<PAGE> 1
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM 10-K/A (NO. 1)
(MARK ONE)
/X/ AMENDMENT NO. 1 TO ANNUAL REPORT PURSUANT TO
SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934.
FOR THE FISCAL YEAR ENDED DECEMBER 26, 1993
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE TRANSITION PERIOD FROM
---------------TO
---------------.
COMMISSION FILE NUMBER 1-7882
ADVANCED MICRO DEVICES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 94-1692300
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
ONE AMD PLACE
SUNNYVALE, CALIFORNIA 94088-3453
(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (408) 732-2400
------------------------
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<S> <C>
(NAME OF EACH EXCHANGE ON
(TITLE OF EACH CLASS) WHICH REGISTERED)
$.01 PAR VALUE COMMON STOCK NEW YORK STOCK EXCHANGE
PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE
DEPOSITARY CONVERTIBLE EXCHANGEABLE NEW YORK STOCK EXCHANGE
PREFERRED SHARES
</TABLE>
------------------------
Securities registered pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes No
X
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. /X/
Aggregate market value of the voting stock
held by nonaffiliates as of February 28, 1994.
$1,980,075,847
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date.
92,627,503 SHARES AS OF FEBRUARY 28, 1994.
DOCUMENTS INCORPORATED BY REFERENCE
(1) Portions of the Annual Report to Shareholders for the fiscal year ended
December 26, 1993, are incorporated into Parts I, II and IV hereof.
(2) Portions of the Proxy Statement dated on or before March 27, 1994, for the
Annual Meeting of Stockholders to be held on April 27, 1994 are incorporated
into Part III hereof.
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
<PAGE> 2
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. Financial Statements
The financial statements listed in the accompanying Index to Consolidated
Financial Statements and Financial Statement Schedules Covered by Report of
Independent Auditors are filed or incorporated by reference as part of this
annual report. The following is a list of such Financial Statements:
<TABLE>
<CAPTION>
PAGE REFERENCES
-------------------
1993 ANNUAL
FORM REPORT TO
10-K STOCKHOLDERS
---- ------------
<S> <C> <C>
Report of Independent Auditors............................................. -- 29
Consolidated Statements of Operations for each of the three fiscal years in
the
period ended December 26, 1993........................................... -- 17
Consolidated Balance Sheets at December 27, 1992 and December 26, 1993..... -- 18
Consolidated Statements of Cash Flows for each of the three fiscal years in
the
period ended December 26, 1993........................................... -- 19
Notes to consolidated financial statements................................. -- 20-28
Supplementary financial data:
Fiscal years 1992 and 1993 by quarter (unaudited)........................ -- 30-31
</TABLE>
2. Financial Statement Schedules
The financial statement schedules listed in the accompanying Index to
Consolidated Financial Statements and Financial Statement Schedules Covered by
Report of Independent Auditors are filed or incorporated by reference as part of
this annual report. The following is a list of such Financial Statement
Schedules:
<TABLE>
<CAPTION>
PAGE REFERENCES
-------------------
1993 ANNUAL
FORM REPORT TO
10-K STOCKHOLDERS
---- ------------
<S> <C> <C> <C>
I Marketable Securities............................................... F-3 --
II Amounts receivable from officers and employees...................... F-4 --
V Property, plant and equipment....................................... F-5 --
Accumulated depreciation and amortization of property, plant and
VI equipment........................................................... F-6 --
VIII Valuation and qualifying accounts................................... F-7 --
X Supplementary operations statement information...................... F-8 --
</TABLE>
1
<PAGE> 3
3. EXHIBITS
The exhibits listed in the accompanying Index to Exhibits are filed or
incorporated by reference as part of this annual report. The following is a list
of such Exhibits:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- - ---------- ----------------------------------------------------------------------------
<S> <C>
3.1 Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the
Corporation's Annual Report on Form 10-K for the fiscal period ended
December 27, 1987, is hereby incorporated by reference.
3.2 Certificate of Designations for Convertible Exchangeable Preferred Shares,
filed as Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the
fiscal year ended March 27, 1987, is hereby incorporated by reference.
3.3 Certificate of Designations for Series A Junior Participating Preferred
Stock, filed as Exhibit 3.3 to the Corporation's Annual Report on Form 10-K
for the fiscal year ended December 31, 1989, is hereby incorporated by
reference.
3.4 By-Laws, as amended, filed as Exhibit 3.4 to the Corporations Annual Report
on Form 10-K for the fiscal year ended December 27, 1992, is hereby
incorporated by reference.
4.1 Deposit Agreement with respect to the $30 Convertible Exchangeable Preferred
Shares, filed as Exhibit 4.3 to the Corporation's Annual Report on Form 10-K
for the fiscal year ended March 29, 1987, is hereby incorporated by
reference.
4.2 Indenture with respect to the 6% Convertible Subordinated Debentures due in
2012, filed as Exhibit 4.4 to the Corporation's Annual Report on Form 10-K
for the fiscal year ended March 29, 1987, is hereby incorporated by
reference.
4.3 The Corporation hereby agrees to file on request of the Commission a copy of
all instruments not otherwise filed with respect to long-term debt of the
Corporation or any of its subsidiaries for which the total amount of
securities authorized under such instruments does not exceed 10% of the
total assets of the Corporation and its subsidiaries on a consolidated
basis.
4.4 Rights Agreement between the Corporation and Bank of America N.T. & S.A.,
filed as Exhibit 4.1 to the Corporation's Current Report on Form 8-K dated
February 7, 1990, is hereby incorporated by reference.
*10.1 AMD 1982 Stock Option Plan, as amended.
*10.2 AMD 1986 Stock Option Plan, as amended.
*10.3 AMD 1992 Stock Incentive Plan, as amended.
*10.4 AMD 1980 Stock Appreciation Rights Plan, as amended.
*10.5 AMD 1986 Stock Appreciation Rights Plan, as amended.
*10.6 MMI 1975 Stock Option Plan, as amended, filed as Exhibit 10.6 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
29, 1991, is hereby incorporated by reference.
*10.7 MMI 1981 Incentive Stock Option Plan, as amended.
*10.8 Forms of Stock Option Agreements, filed as Exhibit 10.8 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is
hereby incorporated by reference.
*10.9 Form of Limited Stock Appreciation Rights Agreement, filed as Exhibit 4.11
to the Corporation's Registration Statement on Form S-8 (No. 33-26266) is
hereby incorporated by reference.
*10.10 AMD 1987 Restricted Stock Award Plan, as amended.
</TABLE>
2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- - ---------- ----------------------------------------------------------------------------
<S> <C>
*10.11 Forms of Restricted Stock Agreements, filed as Exhibit 10.11 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
29, 1991, is hereby incorporated by reference.
*10.12 Resolution of Board of Directors on September 9, 1981, regarding
acceleration of vesting of all outstanding stock options and associated
limited stock appreciation rights held by officers under certain
circumstances, filed as Exhibit 10.10 to the Corporation's Annual Report on
Form 10-K for fiscal year ended March 31, 1985, is hereby incorporated by
reference.
*10.13(a) Employment Agreement dated July 1, 1991, between the Corporation and W. J.
Sanders III, filed as Exhibit 10.1 to the Corporation's Form 8-K dated
September 3, 1991, is hereby incorporated by reference.
*10.13(b) Amendment dated August 27, 1991, to Employment Agreement between the
Corporation and W. J. Sanders III, filed as Exhibit 10.2 to the
Corporation's Form 8-K dated September 3, 1991, is hereby incorporated by
reference.
*10.14 Management Continuity Agreement between the Corporation and W. J. Sanders
III, filed as Exhibit 10.14 to the Corporation's Annual Report on Form 10-K
for the fiscal year ended December 29, 1991, is hereby incorporated by
reference.
*10.15 Bonus Agreement between the Corporation and Richard Previte, filed as
Exhibit 10.15 to the Corporation's Annual Report on Form 10-K for the fiscal
year ended December 29, 1991, is hereby incorporated by reference.
*10.16 Executive Bonus Plan, filed as Exhibit 10.16 to the Corporation's Annual
Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby
incorporated by reference.
*10.17 Bonus Agreement between the Corporation and Anthony B. Holbrook, filed as
Exhibit 10.17 for the fiscal year ended December 27, 1992, is hereby
incorporated by reference.
*10.18 Form of Bonus Deferral Agreement, filed as Exhibit 10.12 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended March 30,
1986, is hereby incorporated by reference.
*10.19 Form of Executive Deferral Agreement, filed as Exhibit 10.17 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1989, is hereby incorporated by reference.
*10.20 Director Deferral Agreement of R. Gene Brown, filed as Exhibit 10.18 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
31, 1989, is hereby incorporated by reference.
10.21 License Agreement with Western Electric Company, Incorporated, filed as
Exhibit 10.5 to the Corporation's Annual Report on Form 10-K for fiscal year
ended 1979, is hereby incorporated by reference.
10.22 Intellectual Property Agreements with Intel Corporation, filed as Exhibit
10.21 to the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 29, 1991, is hereby incorporated by reference.
10.23 Award of Arbitrator in Case No. 626879 between the Corporation and Intel
Corporation, filed as Exhibit 28.2 on Form 8-K dated February 24, 1992, is
hereby incorporated by reference.
10.24 Form of Indemnification Agreements with former officers of Monolithic
Memories, Inc., filed as Exhibit 10.22 to the Corporation's Annual Report on
Form 10-K for the fiscal year ended December 27, 1987, is hereby
incorporated by reference.
</TABLE>
3
<PAGE> 5
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- - ---------- ----------------------------------------------------------------------------
<S> <C>
10.25 Agreement and Plan of Reorganization between Monolithic Memories Inc., the
Corporation and Advanced Micro Devices Merger Corporation, filed as Annex A
to the Corporation's Amendment No. 1 to Registration Statement on Form S-4
(No. 33-15015), dated June 25, 1987, is hereby incorporated by reference.
*10.26 Form of Management Continuity Agreement, filed as Exhibit 10.25 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
29, 1991, is hereby incorporated by reference.
**10.27(a) Joint Venture Agreement between the Corporation and Fujitsu Limited.
**10.27(b) Technology Cross-License Agreement between the Corporation and Fujitsu
Limited.
