to this Section
13.01(v)(3), all rights under this Agreement granted by either
Party shall cease and terminate. It is expressly understood and
agreed by the Parties hereto that in the event of such
termination, neither Party will incur any liability to the other
Party for any alleged default
<PAGE> 17
or breach in the performance of this Agreement arising from the
exercise of the right herein provided to terminate this
Agreement as the case may be unless it can be established by a
Party that the other Party acted in conjunction with said
government body or agency to bring about the intended result.
Except as provided in the previous sentence, compliance by
either Party with this section shall not be deemed a breach
under any provision of this Agreement.
(vi) FAILURE TO SATISFY DEFINED CONDITIONS PRECEDENT OR SUBSEQUENT. If
any event described in this Section 13.01(vi) fails to occur, with the
result that the purposes of this Agreement are substantially frustrated,
the Parties shall enter into good faith negotiations with the objective
of restructuring the relationship between them such that the effects of
such nonoccurrence shall be minimized. If the Parties cannot agree on a
mutually agreeable restructuring or modification of this Agreement
within six (6) months of any Party's request for such negotiations, any
Party shall have the right to terminate this Agreement forthwith in its
entirety under this Article 13.00 (except for the obligations under
Articles 10.00, 12.00, 13.00, Section 18.04 and any NDAs which shall
survive such termination) by giving written notice to that effect to the
other Parties. The conditions covered by this Section 13.01 (v) are:
(a) Anam shall complete construction of the Facility, and
shall be fully operational on or before September 1,
1997;
(b) Anam does not consummate a definitive agreement(s) or
arrangement(s) providing for financing facilities
sufficient to finance the proposed Facility and
transactions contemplated by this Agreement within 180
days of the signing of this Agreement;
(c) Anam shall implement Future Technology Nodes in
accordance with a schedule(s) to be negotiated mutually
in good faith by the Parties within the scope of any
subsequent technical assistance agreement consummated by
the Parties and applicable to such Future Technology
Nodes.
(vii) FAILURE TO PROTECT TI INTELLECTUAL PROPERTY. TI may terminate this
Agreement if, in the judgment of TI, the protection of TI's intellectual
property either is not maintained sufficiently or TI has reason to
believe that the protection of such intellectual property will not be
maintained in accordance with TI requirements;
(viii) CHANGE IN CONTROL, LIQUIDATION, BANKRUPTCY, ETC.. (a) Upon the
change in control of Anam or its parent company, including but not
limited to: (v) material change in
<PAGE> 18
Anam management or in the management of its parent company; (w) the sale
of all, substantially all, or a material part of Anam's assets, its
shares, or voting control to any third party including but not limited
to a holding company or financial institution; (x) the merger,
acquisition, or divestiture of Anam, directly or indirectly, with or to
any third party, (y) entering into a joint venture with any third party;
or (b) upon the liquidation, bankruptcy, receivership, custodianship or
dissolution of Anam (whether voluntarily or involuntarily).
Where the foregoing grants to a Party the right to terminate this Agreement,
such Party may exercise such right by furnishing the other Party written notice
to that effect, and such termination shall take effect upon the other Party's
receipt thereof, subject to any cure period that may otherwise apply hereunder.
13.02. 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 13.03 through 13.05 inclusive shall apply in each of the circumstances
described below.
13.03. CURE. If either Party shall at any time breach this Agreement, without
any material causative fault on the part of the other Party, by failing to
perform any material provision of this Agreement (or, cumulatively, where
non-material breaches would amount to a material breach), the non-breaching
Party may advise of its intention to terminate this Agreement by providing
written notice to the breaching Party specifying the breach. The Agreement will
not be terminated if (i) the material breach specified in the notice is remedied
within the fifty-five (55) day period following receipt of the notice by the
breaching Party or (ii) if the breach reasonably requires more than fifty-five
(55) days to correct, the breaching Party has, within thirty (30) days from
receipt of the notice of default, begun substantial corrective action to cure
the breach and submitted a written remediation plan to the non-breaching Party's
Program Coordinator providing a detailed explanation of the steps to be taken to
cure the breach as quickly as practicable, the defaulting Party diligently
pursues such corrective action, and such breach is actually cured within ninety
(90) days following receipt of the notice of default. If any default is not
cured within the time permitted, the non-defaulting Party shall have the right
to terminate this Agreement at any time thereafter by giving written notice of
termination to the other Party, and upon the giving of such notice of
termination this Agreement shall terminate immediately. The Party receiving
notice shall have the right to cure any such default up to the date of
termination. In the event of any default, the non-defaulting Party shall have
the right to suspend further implementation or effectuation of its obligations
under this Agreement, and shall not be obligated to resume such activities until
such default has been cured. This Section 13.03 shall run concurrently with the
Conciliation Process set forth in Section 13.04 below.