**10.27(c) AMD Investment Agreement between the Corporation and Fujitsu Limited.
**10.27(d) Fujitsu Investment Agreement between the Corporation and Fujitsu Limited.
**10.27(e) Joint Venture License Agreement between the Corporation and Fujitsu Limited.
**10.27(f) Joint Development Agreement between the Corporation and Fujitsu Limited.
10.28 Credit Agreement dated as of January 4, 1993, among Advanced Micro Devices,
Inc., Bank of America National Trust and Savings Association as Agent, The
First National Bank of Boston as Co-Agent, filed as Exhibit 10.27 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
27, 1992, is hereby incorporated by reference.
10.29(a) Amended and Restated Guaranty dated as of January 4, 1993, by Advanced Micro
Devices, Inc. in favor of CIBC Inc., filed as Exhibit 10.28(a) to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
27, 1992, is hereby incorporated by reference.
10.29(b) Building Lease by and between CIBC Inc. and AMD International Sales &
Service, Ltd. dated as of September 22, 1992, filed as Exhibit 10.28(b) to
the Corporation's Annual Report on Form 10-K for the fiscal year ended
December 27, 1992, is hereby incorporated by reference.
10.29(c) First Amendment to Building Lease dated December 22, 1992, by and between
CIBC Inc. and AMD International Sales & Service, Ltd., filed as Exhibit
10.28(c) to the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 27, 1992, is hereby incorporated by reference.
10.29(d) Land Lease by and between CIBC Inc. and AMD International Sales & Service,
Ltd. dated as of September 22, 1992, filed as Exhibit 10.28(d) to the
Corporation's Annual Report on Form 10-K for the fiscal year ended December
27, 1992, is hereby incorporated by reference.
10.29(e) First Amendment to Land Lease dated December 22, 1992, by and between CIBC
Inc. and AMD International Sales & Service, Ltd., filed as Exhibit 10.28(e)
to the Corporation's Annual Report on Form 10-K for the fiscal year ended
December 27, 1992, is hereby incorporated by reference.
*10.30 Executive Savings Plan.
*10.31 Form of Split Dollar Agreement.
*10.32 Form of Collateral Security Assignment Agreement.
*10.33 Forms of Stock Option Agreements to the 1992 Stock Incentive Plan, filed as
Exhibit 4.3 to the Corporation's Registration Statement on Form S-8 (No.
33-46577) is hereby incorporated by reference.
*10.34 1992 United Kingdom Share Option Scheme, Filed as Exhibit 4.2 to the
Corporation's Registration on Form S-8 (No. 33-46577) is hereby incorporated
by reference.
</TABLE>
4
<PAGE> 6
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- - ---------- ----------------------------------------------------------------------------
<S> <C>
11.1 Statement re computation of per share earnings.
13. 1993 Annual Report to Stockholders which has been incorporated by reference
into Parts I, II and IV of this annual report. To the extent filed, refer to
the front page hereinabove.
22. List of AMD subsidiaries.
24. Consent of Independent Auditors, refer to page F-2 hereinabove.
25. Power of Attorney.
</TABLE>
The Corporation will furnish a copy of any exhibit on request and payment
of the Corporation's reasonable expenses of furnishing such exhibit.
* Management contracts and compensatory plans or arrangements required to
be filed as an Exhibit to comply with Item 14(a)(3).
** Confidential treatment has been requested as to certain portions of
these Exhibits. Amendment No. 1 to this Report includes copies of these Exhibits
which contain certain information not included in the copies filed with the
original Report.
(b) Reports on Form 8-K.
1. A current Report on Form 8-K dated January 27, 1994, was filed
announcing an agreement with Compaq Computer Corporation.
2. A current Report on Form 8-K dated February 10, 1994, was filed
announcing an agreement with Digital Equipment Corporation.
5
<PAGE> 7
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this amendment to report on
Form 10-K to be signed on its behalf by the undersigned, thereunto duly
authorized.
ADVANCED MICRO DEVICES, INC.
Registrant
May 3, 1994 By: /s/ MARVIN D. BURKETT
Marvin D. Burkett
Senior Vice President, Chief
Administrative
Officer and Secretary; Chief Financial
Officer
and Treasurer
<PAGE> 8
ADVANCED MICRO DEVICES, INC.
------------------------
INDEX TO EXHIBITS
(ITEM 14(A)(3))
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ---------- ------------------------------------------------------------------
<C> <S> <C>
3.1 Certificate of Incorporation, as amended, filed as Exhibit 3.1 to
the Corporation's Annual Report on Form 10-K for the fiscal period
ended December 27, 1987, is hereby incorporated by reference.
3.2 Certificate of Designations for Convertible Exchangeable Preferred
Shares, filed as Exhibit 3.2 to the Corporation's Annual Report on
Form 10-K for the fiscal year ended March 27, 1987, is hereby
incorporated by reference.
3.3 Certificate of Designations for Series A Junior Participating
Preferred Stock, filed as Exhibit 3.3 to the Corporation's Annual
Report on Form 10-K for the fiscal year ended December 31, 1989,
is hereby incorporated by reference.
3.4 By-Laws, as amended, filed as Exhibit 3.4 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended December 27,
1992, is hereby incorporated by reference.
4.1 Deposit Agreement with respect to the $30 Convertible Exchangeable
Preferred Shares, filed as Exhibit 4.3 to the Corporation's Annual
Report on Form 10-K for the fiscal year ended March 29, 1987, is
hereby incorporated by reference.
4.2 Indenture with respect to the 6% Convertible Subordinated
Debentures due in 2012, filed as Exhibit 4.4 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended March 29,
1987, is hereby incorporated by reference.
4.3 The Corporation hereby agrees to file on request of the Commission
a copy of all instruments not otherwise filed with respect to
long-term debt of the Corporation or any of its subsidiaries for
which the total amount of securities authorized under such
instruments does not exceed 10% of the total assets of the
Corporation and its subsidiaries on a consolidated basis.
4.4 Rights Agreement between the Corporation and Bank of America N.T.
& S.A., filed as Exhibit 4.1 to the Corporation's Current Report
on Form 8-K dated February 7, 1990, is hereby incorporated by
reference.
*10.1 AMD 1982 Stock Option Plan, as amended.
*10.2 AMD 1986 Stock Option Plan, as amended.
*10.3 AMD 1992 Stock Incentive Plan, as amended.
*10.4 AMD 1980 Stock Appreciation Rights Plan, as amended.
*10.5 AMD 1986 Stock Appreciation Rights Plan.
*10.6 MMI 1975 Stock Option Plan, as amended, filed as Exhibit 10.6 to
the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 29, 1991, is hereby incorporated by reference.
*10.7 MMI 1981 Incentive Stock Option Plan, as amended.
*10.8 Forms of Stock Option Agreements, filed as Exhibit 10.8 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended
December 29, 1991, is hereby incorporated by reference.
*10.9 Form of Limited Stock Appreciation Rights Agreement, filed as
Exhibit 4.11 to the Corporation's Registration Statement on Form
S-8 (No. 33-26266) is hereby incorporated by reference.
*10.10 AMD 1987 Restricted Stock Award Plan, as amended.
*10.11 Forms of Restricted Stock Agreements, filed as Exhibit 10.11 to
the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 29, 1991, is hereby incorporated by reference.
</TABLE>
<PAGE> 9
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ---------- ------------------------------------------------------------------
<C> <S> <C>
*10.12 Resolution of Board of Directors on September 9, 1981, regarding
acceleration of vesting of all outstanding stock options and
associated limited stock appreciation rights held by officers
under certain circumstances, filed as Exhibit 10.10 to the
Corporation's Annual Report on Form 10-K for fiscal year ended
March 31, 1985, is hereby incorporated by reference.
*10.13(a) Employment Agreement dated July 1, 1991, between the Corporation
and W. J. Sanders III, filed as Exhibit 10.1 to the Corporation's
Form 8-K dated September 3, 1991, is hereby incorporated by
reference.
*10.13(b) Amendment dated August 27, 1991, to Employment Agreement between
the Corporation and W. J. Sanders III, filed as Exhibit 10.2 to
the Corporation's Form 8-K dated September 3, 1991, is hereby
incorporated by reference.
*10.14 Management Continuity Agreement between the Corporation and W. J.
Sanders III, filed as Exhibit 10.14 to the Corporation's Annual
Report on Form 10-K for the fiscal year ended December 29, 1991,
is hereby incorporated by reference.
*10.15 Bonus Agreement between the Corporation and Richard Previte, filed
as Exhibit 10.15 to the Corporation's Annual Report on Form 10-K
for the fiscal year ended December 29, 1991, is hereby
incorporated by reference.
*10.16 Executive Bonus Plan, filed as Exhibit 10.16 to the Corporation's
Annual Report on Form 10-K for the fiscal year ended December 29,
1991, is hereby incorporated by reference.
*10.17 Bonus Agreement between the Corporation and Anthony B. Holbrook,
filed as Exhibit 10.17 for the fiscal year ended December 27,
1992, is hereby incorporated by reference.
*10.18 Form of Bonus Deferral Agreement, filed as Exhibit 10.12 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended
March 30, 1986, is hereby incorporated by reference.
*10.19 Form of Executive Deferral Agreement, filed as Exhibit 10.17 to
the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1989, is hereby incorporated by reference.
*10.20 Director Deferral Agreement of R. Gene Brown, filed as Exhibit
10.18 to the Corporation's Annual Report on Form 10-K for the
fiscal year ended December 31, 1989, is hereby incorporated by
reference.
*10.21 License Agreement with Western Electric Company, Incorporated,
filed as Exhibit 10.5 to the Corporation's Annual Report on Form
10-K for fiscal year ended 1979, is hereby incorporated by
reference.
10.22 Intellectual Property Agreements with Intel Corporation, filed as
Exhibit 10.21 to the Corporation's Annual Report on Form 10-K for
the fiscal year ended December 29, 1991, is hereby incorporated by
reference.
10.23 Award of Arbitrator in Case No. 626879 between the Corporation and
Intel Corporation, filed as Exhibit 28.2 on Form 8-K dated
February 24, 1992, is hereby incorporated by reference.
10.24 Form of Indemnification Agreements with former officers of
Monolithic Memories, Inc., filed as Exhibit 10.22 to the
Corporation's Annual Report on Form 10-K for the fiscal year ended
December 27, 1987, is hereby incorporated by reference.
10.25 Agreement and Plan of Reorganization between Monolithic Memories
Inc., the Corporation and Advanced Micro Devices Merger
Corporation, filed as Annex A to the Corporation's Amendment No. 1
to Registration Statement on Form S-4 (No. 33-15015), dated June
25, 1987, is hereby incorporated by reference.
*10.26 Form of Management Continuity Agreement, filed as Exhibit 10.25 to
the Corporation's Annual Report on Form 10-K for the fiscal year
ended December 29, 1991, is hereby incorporated by reference.
**10.27(a) Joint Venture Agreement between the Corporation and Fujitsu
Limited.
**10.27(b) Technology Cross-License Agreement between the Corporation and
Fujitsu Limited.
</TABLE>
<PAGE> 10
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- - ---------- ------------------------------------------------------------------
<C> <S> <C>
**10.27(c) AMD Investment Agreement between the Corporation and Fujitsu
Limited.
**10.27(d) Fujitsu Investment Agreement between the Corporation and Fujitsu
Limited.
**10.27(e) Joint Venture License Agreement between the Corporation and
Fujitsu Limited.
**10.27(f) Joint Development Agreement between the Corporation and Fujitsu
Limited.
10.28 Credit Agreement dated as of January 4, 1993, among Advanced Micro
Devices, Inc., Bank of America National Trust and Savings
Association as Agent, The First National Bank of Boston as
Co-Agent, filed as Exhibit 10.27 to the Corporation's Annual
Report on Form 10-K for the fiscal year ended December 27, 1992,
is hereby incorporated by reference.
10.29(a) Amended and Restated Guaranty dated as of January 4, 1993, by
Advanced Micro Devices, Inc. in favor of CIBC Inc., filed as
Exhibit 10.28(a) to the Corporation's Annual Report on Form 10-K
for the fiscal year ended December 27, 1992, is hereby
incorporated by reference.
10.29(b) Building Lease by and between CIBC Inc. and AMD International
Sales & Service, Ltd. dated as of September 22, 1992, filed as
Exhibit 10.28(b) to the Corporation's Annual Report on Form 10-K
for the fiscal year ended December 27, 1992, is hereby
incorporated by reference.
10.29(c) First Amendment to Building Lease dated December 22, 1992, by and
between CIBC Inc. and AMD International Sales & Service, Ltd.,
filed as Exhibit 10.28(c) to the Corporation's Annual Report on
Form 10-K for the fiscal year ended December 27, 1992, is hereby
incorporated by reference.
10.29(d) Land Lease by and between CIBC Inc. and AMD International Sales &
Service, Ltd. dated as of September 22, 1992, filed as Exhibit
10.28(d) to the Corporation's Annual Report on Form 10-K for the
fiscal year ended December 27, 1992, is hereby incorporated by
reference.
10.29(e) First Amendment to Land Lease dated December 22, 1992, by and
between CIBC Inc. and AMD International Sales & Service, Ltd.,
filed as Exhibit 10.28(e) to the Corporation's Annual Report on
Form 10-K for the fiscal year ended December 27, 1992, is hereby
incorporated by reference.
*10.30 Executive Savings Plan.
*10.31 Form of Split Dollar Agreement.
*10.32 Form of Collateral Security Assignment Agreement.
*10.33 Forms of Stock Option Agreements to the 1992 Stock Incentive Plan,
filed as Exhibit 4.3 to the Corporation's Registration Statement
on Form S-8 (No. 33-46577) is hereby incorporated by reference.
*10.34 1992 United Kingdom Share Option Scheme, Filed as Exhibit 4.2 to
the Corporation's Registration on Form S-8 (No. 33-46577) is
hereby incorporated by reference.
11.1 Statement re computation of per share earnings.
13. 1993 Annual Report to Stockholders which have been incorporated by
reference into Parts I, II, and IV of this annual report. To the
extent filed, refer to the front page hereinabove.
22. List of AMD subsidiaries.
24. Consent of Independent Auditors, refer to page F-2 hereinabove.
25. Power of Attorney.
</TABLE>
Exhibits 10.27(a)-(f) are the only Exhibits attached to Amendment No. 1 to
this Report.
The Corporation will furnish a copy of any exhibit on request and payment
of the Corporation's reasonable expenses of furnishing such exhibit.
* Management contracts and compensatory plans or arrangements required to be
filed as an Exhibit to comply with Item 14(a)(3).
** Confidential treatment has been requested as to certain portions of these
Exhibits. The exhibits to Amendment No. 1 to this Report contain certain
information not included in Exhibits 10.27(a)-(f) of the original report.
<PAGE> 1
EXHIBIT 10.27(a)
----------------------------
JOINT VENTURE AGREEMENT
BETWEEN
ADVANCED MICRO DEVICES, INC.
AND
FUJITSU LIMITED
----------------------------
Confidential portions of this document have been deleted and
filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
<PAGE> 2
JOINT VENTURE AGREEMENT
TABLE OF CONTENTS
<TABLE>
<S> <C>
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 "AMD INVESTMENT AGREEMENT". . . . . . . . . . 2
Section 1.2 "APPLICABLE LAW". . . . . . . . . . . . . . . 2
Section 1.3 "ARTICLES OF INCORPORATION" . . . . . . . . . 2
Section 1.4 "ASSOCIATED AGREEMENTS" . . . . . . . . . . . 2
Section 1.5 "BOARD OF DIRECTORS". . . . . . . . . . . . . 2
Section 1.6 "BUSINESS PLAN" . . . . . . . . . . . . . . . 2
Section 1.7 "COMBINED FINANCIAL
CONTRIBUTION". . . . . . . . . . . . . . . . 3
Section 1.8 "CONFIDENTIAL INFORMATION". . . . . . . . . . 3
Section 1.9 "EFFECTIVE DATE". . . . . . . . . . . . . . . 3
Section 1.10 "EPROM". . . . . . . . . . . . . . . . . . . 3
Section 1.11 "FLASH MEMORY" . . . . . . . . . . . . . . . 3
Section 1.12 "FUJITSU INVESTMENT AGREEMENT" . . . . . . . 4
Section 1.13 "GOVERNMENTAL APPROVALS" . . . . . . . . . . 4
Section 1.14 "GOVERNMENTAL AUTHORITY" . . . . . . . . . . 4
Section 1.15 "INDEPENDENT ACCOUNTING FIRM". . . . . . . . 4
Section 1.16 "INVESTMENT AGREEMENTS". . . . . . . . . . . 4
Section 1.17 "JOINT DEVELOPMENT AGREEMENT". . . . . . . . 4
Section 1.18 "JOINT VENTURE LICENSE
AGREEMENT". . . . . . . . . . . . . . . . . 5
Section 1.19 "JV PRODUCT" . . . . . . . . . . . . . . . . 5
Section 1.20 "LAND LEASE" . . . . . . . . . . . . . . . . 5
Section 1.21 "NONDISCLOSURE AGREEMENTS" . . . . . . . . . 5
Section 1.22 "PERCENTAGE INTEREST". . . . . . . . . . . . 5
Section 1.23 "REGULATIONS OF THE BOARD OF
DIRECTORS". . . . . . . . . . . . . . . . . 5
Section 1.24 "TECHNOLOGY CROSS-LICENSE
AGREEMENT". . . . . . . . . . . . . . . . . 5
Article 2. INCORPORATION. . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.1 Formation of JV . . . . . . . . . . . . . . . 5
Section 2.2 The Name of JV. . . . . . . . . . . . . . . . 5
Section 2.3 Articles of Incorporation . . . . . . . . . . 6
Section 2.4 Capital Contributions . . . . . . . . . . . . 6
Section 2.5 Reimbursement of Incorporation
Expenses. . . . . . . . . . . . . . . . . . . 7
Article 3. MANAGEMENT OF JV . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1 Meetings and Resolutions of
Shareholders. . . . . . . . . . . . . . . . . 7
Section 3.2 Election of Directors and
Statutory Auditors. . . . . . . . . . . . . . 8
Section 3.3 Representative Directors and
Directors with Titles . . . . . . . . . . . . 9
Section 3.4 Meetings and Resolutions of the
Board of Directors. . . . . . . . . . . . . . 9
Section 3.5 Statement of Policy.. . . . . . . . . . . . . 12
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
Section 3.6 Manufacturing Activity. . . . . . . . . . . . 12
Section 3.7 [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]. . . . . . . . . . . . 13
Section 3.8 Accounting and Reporting
Obligations . . . . . . . . . . . . . . . . . 13
Article 4. RIGHTS AND OBLIGATIONS OF THE PARTIES. . . . . . . . . . . . . 15
Section 4.1 Financing . . . . . . . . . . . . . . . . . . 15
Section 4.2 Land Lease. . . . . . . . . . . . . . . . . . 15
Section 4.3 Transfer of Shares;
Right of First Refusal. . . . . . . . . . . . 17
Section 4.4 Transfer of Fujitsu Employees . . . . . . . . 19
Section 4.5 Transfer and Assignment of AMD
Employees . . . . . . . . . . . . . . . . . . 19
Section 4.6 Confidentiality . . . . . . . . . . . . . . . 19
Article 5. ASSOCIATED AGREEMENTS. . . . . . . . . . . . . . . . . . . . . 22
Article 6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 23
Section 6.1 Representations and Warranties of
Fujitsu . . . . . . . . . . . . . . . . . . . 23
Section 6.2 Representations and Warranties
of AMD. . . . . . . . . . . . . . . . . . . . 24
Article 7. TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . . . 26
Section 7.1 Effective Date. . . . . . . . . . . . . . . . 26
Section 7.2 Term. . . . . . . . . . . . . . . . . . . . . 26
Section 7.3 Triggering Events . . . . . . . . . . . . . . 27
Section 7.4. Causes of Dissolution . . . . . . . . . . . . 28
Section 7.5. Election of Non-Triggering
Party . . . . . . . . . . . . . . . . . . . . 29
Section 7.6 Noncompetition; Nonsolicitation . . . . . . . 29
Section 7.7. Name. . . . . . . . . . . . . . . . . . . . . 30
Section 7.8. Rights Under Associated
Agreements. . . . . . . . . . . . . . . . . . 30
Article 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.1. Force Majeure. . . . . . . . . . . . . . . . 31
Section 8.2. Assignment . . . . . . . . . . . . . . . . . 31
Section 8.3. Survival . . . . . . . . . . . . . . . . . . 31
Section 8.4. Notices. . . . . . . . . . . . . . . . . . . 32
Section 8.5. Export Control . . . . . . . . . . . . . . . 33
Section 8.6. Arbitration. . . . . . . . . . . . . . . . . 34
Section 8.7. Entire Agreement . . . . . . . . . . . . . . 35
Section 8.8. Modification . . . . . . . . . . . . . . . . 35
Section 8.9. Announcement . . . . . . . . . . . . . . . . 35
Section 8.10. Severability . . . . . . . . . . . . . . . . 35
Section 8.11. No Waiver. . . . . . . . . . . . . . . . . . 36
Section 8.12. Governing Law. . . . . . . . . . . . . . . . 36
Section 8.13. Language . . . . . . . . . . . . . . . . . . 36
Section 8.14. No Agency. . . . . . . . . . . . . . . . . . 36
Section 8.15. No Third Party Beneficiaries . . . . . . . . 37
Section 8.16. Headings . . . . . . . . . . . . . . . . . . 37
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
<S> <C>
Section 8.17. Construction and Reference . . . . . . . . . 37
Section 8.18. Governmental Approvals . . . . . . . . . . . 37
Section 8.19. Counterparts . . . . . . . . . . . . . . . . 37
</TABLE>
iii
<PAGE> 5
JOINT VENTURE AGREEMENT
Joint Venture Agreement ("Agreement") dated as of
March 30, 1993, by and between ADVANCED MICRO
DEVICES, INC. ("AMD"), a Delaware corporation having its
principal place of business at 901 Thompson Place, Sunnyvale,
California 94088-3453, U.S.A., and FUJITSU LIMITED ("Fujitsu"), a
Japanese corporation having its registered place of business at
1015 Kamikodanaka, Nakahara-ku, Kawasaki-shi, Kanagawa-ken 211,
Japan.