<PAGE> 19
13.04 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. If the breaching Party has not cured such
breach within ten (10) business days after delivery of such written
notification, a coordinating committee consisting of the Project Coordinators
(hereinafter, the "Coordinating Committee") shall be established by the Parties
and shall convene a meeting of itself within ten (1 0) business days thereafter
for the purposes of, among other things:
- assessing the good faith basis for the claimed breach,
- 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
- adopting by unanimous vote, one or more curative or corrective
courses of action (the "Proposed Resolution").
Either the breaching Party or the non-breaching Party shall be entitled to (i)
make reasonable requests for information ("Information Requests") pertaining to
the breach (provided such requests are not unduly burdensome and can be
accomplished within two (2) business days) and (ii) present its views to the
Coordinating Committee with respect to the breach, through its appropriate
officer "Presentation". If within five (5) business days of its first meeting
the Coordinating Committee shall be unable to resolve the breach by unanimous
vote, then the matter shall immediately be referred to an advisory committee
consisting of the President of Anam and the TI Executive Vice President
responsible for the Semiconductor Group and two additional personnel of their
choice, one of each from TI and Anam (hereinafter the "Advisory Committee") for
further attempts at resolution. Within fourteen (14) business days of such
referral, the Advisory Committee shall convene a meeting for the purpose of
attempting to resolve the breach. The procedures described above concerning
Information Requests and Presentation shall also apply to the Advisory Committee
proceedings. If within five (5) business days of its first meeting the Advisory
Committee shall be unable to resolve the breach by unanimous vote, then the
matter shall immediately be referred to the respective Chairman of each of TI
and Anam, Group for the purpose of attempting to resolve the breach during the
period of ten (10) business days following the submission of such matter to them
for their consideration. The process described in this Section 13.04 is herein
referred to as the "Conciliation Process".
13.05 REMEDIES INJUNCTIVE AND OTHER EQUITABLE RELIEF.
13.05.01 REMEDIES. 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 to have been provided pursuant to this Agreement, or to
obtain adequate recourse or compensation in the event the same are not so
provided.
<PAGE> 20
13.05.02 INJUNCTIVE RELIEF FOR CONFIDENTIAL INFORMATION, TRADE
AND INDUSTRIAL SECRETS, ETC. Unauthorized use or disclosure of
Confidential Information or failure to protect TI's technologies or
intellectual property will diminish the value of Advanced Available
Technology, Technical Information, Technical Data, Trade and Industrial
Secrets, and TI intellectual property rights. Therefore, if Anam
breaches (or TI has reason to believe that Anam may be about to breach)
any of its related obligations hereunder, TI shall be entitled to
equitable relief to protect its technologies and intellectual property
rights, including but not limited to injunctive relief, as well as
monetary damages.
13.05.03 RIGHT TO USE ADVANCED AVAILABLE TECHNOLOGY.
(i) In the event of termination of this Agreement for a
reason other than an Anam Material Breach, Anam shall be
permitted to continue to use said Advanced Available Technology
in the Facility, and only in the Facility, with no right to use,
transfer assign or otherwise provide directly or indirectly any
Advanced Available Technology to any other facility, affiliate,
third party, person, etc.
(ii) In the event Section 13.05.03(i) is implemented,
Anam agrees to continue to pay to TI the ongoing technical
assistance fee set forth in Section II.B of Annex A.
(iii) Nothing in this Section 13.05.03 shall be deemed
to be a waiver or an abrogation of any other right or remedy of
any Party under Article 13.00 of this Agreement.
ARTICLE 14
FORCE MAJEURE
14.01 Should any 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 will 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 terms of this
Agreement
14.02 The Party affected by Force Majeure shall notify the other Party of the
occurrence of any of the above events in writing by cable or telex within the
shortest possible time.
<PAGE> 21
14.03 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 any Party (not including Anam in the event of action or
interference by the government of the U.S.) may terminate this Agreement by
prior written notice to the other Party.
ARTICLE I5
APPLICABLE LAWS
15.01 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.