INTRODUCTION
A. AMD is engaged in the manufacture and sale of
integrated circuit devices and has a wide and rich experience in
this field of industry.
B. Fujitsu is also engaged in the manufacture and sale of
integrated circuit devices and has a wide and rich experience in
this field of industry.
C. AMD and Fujitsu desire to form a company with limited
liability (kabushiki kaisha) under the laws of Japan ("JV") for
the purpose of manufacturing certain integrated circuit devices,
such as certain densities of erasable programmable read only
memory ("EPROM") and flash memory ("Flash Memory") as more
specifically defined by this Agreement.
D. AMD and Fujitsu desire to collaborate in developing
certain process technologies and designs to be utilized in
connection with such EPROM and Flash Memory.
E. AMD and Fujitsu desire to license to JV and to cross-
license to each other certain technologies which are necessary
1
<PAGE> 6
for JV to manufacture such integrated circuit devices.
ACCORDINGLY, in consideration of the foregoing premises and
the covenants contained herein, the parties agree as follows:
Article 1. DEFINITIONS.
For the purpose of this Agreement, the following terms shall
have the meanings hereinafter set forth:
Section 1.1 "AMD INVESTMENT AGREEMENT" shall have the
meaning set forth in Section 5.E.
Section 1.2 "APPLICABLE LAW" shall mean, with respect to a
party, any domestic or foreign, federal, state or local statute,
law, ordinance, rule, administrative interpretation, regulation,
order, writ, injunction, directive, judgment, decree or other
requirement of any Governmental Authority applicable to such
party or its properties, business or assets.
Section 1.3 "ARTICLES OF INCORPORATION" shall mean articles
of incorporation of JV written in the Japanese language and
attached hereto as Exhibit A-1, as amended from time to time.
For the convenience of the parties an English translation of the
Articles of Incorporation is attached hereto as Exhibit A-2.
Section 1.4 "ASSOCIATED AGREEMENTS" shall have the meaning
ascribed to such term in Article 5.
Section 1.5 "BOARD OF DIRECTORS" shall mean the board of
directors of JV as from time to time constituted pursuant to the
terms of this Agreement.
Section 1.6 "BUSINESS PLAN" shall mean a business plan of
JV agreed to in writing by both parties hereto, as from time to
2
<PAGE> 7
time amended by a resolution of the Board of Directors.
Section 1.7 "COMBINED FINANCIAL CONTRIBUTION" shall mean,
with respect to a party, the sum of (i) capital contributions
made by such party pursuant to Section 2.4, (ii) loans to JV
guaranteed by such party pursuant to Sections 4.1.C. and 4.1.D.
and (iii) loans made directly to, or otherwise arranged by, such
party pursuant to Section 4.1.E.
Section 1.8 "CONFIDENTIAL INFORMATION" shall mean any trade
secrets, know-how, data, formulas, processes, intellectual
property or other information, tangible or intangible, of one
party that becomes known by the other party.
Section 1.9 "EFFECTIVE DATE" shall mean the latest to occur
of (a) the date of this Agreement, (b) the date on which all
requisite Governmental Approvals have been obtained, or (c) the
first date on which all of the Associated Agreements, other than
the Joint Venture License Agreement, are in effect.
Section 1.10 "EPROM" or "Electrically Programmable Read
Only Memory" shall mean a non-volatile semiconductor memory
device incorporating floating gate structure cells, which device
is electrically programmable and erasable by using ultraviolet
light. The device mainly consists of such floating gate
structure cells with auxiliary logic circuits, if any, when such
logic circuits are used solely for memory operation or interface
to other products. OTPROM or One Time PROM, which is a certain
non-volatile semiconductor device incorporating the same chip as
EPROM and packaged without transparent windows for ultraviolet
light, shall be included in the definition of EPROM.
Section 1.11 "FLASH MEMORY" shall mean a non-volatile
semiconductor memory device incorporating floating gate structure
cells, which device is programmable and erasable by electrically
3
<PAGE> 8
injecting and electrically discharging electric charges into and
from floating gates. The device mainly consists of such floating
gate structure cells, with auxiliary logic circuits, if any, when
such logic circuits are used solely for memory operation or
interface to other products.
Section 1.12 "FUJITSU INVESTMENT AGREEMENT" shall have the
meaning set forth in Section 5.D.
Section 1.13 "GOVERNMENTAL APPROVALS" means all approvals,
consents, authorizations and similar actions from all
Governmental Authorities that the parties agree are desirable in
order to consummate the transactions contemplated hereunder or
under any of the Associated Agreements.
Section 1.14 "GOVERNMENTAL AUTHORITY" shall mean any
foreign, domestic, federal, territorial, state or local
governmental authority, quasi-governmental authority, court,
government or self-regulatory organization, commission, tribunal,
organization or any regulatory, administrative or other agency,
or any political or other subdivision, department or branch of
any of the foregoing.
Section 1.15 "INDEPENDENT ACCOUNTING FIRM" shall mean a
certified public accountant at audit firm qualified under the
Japanese Certified Public Accountants Act, Law No. 103, 1948, as
amended.
Section 1.16 "INVESTMENT AGREEMENTS" shall have the meaning
set forth in Section 5.E.
Section 1.17 "JOINT DEVELOPMENT AGREEMENT" shall have the
meaning set forth in Section 5.A.
4
<PAGE> 9
Section 1.18 "JOINT VENTURE LICENSE AGREEMENT" shall have
the meaning set forth in Section 5.C.
Section 1.19 "JV PRODUCT" shall mean any product listed as
a JV Product in the Joint Development Agreement, or so designated
by the Board of Directors.
Section 1.20 "LAND LEASE" shall have the meaning set forth
in Section 4.2.A.
Section 1.21 "NONDISCLOSURE AGREEMENTS" shall mean the
Nondisclosure Agreements between Fujitsu and AMD dated March 12,
1992 and July 20, 1992 and the Confidentiality Agreement between
Fujitsu and AMD dated October 16, 1992.
Section 1.22 "PERCENTAGE INTEREST" shall mean with respect
to a party, the percentage of JV's issued and outstanding shares
held by such party.
Section 1.23 "REGULATIONS OF THE BOARD OF DIRECTORS" shall
have the meaning set forth in Section 3.4.F.
Section 1.24 "TECHNOLOGY CROSS-LICENSE AGREEMENT" shall
have the meaning set forth in Section 5.B.
Article 2. INCORPORATION.
Section 2.1 Formation of JV. Promptly following the
Effective Date, the parties shall form JV in Japan for the
purpose of the production, marketing and sale of JV Products.
Section 2.2 The Name of JV. The name of JV shall be as set
forth in the Articles of Incorporation in Japanese and "Fujitsu
AMD Semiconductor Limited" in English. Fujitsu shall file a
temporary application for registration to reserve JV's Japanese
5
<PAGE> 10
name in Japan.
Section 2.3 Articles of Incorporation. The Articles of
Incorporation are hereby incorporated herein and made a part
hereof. In the event of any ambiguity or conflict arising
between the terms and conditions of this Agreement and those of
the Articles of Incorporation, to the extent legally permissible,
the terms and conditions of this Agreement shall prevail.
Section 2.4 Capital Contributions.
A. As soon as practicable following the Effective
Date, each party shall purchase shares of common stock of JV as
follows:
<TABLE>
<CAPTION>
Party Number of Shares Consideration
----- ---------------- -------------
<S> <C> <C>
Fujitsu 1,001 Y50,050,000
AMD 999 Y49,950,000
</TABLE>
B. Pursuant to a separate schedule to be agreed
between the parties, the parties shall make additional capital
contributions to JV until the parties' aggregate capital
contributions reach Y40,000,000,000, and JV shall issue
additional shares reflecting such contributions. Additional
contributions shall be made by the parties in cash, in proportion
to their respective Percentage Interests.
C. The authorized capital of JV shall initially be
Y400,000,000, to be represented by 8,000 shares of common stock
with a par value of Y50,000 each. Thereafter, the authorized
capital of JV shall be increased from time to time in accordance
with a schedule to be agreed upon between the parties. As
specified in the Business Plan, the maximum authorized capital of
JV shall be Y40,000,000,000, to be represented by 800,000 shares
of such common stock.
6
<PAGE> 11
D. Unless otherwise agreed by both parties, Fujitsu
shall hold 50.05%, and AMD 49.95%, of the issued and outstanding
shares of JV. In the event that new shares of JV are issued,
each of the parties shall have the right to purchase such shares
in an amount that is proportionate to its respective Percentage
Interest.
Section 2.5 Reimbursement of Incorporation Expenses. JV
shall reimburse Fujitsu for expenses incurred directly by Fujitsu
in connection with the incorporation of JV to the extent
permitted under the laws of Japan.
Article 3. MANAGEMENT OF JV.
Section 3.1 Meetings and Resolutions of
Shareholders.
A. Each party, in its capacity as a shareholder, shall
have the right from time to time to call a meeting of the
shareholders.
B. The quorum required for a meeting of the
shareholders shall be shareholders representing, in person or by
proxy, not less than two thirds (2/3) of the total number of
issued and outstanding shares of JV.
C. Unless otherwise required by the laws of Japan or
otherwise explicitly provided herein, no shareholders'
resolutions shall be effective unless adopted by the affirmative
votes of shareholders holding a majority of the shares present at
a meeting of the shareholders.
D. Resolutions with respect to the following matters
shall be adopted by the affirmative vote of shareholders
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] of the issued and outstanding
7
<PAGE> 12
shares of JV:
(1) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(2) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
E. Interpreters may attend meetings of shareholders
upon the request of either party.
Section 3.2 Election of Directors and Statutory
Auditors.
A. JV shall be administered by a Board of Directors composed of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] directors, [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] directors of whom shall
be nominated by AMD, and [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of whom shall be [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of whom shall be nominated by Fujitsu.
B. If a vacancy occurs on the Board of Directors, a
new director shall be nominated by the party that nominated the
director whose office has been vacated, and an election to fill
such vacancy shall be held at a shareholders' meeting to be
called without delay.
C. JV shall have two (2) statutory auditors
(kansayaku), [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The
full-time statutory auditor (jookin kansayaku) shall be the
statutory auditor nominated by Fujitsu.
8
<PAGE> 13
D. The parties agree to exercise their respective
voting rights as shareholders of JV so as to ensure that the
persons nominated as directors and statutory auditors by the
parties are elected.
E. Each individual nominated by one party as a
director or statutory auditor shall be subject to the reasonable
approval of the other party.
Section 3.3 Representative Directors and
Directors with Titles.
A. JV shall have a chairman and a vice chairman, each
of whom shall be a representative director. The chairman shall
be nominated by Fujitsu and the vice chairman by AMD.
B. Two full-time standing directors (jookin
torishimariyaku) shall be elected from among the directors
nominated by Fujitsu. The Board of Directors shall determine
whether such full-time standing directors shall be representative
directors and/or directors with titles such as president,
executive vice president, executive director or managing
director.
C. Each of the parties shall cause the directors it
has nominated to exercise their voting rights as members of the
Board of Directors so as to effect the election of the chairman,
vice chairman, representative directors and directors with titles
in accordance with Sections 3.3.A. and B. above.
Section 3.4 Meetings and Resolutions of the Board
of Directors.
A. A regular meeting of the Board of Directors shall
be held once each calendar quarter.
9
<PAGE> 14
B. The chairman, the vice chairman, or any two
directors acting together shall have the right to call, from time
to time, a special meeting of the Board of Directors.
C. The quorum required for a meeting of the Board of
Directors shall be two thirds (2/3) of all the directors of JV.
D. Resolutions of the Board of Directors shall be
adopted by the affirmative vote of a majority of the members of
the Board of Directors present at a meeting, except as provided
in Section 3.4.E. below.
E. Resolutions with respect to the following matters
shall be adopted by the affirmative vote of [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] of the entire Board of Directors:
(1) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(2) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(3) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(4) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
(5) Approval of:
a. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
b. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
10
<PAGE> 15
c. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
d. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
e. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
f. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
g. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
h. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
(6) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(7) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(8) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(9) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(10) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(11) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
11
<PAGE> 16
F. Following the formation of JV, the Board of
Directors shall adopt Regulations of the Board of Directors
written in the Japanese language, in the form of Exhibit B-1
hereto (the "Regulations of the Board of Directors"). For the
convenience of the parties, an English translation of such
Regulations is attached hereto as Exhibit B-2.
G. When any issue cannot be resolved by the Board of
Directors at two consecutive meetings, the managements of AMD and
of Fujitsu (Electronic Devices Group, or its successor) shall
consult with each other in a good faith attempt to resolve such
issue.
H. Interpreters may attend meetings of the Board of
Directors upon the request of either party.
Section 3.5 Statement of Policy.
A. The business and affairs of JV shall be carried on
and conducted in a sound, prudent and constructive manner for the
purpose of building a successful and financially strong JV
corporation.
B. The day-to-day operations of JV shall be managed by
the full-time standing directors nominated and elected under
Section 3.3.B. above. Such operations shall be conducted in
accordance with this Agreement, the Business Plan and the
operating and capital budgets approved by the Board of Directors.
Section 3.6 Manufacturing Activity. JV shall construct a
semiconductor wafer fabrication facility capable of mass
production with eight-inch wafer line, and shall manufacture JV
Products in accordance with the Business Plan.
12
<PAGE> 17
Section 3.7 [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
Section 3.8 Accounting and Reporting
Obligations.
A. JV's fiscal year shall be the twelve (12)
month period ending on March 31. Japanese accounting principles
shall be adopted.
B. JV shall provide the following reports and
statements to the parties in English and Japanese within the time
periods set forth below:
(i) Within twenty (20) days after the closing of each
month, a report on booking and billing monthly results, balance
sheet, profit and loss statement, cash flow, head count and
business operations.
(ii) Within thirty (30) days after the closing of each
quarter, a report on booking and billing quarterly results,
balance sheet, profit and loss statement, cash flow, head count,
financial change and business operations.
(iii) Within three (3) months after the end of each
fiscal year, a report on booking and billing annual results,
balance sheet, profit and loss statement, cash flow, inventory
of major properties, head count, shareholders' equity, business
operation, and annual proposals governing appropriation of
profits or covering losses.
C. The parties agree that JV shall designate Fujitsu's
Independent Accounting Firm, as approved by Fujitsu's
shareholders, as the Independent Accounting Firm of JV, unless
otherwise determined by the affirmative vote of shareholders
holding not less than two-thirds (2/3) of the issued and
13
<PAGE> 18
outstanding shares of JV.
D. The annual accounting report of JV shall be audited
at the expense of JV by its Independent Accounting Firm in
accordance with the laws of Japan.
E. Each party shall, upon reasonable written notice to
JV and to the other party, have access to JV's books, records,
procedures, employees and similar sources of data and information
concerning JV's financial operations.
F. Upon reasonable written notice to JV and the other
party, but not more often than once every twelve (12) months,
each party shall have a right to perform a special audit of JV by
independent outside auditors, at that party's own cost. In
addition, upon such reasonable notice each party shall have the
right to perform or have performed, at that party's own cost,
such audits as are necessary to meet such party's financial
reporting obligations.
G. The JV shall provide to each party full access to
the books and records of JV, and shall provide to each party the
accounting information such party requires to comply with its own
financial reporting requirements, provided that any cost involved
in providing such information shall be paid by the requesting
party.
H. The JV shall have the right, and each party hereto
shall have the right to compel JV, to have independent outside
auditors, upon reasonable written notice to the other party and
not more than once each twelve (12) months, at JV's cost, examine
the books and records of the other party for the purpose of
auditing the calculation of sales proceeds or any amounts due to
JV.
14
<PAGE> 19
Article 4. RIGHTS AND OBLIGATIONS OF THE PARTIES.
Section 4.1 Financing.
A. Except as otherwise explicitly agreed, the parties
shall bear equal responsibility for financing JV.
B. Both parties recognize that, in addition to the
capital contributions made pursuant to Section 2.4 above, JV will
need additional sums for working capital and for long term
capital, which shall be borrowed by JV pursuant to arrangements
to be made by the parties.
C. Until JV becomes self-financing, the parties shall
guarantee third-party loans made to JV in proportion to their
respective Percentage Interests.
D. Both parties shall use their best efforts to
arrange for JV to receive loans from Japanese government-related
financial institutions for JV's long-term capital. Such loans
shall be guaranteed by the parties in proportion to their
respective Percentage Interests.
E. In the event that JV is unable to secure necessary
financing, the parties themselves shall advance the necessary
funds to JV, each party lending that portion of the required
amount which is proportionate to such party's Percentage
Interest. Each party may arrange third-party financing, with or
without such party's guaranty, in lieu of any such advance.
Section 4.2 Land Lease.
A. JV shall construct its semiconductor wafer
fabrication facility on land to be leased from Fujitsu pursuant
to a 30-year lease (the "Land Lease"), which lease may be renewed
15
<PAGE> 20
for additional terms in accordance with Japan's Land and House
Leasing Act of 1991, as amended, and the terms and conditions of
such lease agreement.
B. (i) If all, or substantially all, of the assets of
JV are to be offered for sale (whether in connection with a
dissolution of JV or otherwise) Fujitsu shall have the right to
purchase JV's fabrication facility at a price equal to the book
value of such facility, as determined by JV's Independent
Accounting Firm as of the close of the preceding quarter, and
shall be given written notice of such intended sale not less than
one hundred and twenty (120) days prior to any such offering for
sale. Fujitsu shall either exercise or decline to exercise such
right, by a written statement delivered within one hundred and
twenty (120) days following the receipt of such notice. Failure
to deliver such notice within such period shall be considered a
declination by Fujitsu. If Fujitsu declines to exercise such
right to purchase, it will consent to the assignment of JV's
interest under the Land Lease to the purchaser of such assets.