15.02 Anam shall comply with Korean Laws and all other applicable laws. Anam,
its officers, employees or agents will not participate in or provide any
information in furtherance of any boycott in violation of U.S. law or offer to
pay or receive any bribe to/from any individual or corporation. When other
individuals or organizations are required to participate in programs of Anam,
they shall be compensated fairly based on the task performed. In no
circumstances are public servants or other holders of public offices to be
offered or paid any bribe or other benefits, directly or indirectly. No
contribution in any way related to Anam will be made to candidates for public
offices or to political parties or other political organizations, regardless of
whether such contributions are permitted by local laws.
ARTICLE 16
MISCELLANEOUS
16.01 All Attachments, Annexes and Schedules to this Agreement are integral
parts thereof. Subject to Section 16.08, 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, provided however, that TI may assign this
Agreement or any obligation hereunder to any subsidiary of TI upon written
notice to Anam. In such event, TI shall be the controlling Party of such
assignee and shall guarantee the obligations of such assignee for this Agreement
16.02 In the event the government of the Republic of Korea imposes on TI or
TI Affiliates offset requirements in other TI projects or investments in the
Republic of Korea, then Anam agrees to use its best efforts, upon TI request, to
convince the government that the transfer of Advanced Available Technology by TI
and sales of TI Products to TI hereunder should be credited for offset purposes.
<PAGE> 22
16.03 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 16.03 any Party may terminate this Agreement in the
manner as if the conditions of Section 13.01 (iii) existed.
16.04. 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, either the existence or contents of this Agreement
or the transactions contemplated thereby. Provided, however, that Anam may
disclose to its potential customers that no patent license exists between TI and
Anam. 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; provided however that in such event the Party making such a request
for approval must seek the review and approval of the other Party, in which
case, the requesting Party shall use its best efforts to comply with the
recommendations of the other Party as concerns disclosure and confidentiality.
16.05 The headings of the Articles and Sections of this Agreement are for
reference purposes only and shall not be deemed to affect in way the meaning or
interpretation of the Articles to which they refer.
16.06 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.
16.07 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.
16.08 Anam shall not sell, assign, delegate, transfer, or otherwise dispose
of this Agreement or any right or duty under this Agreement or portion thereof
(including an assignment or delegation by operation of law), without the prior
written consent of TI. Any such attempted sale, assignment, transfer,
delegation, disposition, etc. shall be null and void and shall constitute a
Material Breach under Section 13.01(iv) of this Agreement.
16.09 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 upon
or to give any person other than
<PAGE> 23
the Parties hereto and their successors or assigns, any rights or remedies under
or by reason of this Agreement.
16.10 All notices and formal communications pursuant to this Agreement 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. Joseph Brennan
8505 Forest Lane M/S 8641
Dallas, Texas 75243
Fax: 972/480-2088
with a copy to:
General Counsel
13510 North Central Expressway, M/S 241
Dallas, Texas 75243
Fax: 972/995-3511
if to Anam:
Mr. K.O. Park
3d Floor Taeyang Building
59, Nae-Dong, Ojung-ku, Buchon
Kyunggi-do, Korea 421-160
Fax: 032-683-8104
Either Party may change the above addresses by furnishing notice to that effect
in the manner provided above.
16.11 All correspondence of which TI is a recipient or sender shall be in
English. All documents which are issued in Korea pursuant to the Agreement shall
be provided to TI in English translation.
16.12 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.
16.13 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.
<PAGE> 24
16.14 During the Term, neither Party nor an Affiliate shall solicit whether
directly or indirectly for employment; or hire, employ or other wise retain any
employee of the other Party with whom they have come into direct contact in
connection with the transactions contemplated by this Agreement without the
prior written consent of the other Party.
16.15 Articles, 9.00, 10.0, 11.00, 12.00, 15.00, and Sections 2.09, 8.01.04,
and 13.05.03 shall survive the cancellation termination or expiration, of this
Agreement.
16.16 This Agreement contains the entire understanding and agreement among
the Parties with respect to the subject matter hereof and supersedes 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.
ARTICLE 17
TERM
17.01 Initial Term. The Term shall commence on the Effective Date and shall
continue through July 15, 2006, unless (i) terminated under Article 13.00 of
this Agreement, or (ii) the Parties fail to negotiate in good faith either a new
technical assistance agreement or an amendment to this Agreement for Future
Technology Nodes on or before December 31, 1998.