(ii) AMD will take all action necessary to assure
that if it transfers shares of JV to any person or entity other
than Fujitsu or a wholly-owned subsidiary of Fujitsu, the
transferee shall agree in writing that Fujitsu shall be entitled
to exercise a right of first refusal to acquire all, but not less
than all, of the JV shares to be so transferred, at the purchase
price at which the transferee intends to sell such shares. AMD
agrees to review with Fujitsu the precise language to be
incorporated in appropriate documentation under the
circumstances, in an effort to perfect such statement of rights
to Fujitsu's reasonable satisfaction. Such documentation will
include a provision that if Fujitsu declines to acquire such
shares: (x) the seller shall be entitled to sell such shares at
the reported price, but not less than the reported price, within
ninety (90) days after the end of the period within which Fujitsu
16
<PAGE> 21
may exercise its right to acquire such shares, (y) Fujitsu will
consent to the assignment of JV's interest under the Land Lease,
and (z) Fujitsu shall give such consents as may be required to
continue to operate the facility; provided, however, that Fujitsu
will not be required to incur any expense or obligation in order
to carry out the provisions of this sentence.
Section 4.3 Transfer of Shares;
Right of First Refusal.
A. Except as otherwise explicitly provided in Section
4.2 or 7.5, no share or any interest therein in JV shall be
validly sold, transferred or otherwise disposed of for
consideration or otherwise, and no purported transferee shall be
recognized as a shareholder of JV for any purpose whatsoever
unless such transfer is in accordance with this Section 4.3.
B. Neither party shall pledge or otherwise encumber
any of its shares or any interest therein in JV at any time
without the prior written consent of the other party.
C. Neither party shall sell or transfer any shares in
JV for a period of five (5) years following the Effective Date.
In the event that either party (the "Selling Party") desires to
sell or transfer its shares in JV following such five (5)-year
period, it shall first offer to sell the shares to the other
party (the "Nonselling Party") and, upon the request of such
Nonselling Party, to any third party designated by such
Nonselling Party, at a price equal to the lower of (i)
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] or (ii) [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]. No owner of JV shares may sell or transfer
less than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of its shares in JV.
17
<PAGE> 22
D. (i) A Nonselling Party to which an offer is made
pursuant to Section 4.3.C. above and/or any third party
designated by such Nonselling Party, shall have one hundred and
twenty (120) days from the date of receipt of the offer, during
which period such Nonselling Party shall have reasonable access
to JV's books and records, within which to accept such offer.
(ii) In the event that the Nonselling Party and/or
its designee do not accept the offer to purchase all of the
Selling Party's shares, the Selling Party may, within ninety (90)
days following the expiration of such one hundred and twenty
(120) day period, seek the Board of Directors' approval, by not
less than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] votes, of a sale or
transfer of its shares to a specified third party; provided,
however, that in the event that a sale or transfer to such third
party is proposed on terms less favorable to the Selling Party
than the terms of the offer made pursuant to Section 4.3.C.
above, the Nonselling Party and/or a third party designated by
such Nonselling Party shall have the right to purchase the shares
on such less favorable terms, which right may be exercised by
notice to the Selling Party within fourteen (14) days following
the date on which such sale or transfer is proposed to the Board
of Directors.
(iii) In the event that the Nonselling Party and/or
its designee elects to purchase the Selling Party's shares
pursuant to Section 4.3.D. (i) or (ii), payment shall be made
within sixty (60) days of such election.
E. It shall be a condition to any sale or transfer to
any third party other than a third party designated by the
Nonselling Party that such third party upon request of the
Nonselling Party shall become a party to this Agreement, the
Joint Development Agreement, the Joint Venture License Agreement
18
<PAGE> 23
and/or any other agreements, and assume such obligations
reasonably deemed by the Nonselling Party to be necessary in
light of the identity and nature of the new shareholder.
F. In the event that either party transfers its shares
in JV pursuant to this Section 4.3, the Nonselling Party shall
have the right to terminate this Agreement and/or either or both
of the Investment Agreements.
G. All offers and acceptances pursuant to this Section
4.3 shall be made by written notice to the other party.
Section 4.4 Transfer of Fujitsu Employees. Fujitsu shall
have the right to designate Fujitsu employees to be transferred
to JV and to determine when such transferred employees shall
return to Fujitsu. AMD acknowledges and agrees that JV shall
accept and release such employees in accordance with Fujitsu's
instructions. It is understood that any retirement allowance
payments made to such employees will be prorated between JV and
Fujitsu based on total years of service.
Section 4.5 Transfer and Assignment of AMD Employees. AMD
may transfer or assign its personnel to JV [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION], subject to the approval of the full-time
standing directors, such approval not to be unreasonably
withheld. It is anticipated that up to
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] individuals or [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] whichever is smaller, of JV employees working in any particular
discipline may be composed of AMD transferees or assignees.
Section 4.6 Confidentiality.
A. Except as expressly authorized by the other party,
each party agrees not to disclose, use or permit the disclosure
or use by others of any Confidential Information unless and to
the extent such Confidential Information (i) is not marked or
designated in writing as confidential and is provided for a
19
<PAGE> 24
purpose that reasonably contemplates disclosure to or use by
others, (ii) becomes a matter of public knowledge through no
action or inaction of the party receiving the Confidential
Information, (iii) was in the receiving party's possession before
receipt from the party providing such Confidential Information,
(iv) is rightfully received by the receiving party from a third
party without any duty of confidentiality, (v) is disclosed to a
third party by the party providing the Confidential Information
without a duty of confidentiality on the third party, (vi) is
disclosed by the receiving party despite the exercise of the same
degree of care used by the receiving party to safeguard its own
similar Confidential Information, but the receiving party shall
take all necessary action to prevent any further disclosure,
(vii) is disclosed with the prior written approval of the party
providing such Confidential Information, or (viii) is
independently developed by the receiving party without any use of
the other party's Confidential Information. Information shall
not be deemed to be available to the general public for the
purpose of the exclusion (ii) above with respect to each party
(x) merely because it is embraced by more general information in
the prior possession of recipient or others, or (y) merely
because it is expressed in public literature in general terms not
specifically in accordance with the Confidential Information.
B. In furtherance, and not in limitation of the
foregoing Section 4.6.A., each party agrees to do the following
with respect to any such Confidential Information: (i) exercise
the same degree of care to safeguard the confidentiality of, and
prevent the unauthorized use of, such information as that party
exercises to safeguard the confidentiality of its own
Confidential Information; (ii) restrict disclosure of such
information to those of its employees and agents who have a "need
to know", and (iii) instruct and require such employees,
sublicensees, and agents to maintain the confidentiality of such
information and not to use such Confidential Information except
20
<PAGE> 25
as expressly permitted herein. Each party further agrees not to
remove or destroy any proprietary or confidential legends or
markings placed upon any documentation or other materials.
C. The foregoing confidentiality obligation shall also
apply to the contents of this Agreement.
D. The obligations under this Section 4.6 shall not
prevent the parties from disclosing the Confidential Information
or terms of this Agreement to any Governmental Authority as
required by law (provided that the party intending to make such
disclosure in such circumstances has given the other party prompt
notice prior to making such disclosure so that the other party
may seek a protective order or other appropriate remedy prior to
such disclosure and cooperates fully with such other party in
seeking such order or remedy).
E. Notwithstanding anything else contained herein,
either party may disclose the catalog specifications generated
under Section 5.3(a) of the Joint Development Agreement to its
potential customers.
F. The obligations under this Section 4.6 shall apply
with respect to any Confidential Information for a period of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] years from the date of
disclosure of such Confidential Information to the other party,
unless with respect to any particular Confidential Information
the providing party in good faith notifies the receiving party
that a longer period shall apply, in which case the obligations
under this Section 4.6 with respect to such Confidential
Information shall apply for such longer period.
21
<PAGE> 26
Article 5. ASSOCIATED AGREEMENTS.
The following associated agreements (the "Associated
Agreements") shall be entered into on or prior to the Effective
Date; provided, however, that the Joint Venture License Agreement
only shall be entered into as soon after the Effective Date as is
reasonably practicable:
A. A Joint Development Agreement between AMD and
Fujitsu dated as of March 1993 providing for the joint
development of integrated circuit devices (the "Joint Development
Agreement").
B. A Technology Cross-License Agreement between AMD
and Fujitsu dated as of March 1993 providing for the cross-
licensing of certain of the parties' respective proprietary
semiconductor related intellectual property rights (the
"Technology Cross-License Agreement").
C. A Joint Venture License Agreement among AMD,
Fujitsu and JV dated as of March 1993 (or promptly thereafter)
providing for the license by the parties to JV of certain
proprietary technologies and sublicensable technologies necessary
for manufacturing JV Products (the "Joint Venture License
Agreement").
D. An Investment Agreement between AMD and Fujitsu
dated as of March 1993 providing for the purchase of stock in AMD
by Fujitsu (the "Fujitsu Investment Agreement").
E. An Investment Agreement between Fujitsu and AMD
dated as of March 1993 providing for the purchase of stock in
Fujitsu by AMD (the "AMD Investment Agreement," collectively with
the Fujitsu Investment Agreement, the "Investment Agreements").
22
<PAGE> 27
F. Those certain letters from AMD to Fujitsu, signed
by both parties and dated as of March 1993, setting forth the
parties' agreement as to certain matters including the
Governmental Approvals referenced in Section 1.13 of this
Agreement.
Article 6. REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of Fujitsu.
Fujitsu hereby represents and warrants to AMD, as of the date
hereof and as of the Effective Date, as follows:
A. Corporate Organization; Etc. Fujitsu is a
corporation duly organized and validly existing under the laws of
Japan.
B. Authorization; Etc. Fujitsu has full corporate
power and authority to enter into this Agreement and those of the
Associated Agreements to which it is a party and to carry out the
transactions contemplated hereby and thereby. Fujitsu has taken
all action required by law, its articles of incorporation or
otherwise to authorize the execution and delivery of this
Agreement and those of the Associated Agreements to which it is a
party. Each of this Agreement and the Associated Agreements to
which it is a party is or will be the valid and binding
obligation of Fujitsu, subject to receipt of necessary
Governmental Approvals, enforceable in accordance with its
respective terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and 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.
23
<PAGE> 28
C. No Violation. Neither the execution and delivery
by Fujitsu of this Agreement and those of the Associated
Agreements to which it is a party, nor the consummation of the
transactions contemplated hereby and thereby, will (i) conflict
with or result in a breach of any provision of Fujitsu's articles
of incorporation, (ii) conflict with or result in the breach of
any term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon any property or assets of
Fujitsu pursuant to, or otherwise require the consent of any
person under, any agreement or obligation to which Fujitsu is a
party or by which any of its properties or assets may be bound,
or (iii) violate or conflict with any Applicable Law applicable
to Fujitsu or any of its properties or assets, subject to
obtaining the requisite Governmental Approvals.
D. Consents and Approvals of Governmental Authorities.
Except for the Governmental Approvals, no consent, approval or
authorization of, or declaration, filing or registration with,
any Governmental Authority is required to be obtained by Fujitsu
in connection with the execution, delivery and performance of
this Agreement and those of the Associated Agreements to which it
is a party, and the consummation of the transactions contemplated
hereby and thereby.
E. Regulatory Applications. The information provided
by Fujitsu for use in the applications for the Governmental
Approvals will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
Section 6.2 Representations and Warranties of AMD. AMD
hereby represents and warrants to Fujitsu, as of the date hereof
24
<PAGE> 29
and as of the Effective Date, as follows:
A. Corporate Organization; Etc. AMD is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware.
B. Authorization; Etc. AMD has full corporate power
and authority to enter into this Agreement and those of the
Associated Agreements to which it is a party and to carry out the
transactions contemplated hereby and thereby. AMD has taken all
actions required by law, its certificate of incorporation and
bylaws or otherwise to authorize the execution and delivery of
this Agreement and those of the Associated Agreements to which it
is a party. Each of the Associated Agreements to which it is a
party and this Agreement is or will be the valid and binding
obligation of AMD, subject to receipt of necessary Governmental
Approvals, enforceable in accordance with their respective terms,
except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights and 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.
C. No Violation. Neither the execution and delivery
by AMD of this Agreement and those of the Associated Agreements
to which it is a party, nor the consummation of the transactions
contemplated hereby and thereby, will (i) conflict with or result
in a breach of any provision of the certificate of incorporation
or bylaws of AMD, (ii) conflict with or result in the breach of
any term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon any property or assets of AMD
25
<PAGE> 30
pursuant to, or otherwise require the consent of any person
under, any agreement or obligation to which AMD is a party or by
which any of its properties or assets may be bound, or
(iii) violate or conflict with any Applicable Law applicable to
AMD or any of its properties or assets, subject to obtaining the
requisite Governmental Approvals.
D. Consents and Approvals of Governmental Authorities.
Except for the Governmental Approvals, no consent, approval or
authorization of, or declaration, filing or registration with,
any Governmental Authority is required to be obtained by AMD in
connection with the execution, delivery and performance of this
Agreement and those of the Associated Agreements to which it is a
party and the consummation of the transactions contemplated
hereby and thereby.
E. Regulatory Applications. The information provided
by AMD for use in the applications for the Governmental Approvals
will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Article 7. TERM AND TERMINATION.
Section 7.1 Effective Date. This Agreement shall come into
force on the Effective Date. If the Effective Date does not
occur within one (1) year of the date hereof, unless otherwise
agreed by the parties, either party may terminate this Agreement
effective upon written notice to the other party.
Section 7.2 Term. The term of this Agreement shall
continue for so long as JV remains in existence, unless earlier
terminated by mutual agreement of the parties or as provided
herein.
26
<PAGE> 31
Section 7.3 Triggering Events. The occurrence of any of the
following events shall constitute a triggering event ("Triggering
Event") hereunder on the part of the party with respect to which
such event occurs ("Triggering Party"); and each party shall
inform the other party in writing of the occurrence of any
Triggering Event when known to such party.
A. A material breach of this Agreement, the AMD
Investment Agreement, the Fujitsu Investment Agreement, the Joint
Development Agreement or the Joint Venture License Agreement by
the Triggering Party, or a material misrepresentation by the
Triggering Party with respect to any condition, warranty,
representation or agreement contained in this Agreement, the AMD
Investment Agreement, the Fujitsu Investment Agreement, the Joint
Development Agreement or the Joint Venture License Agreement is
not cured within ninety (90) days after the Triggering Party
receives written notice thereof from the non-Triggering Party;
provided that failure by either party to comply with the terms of
Section 4.1.E. shall not be considered a material default until
the earlier of (a) an aggregate of [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] months of delay, or (b) the non-complying party is in
default of a payment obligation that allows creditors to
accelerate the maturity date of indebtedness in an amount in
excess of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of such party's
shareholders' equity.
B. A Triggering Party becomes the subject of a
voluntary or involuntary petition in bankruptcy or any proceeding
relating to insolvency, or composition for the benefit of
creditors, which petition or proceeding is not dismissed within
sixty (60) days after filing.
27
<PAGE> 32
C. A Triggering Party assigns all or substantially all
of the assets of its semiconductor business to any third party,
or incurs in one transaction or series of related transactions a
change in ownership of more than [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of its capital stock.
D. A third party (other than a bank, insurance company
or other financial or investment company or institution) acquires
a greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership
interest in a Triggering Party and either a seat on the board of
directors or a position of management in such party where such
acquisition of ownership and management position or seat on the
board of directors in such Triggering Party is judged by the non-
Triggering Party after careful consideration to be detrimental.
E. The Percentage Interest of the Triggering Party
falls to one third (1/3), or less.
F. A change occurs in the management of the Triggering
Party as a result of a proxy solicitation contest, which change
is judged by the non-Triggering Party after careful consideration
to be detrimental to the affairs of JV.
Section 7.4. Causes of Dissolution.
JV shall be dissolved if:
A. A Triggering Event has occurred and the non-
Triggering Party elects to dissolve JV as provided in
Section 7.5.A.(ii)
B. The parties mutually agree to dissolve JV.
28
<PAGE> 33
Section 7.5. Election of Non-Triggering Party.
A. Upon the occurrence of a Triggering Event, the non-
Triggering Party shall have the right:
(i) to acquire the Triggering Party's shares of JV
at a price equal to the lesser of (a) [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] or (b) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
(ii) to dissolve JV;
(iii) to terminate this Agreement;
(iv) to terminate either or both of the Investment
Agreements; and/or
(v) to pursue any other right or remedy available
to it.
B. In addition to the remedies set forth in Section 7.5.A. above,
upon the occurrence of a breach by one party of its obligations pursuant to
Section 2.4., 4.1.C., 4.1.D. or 4.1.E., the other party may elect, by notice to
the party in breach, to [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Said notice shall be
effective to require such [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 90 days after such
notice is given, provided that the party in breach shall be entitled to
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] prior to the effective date. Following such [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] as follows (i) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] then (ii) each
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]. If and when a party [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] completely cures
the breach that caused the [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] it may cause a
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] prior to the breach by giving notice to JV and the other
party. Said notice shall be effective upon receipt, and shall substantiate the
factual basis for such a [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to the breach; provided that
the other party shall be entitled to [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to giving
such notice.
C. The non-Triggering Party may exercise its rights
pursuant to Section 7.5.A. and/or Section 7.5.B. at any time
within one hundred and eighty (180) days after becoming aware of
a Triggering Event.
Section 7.6 Noncompetition; Nonsolicitation. If either
party sells its shares in JV within ten (10) years after the
Effective Date, whether pursuant to Section 4.3 or
Section 7.5.A., for a period of two (2) years following such
sale, such party shall be precluded from (a) manufacturing any
EPROM or Flash Memory device that is or may be competitive with
JV and is manufactured using wafer processes with geometries of
0.5 micron or less and that embodies, incorporates or is subject
29
<PAGE> 34
to any intellectual property right owned by the other party or
developed pursuant to the Joint Development Agreement or the
Joint Venture License Agreement, or (b) employing, soliciting for
employment or recommending for employment any person employed by
JV (excluding employees transferred to JV from either Fujitsu or
AMD who return to the party that transferred him or her). So
long as a party holds shares in JV, except as otherwise agreed by
the parties, such party shall be prohibited from (x)
manufacturing any EPROM or Flash Memory device that is or may be
competitive with JV and is manufactured using wafer processes
with geometries of 0.5 micron or less, or (y) employing,
soliciting for employment or recommending for employment any
person employed by JV (excluding employees transferred to JV from
either Fujitsu or AMD who return to the party that transferred
him or her). Notwithstanding the foregoing, if either party
sells its shares in JV, whether pursuant to Section 4.3 or
Section 7.5.A., such party shall be entitled to continue to
receive JV Products from JV and to sell JV Products to the extent
necessary in order to fulfill such party's commitments pursuant
to purchase orders issued by such party's customers and accepted
by such party prior to the date on which such party ceased to be
a shareholder.
Section 7.7. Name. In the event that either party sells
its shares in JV, whether pursuant to Section 4.3 or
Section 7.5.A., the name of JV shall promptly be amended to
eliminate any reference to such party.
Section 7.8. Rights Under Associated Agreements. The rights
and obligations of any Triggering Party under any of the
Associated Agreements, and any other agreements ancillary to JV's
operation, shall be specified in those agreements.
30
<PAGE> 35
Article 8. MISCELLANEOUS.
Section 8.1. Force Majeure. Neither party shall be liable
for failure to perform, in whole or in material part, its
obligations under this Agreement or any Associated Agreement if
such failure is caused by any event or condition not existing as
of the date of this Agreement and not reasonably within the
control of the affected party, including without limitation, by
fire, flood, typhoon, earthquake, explosion, strikes, labor
troubles or other industrial disturbances, unavoidable accidents,
war (declared or undeclared), acts of terrorism, sabotage,
embargoes, blockage, acts of Governmental Authorities, riots,
insurrections, or any other cause beyond the control of the
parties; provided, that the affected party promptly notifies the
other party of the occurrence of the event of force majeure and
takes all reasonable steps necessary to resume performance of its
obligations so interfered with.
Section 8.2. Assignment. Neither this Agreement nor any of
the rights and obligations created hereunder may be assigned,
transferred, pledged, or otherwise encumbered or disposed of, in
whole or in part, whether voluntary or by operation of law, or
otherwise, by either party without the prior written consent of
the other party; provided, however, that each party may assign
its rights to acquire and hold shares in JV to a wholly-owned
subsidiary of such party so long as such assignee remains wholly-
owned, directly or indirectly, by such party. No such assignment
shall relieve the assigning party of any of its obligations
hereunder. This Agreement and the Associated Agreements shall
inure to the benefit of and be binding upon the parties'
permitted successors and assigns.