17.02 In the event the Parties are unable successfully to negotiate such new
technical assistance agreement, or an amendment to this Agreement, then either
Party may give the other Party a two-year notice of termination, whereupon the
Parties shall agree on a transition schedule; provided, however, to the extent
that the Parties cannot agree on a reasonable transition schedule, TI's minimum
loading commitment during said remainder two-year period shall be lowered to
twenty percent (20%).
ARTICLE 18
ADDITIONAL REPRESENTATIONS, WARRANTIES, AND COVENANTS
Anam additionally represents and warrants to TI as follows:
18.01 ENFORCEABLE OBLIGATIONS. Anam will be at the time of execution a
corporate citizen of the Republic of Korea in good standing and not subject to
any criminal penalty, criminal charges, disciplinary proceedings or criminal
proceedings under the Korean Laws or any other country. With respect to this
Agreement Anam will have the authority and legal right to execute and deliver
such Agreements and to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. This Agreement will
constitute, when executed and delivered, the valid, legal and binding
obligations of Anam, enforceable against Anam, in accordance with their
respective terms, except (a) as such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or thereafter
in
<PAGE> 25
effect relating to creditors' rights, and (b) as the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
18.02 VALIDITY OF CONTEMPLATED TRANSACTIONS. The execution, delivery and
performance of this Agreement by Anam does not and will not (i) violate,
conflict with or result in the breach (collectively, "Breach") of any term,
condition or provision of, or result in the creation of any encumbrance under,
(a) any existing law, ordinance, or governmental rule or regulation to which
Anam is subject, (b) any judgment, order, writ, injunction, decree or award of
any governmental entity which is applicable to Anam, (c) the charter documents
of companies affiliated with Anam in carrying out this Agreement or any
securities issued by such companies, or (d) any mortgage, indenture, agreement,
contract, commitment, lease, plan, authorization, or other instrument, document
or understanding, oral or written, to which Anam is a party or by which Anam may
have rights, except, as to such performance, such Breaches and encumbrances as
would, if occurred or created, not have a material adverse effect on the
ability of Anam to perform his obligations hereunder and thereunder, or (ii)
give any party with rights thereunder the right to terminate, modify, accelerate
or otherwise change the existing rights or obligations of Anam.
18.03 RESTRICTIONS. Anam neither is nor will be a party to any indenture,
agreement, contract, commitment, lease, license, permit, authorization or other
instrument, document or understanding, oral or written, nor subject to any
restriction in any charter document or other corporate restriction or any
judgment, order, writ, injunction, decree or award which materially adversely
affects or materially restricts or, to the knowledge of Anam, may in the future
materially adversely affect or materially restrict, the business of Anam after
consummation of the transactions contemplated hereby.
18.04 CONSENT. No consent or approval by, or notification of, or filing with,
any person is required which has not been obtained in connection with the
execution, delivery and performance by Anam of this Agreement, or the
consummation of the transactions contemplated hereby, other than such consents
or approvals as would, if not obtained, not have a material adverse effect on
the ability of Anam to perform its obligations hereunder.
18.05 FUTURE TECHNOLOGY NODES.
***
[PURSUANT TO SECTION 16.04 HEREOF THE PARTIES TO THIS AGREEMENT HAVE NOT
CONSENTED TO DISCLOSURE OF THE OMITTED MATERIAL.]
***
18.06 ARM'S LENGTH PRICING. In all transactions with Affiliates concerning
assembly and test services for third party customers, Anam shall maintain
separate, independent and arm's length
<PAGE> 26
pricing structures so that the "back log" wafer price is separate and
distinguishable from any assembly and test or "turnkey" price to third parties.
18.07 FACILITY EXPANSION.
18.07.01 Anam agrees that it will not expand the Facility or the
Capacity without advanced, prior written notification to TI, which
notification shall provide in detail plans for any such expansion,
including anticipated additional Capacity.
18.07.02 Anam shall provide TI with the right of first refusal
to any such additional Capacity in accordance with TI's loading rights
pursuant to Article 8.00 of this Agreement, provided however, TI shall
have the right not to load such additional Capacity, in part or in
whole, in accordance with Section 8.01.01, in which such case, Anam
shall be responsible solely for filling any such additional Capacity;
and further provided, all other terms and conditions of this Agreement
shall apply to such additional Capacity.
<PAGE> 27
IN WITNESS WHEREOF, and intending to be legally bound hereby, TI and Anam have
caused their duly authorized representatives to execute this Agreement.
ANAM INDUSTRIAL CO., LTD. TEXAS INSTRUMENTS INCORPORATED
By:___________________________ By:___________________________
Name:_________________________ Name:_________________________
Title:________________________ Title:________________________
Date:_________________________ Date:__________________________
<PAGE> 28
ANNEX A
I. PRODUCTS: The Products shall be as defined in Section 1.06 of this
Agreement.
II. TECHNICAL ASSISTANCE FEE:
[*]
* 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.
<PAGE> 29
[*]
III. PRICING FORMULA. The Pricing Formula shall be established on the following
model: (All monetary numbers are in U.S. dollars).
[*]
* 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.
<PAGE> 30
IV. TI PRODUCT FORECAST
A. Annual Quantity Projections.
(i) Beginning 30 days after the Effective Date of this Agreement
and in [*] of each year thereafter, TI shall provide to Anam the annual
quantities of Products (wafers) estimated to be purchased from Anam by
TI for the upcoming [*] year time period (the "Annual Quantity
Projections").
(ii) The Annual Quantity Projections shall be communicated by TI
technology. Anam shall acknowledge, in writing to TI, Annual Quantity
Projections within one (1) month of receipt thereof. Such Annual
Quantity Projections shall not constitute a binding purchase obligation
for TI and shall be the responsibility of the Program Coordinator.
B Rolling Quarterly Forecasts
(i) Beginning 30 days after the Effective Date of this Agreement
and each quarter thereafter, TI shall provide to Anam the quantity of
Products estimated to be purchased by TI from Anam for the upcoming [*]
(the "Rolling Quarterly Forecasts"). Each such forecast shall indicate
TI's estimated purchases of Products on a monthly basis for the next
succeeding quarter.
(ii) The Rolling Quarterly Forecasts shall be made available to
Anam within 10 days after the end of the preceding quarter. The Rolling
Quarterly Forecast shall not constitute a binding purchase obligation
for TI and shall be the responsibility of the Program Coordinator.
(iii) The Program Coordinators will work in good faith to
finalize loadings forecasts to meet the requirements of both TI and
Anam. However, if TI requests the TI loadings to go from the minimum 40%
of Capacity to the maximum of 70% of capacity, Anam shall have a [*] to
meet the 70% request. The Program Coordinators shall work the interim
loading plan.
* 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.
<PAGE> 31
C Purchase Order Process.
(i) Purchase Orders. Simultaneously with delivery of the Rolling
Quarterly Forecasts, TI shall supply to Anam a written purchase order
hereto for the first month of the upcoming quarter. The types of TI
Product, quantities, and delivery dates and locations indicated on such
purchase order shall be consistent with the first month of the
corresponding Rolling Quarterly Forecast and shall be agreed to and
approved by the Program Coordinators.
(ii) Purchase Order Acknowledgment. Anam shall acknowledge, in
writing to TI, each purchase order which has been provided by TI and
approved by the Program Coordinators within five (5) business days of
receipt thereof. Such acknowledgment shall be made by product and
specification.
(iii) Modifications/Additions. TI reserves the right to modify
or add purchase orders, subject to the acceptance thereof by Anam. Such
changes shall be communicated in writing to the Anam Program
Coordinator. Anam agrees to exercise reasonable efforts to accept any
such TI modified or additional purchase order, provided that any such
purchase order reasonably reflects TI's most recent Rolling Quarterly
Forecast, and does not require delivery with a lead time which is
commercially unreasonable.
D 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.
E Time Period Revisions. ANNEX A, Section V is intended to permit TI
wafer fabs to follow procedures substantially similar to those then currently
existing in Anam to facilitate the transition to Anam operation. The Parties may
agree in writing to revise the periods covered by the rolling forecasts or the
forecasting and ordering process from time-to-time.
<PAGE> 32
SCHEDULE 1
TECHNOLOGY TO BE TRANSFERRED
***
PURSUANT TO SECTION 16.04 HEREOF, THE PARTIES TO THIS AGREEMENT HAVE NOT
CONSENTED TO DISCLOSURE OF THE OMITTED MATERIAL.
***
<PAGE> 33
SCHEDULE 2
***
PURSUANT TO SECTION 16.04 HEREOF, THE PARTIES TO THIS AGREEMENT HAVE NOT
CONSENTED TO DISCLOSURE OF THE OMITTED MATERIAL.
***