Section 8.3. Survival. If a party sells all of its shares
in JV, or if JV is dissolved, or if this Agreement is terminated,
the obligations hereunder of each party to the other and to JV
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<PAGE> 36
will terminate, except that the obligations of the parties
pursuant to Sections 2.5 ("Reimbursement of Incorporation
Expenses"), 4.2.B. ("Land Lease"), 4.3 ("Transfer of Shares;
Right of First Refusal"), 7.6 ("Noncompetition;
Nonsolicitation"), 8.3 ("Survival"), 8.4 ("Notices"), 8.6
("Arbitration"), 8.7 ("Entire Agreement"), 8.8 ("Modification"),
8.11 ("No Waiver"), 8.12 ("Governing Law"), 8.13 ("Language"),
8.15 ("No Third Party Beneficiaries"), and Article 6
("Representations and Warranties") shall survive indefinitely the
termination of this Agreement. The obligations of the parties
pursuant to Section 4.6 ("Confidentiality") shall survive as
provided in Section 4.6.F.
Section 8.4. Notices. All notices and communications
required, made or permitted hereunder shall be in writing and
shall be delivered by hand or by messenger, or by recognized
courier service (with written receipt confirming delivery), or by
postage prepaid, return receipt requested, registered or
certified airmail, addressed:
If to AMD:
Advanced Micro Devices, Inc.
915 De Guigne Drive
Sunnyvale, CA 94086, USA
Attn: Mr. Gene Conner
Senior Vice President,
Operations
with a copy to:
Thomas W. Armstrong, Esq.
Vice President, General
Counsel and Secretary
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<PAGE> 37
If to Fujitsu:
Fujitsu Limited
Furukawa Sogo Building
6-1, Marunouchi 2-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Mr. Hirohiko Kondo
General Manager
Electronic Devices
Marketing Division
with a copy to:
Fujitsu Limited
Marunouchi Center Bldg.
6-1, Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Mr. Gen Iseki
General Manager
Legal Division
Each such notice or other communication shall for all
purposes hereunder be treated as effective or as having been
given as follows: (i) if delivered in person, when delivered,
(ii) if sent by airmail, at the earlier of its receipt or at
5 p.m. local time of the recipient, on the seventh day after
deposit in a regularly maintained receptacle for the deposit of
airmail, and (iii) if sent by a recognized courier service, on
the date shown in the written confirmation of delivery issued by
such delivery service. Either party may change the address(es)
and/or addressee(s) to whom notice may be given by giving notice
pursuant to this section at least seven (7) days prior to the
date the change becomes effective.
Section 8.5. Export Control. Without in any way limiting
the provisions of this Agreement, each of the parties agrees that
no products procured from or technical information disclosed by
the other party or JV under this Agreement are intended to or
shall be exported or re-exported, directly or indirectly, to any
destination restricted or prohibited by Applicable Law without
necessary authorization by the Governmental Authorities.
33
<PAGE> 38
Section 8.6. Arbitration.
A. Any and all disputes arising under or affecting
this Agreement shall be resolved exclusively by confidential
arbitration pursuant to the rules of the Japan Commercial
Arbitration Association in Tokyo, Japan, or such other location
as may be agreed between the parties; provided, however, that the
arbitrators shall be empowered to hold hearings at other
locations within and without Japan. Each of the parties shall
designate one arbitrator and the two arbitrators so designated
shall select the third arbitrator. Arbitration proceedings shall
be conducted in English with simultaneous translation into
Japanese. Among the remedies available to them, the arbitrators
shall be authorized to order the specific performance of
provisions of this Agreement and of the Associated Agreements.
The judgment upon award of the arbitrators shall be final and
binding and may be enforced in any court of competent
jurisdiction including any court of competent jurisdiction in the
United States or Japan, and each of the parties hereto
unconditionally submits to the jurisdiction of such court for the
purpose of any proceeding seeking such enforcement. Subject only
to the provisions of Applicable Law, the procedure described in
this Section 8.6 shall be the exclusive means of resolving
disputes arising under or affecting this Agreement.
B. All papers, documents or evidence, whether written
or oral, filed with or presented to the panel of arbitrators
shall be deemed by the parties and by the arbitrators to be
Confidential Information. No party or arbitrator shall disclose
in whole or in part to any other person any Confidential
Information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist
counsel in the arbitration or preparation for arbitration of the
dispute. Confidential Information may be disclosed (i) to
attorneys, (ii) to parties, and (iii) to outside experts
34
<PAGE> 39
requested by either party's counsel to furnish technical or
expert services or to give testimony at the arbitration
proceedings, subject, in the case of such experts, to execution
of a legally binding written statement that such expert is fully
familiar with the terms of this Section, agrees to comply with
the confidentiality terms of this Section, and will not use any
Confidential Information disclosed to such expert for personal or
business advantage.
Section 8.7. Entire Agreement. This Agreement, the
Associated Agreements and the exhibits hereto and thereto, embody
the entire agreement and understanding between the parties with
respect to the subject matter hereof, superseding, as of the
Effective Date, all previous and contemporaneous communications,
representations, agreements and understandings, whether written
or oral, in existence on the date this Agreement is executed,
including without limitation that certain Memorandum of
Understanding between Fujitsu and AMD dated July 13, 1992 and the
Nondisclosure Agreements. Neither party has relied upon any
representation or warranty of the other party except as expressly
set forth herein or in the Associated Agreements.
Section 8.8. Modification. This Agreement and the
surviving provisions thereof may not be modified or amended, in
whole or part, except by a writing executed by duly authorized
representatives of both parties.
Section 8.9. Announcement. The parties may announce the
existence of the parties' relationship and this Agreement at a
time to be mutually determined. Neither party shall unreasonably
withhold its consent to a time proposed by the other party.
Section 8.10. Severability. If any term or provision of
this Agreement shall be determined to be invalid or unenforceable
under Applicable Law, such provision shall be deemed severed from
35
<PAGE> 40
this Agreement, and a reasonable valid provision to be mutually
agreed upon shall be substituted. In the event that no
reasonable valid provision can be so substituted, the remaining
provisions of this Agreement shall remain in full force and
effect, and shall be construed and interpreted in a manner that
corresponds as far as possible with the intentions of the parties
as expressed in this Agreement.
Section 8.11. No Waiver. Except to the extent that a party
hereto may have otherwise agreed in writing, no waiver by that
party of any condition of this Agreement or breach by the other
party of any of its obligations or representations hereunder
shall be deemed to be a waiver of any other condition or
subsequent or prior breach of the same or any other obligation or
representation by the other party, nor shall any forbearance by
the first party to seek a remedy for any noncompliance or breach
by the other party be deemed to be a waiver by the first party of
its rights and remedies with respect to such noncompliance or
breach.
Section 8.12. Governing Law. The validity, construction,
performance and enforceability of this Agreement shall be
governed in all respects by the laws of Japan.
Section 8.13. Language. This Agreement, and the exhibits
and schedules hereto, except for the Articles of Incorporation
and the Regulations of the Board of Directors, are in the English
language, which language shall be controlling in all respects.
The Articles of Incorporation and the Regulations of the Board of
Directors are in the Japanese language, which language shall be
controlling in all respects.
Section 8.14. No Agency. This Agreement shall not
constitute an appointment of either party as the legal
representative or agent of the other party, nor shall either
36
<PAGE> 41
party have any right or authority to assume, create or incur in
any manner any obligation or other liability of any kind, express
or implied, against, in the name or on behalf of, the other
party. Nothing herein or in the transactions contemplated by
this Agreement shall be construed as, or deemed to be, the
formation of a partnership by or among the parties hereto.
Section 8.15. No Third Party Beneficiaries. No provisions
of this Agreement or any of the Associated Agreements are
intended to, or shall be construed to, confer upon or give to any
person other than the parties hereto and thereto, any rights,
remedies or other benefits under or by reason of this Agreement
or any Associated Agreement.
Section 8.16. Headings. The section and other headings
contained in this Agreement are for convenience of reference only
and shall not be deemed to be a part of this Agreement or to
affect the meaning or interpretation of this Agreement.
Section 8.17. Construction and Reference. Words used in
this Agreement, regardless of the number or gender specifically
used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or
neuter, as the context shall require. Unless otherwise
specified, all references in this Agreement to Sections are
deemed references to be corresponding Sections in this Agreement,
and all references in this Agreement to Exhibits are references
to the corresponding Exhibits attached to this Agreement.
Section 8.18. Governmental Approvals. Each of the parties
shall use its reasonable best efforts to obtain all Governmental
Approvals and shall cooperate with the other in good faith.
Section 8.19. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original, and
37
<PAGE> 42
all of which shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives
on the date set forth above.
ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED
/s/ W.J. SANDERS III /s/ TADASHI SEKIZAWA
____________________________ ___________________________
By: W.J. Sanders III By: Tadashi Sekizawa
Title: Chairman and CEO Title: President
Date: March 18, 1993 Date: March 30, 1993
38
<PAGE> 43
EXHIBITS
<TABLE>
<CAPTION>
<S> <C>
EXHIBIT A-1
Articles of Incorporation
(Japanese language)
EXHIBIT A-2
Articles of Incorporation
(English translation)
EXHIBIT B-1
Regulations of the Board of Directors (Japanese
language)
EXHIBIT B-2
Regulations of the Board of Directors (English
translation)
</TABLE>
1
<PAGE> 44
Exhibit 10.27(a)
SUBSTITUTE EXHIBIT A-1
Exhibit A-1 to the Joint Venture Agreement is a Japanese language
document. The registrant represents that Exhibit A-2 to the Joint Venuture
Agreement constitutes a fair and accurate English translation of Exhibit A-1.
ADVANCED MICRO DEVICES, INC.
By: /s/ MARVIN D. BURKETT
---------------------------------------
Marvin D. Burkett
Its: Senior Vice President
Chief Administrative Officer
and Secretary, Chief Financial
Officer and Treasurer
<PAGE> 45
EXHIBIT A-2
10-K Exhibit 10.27(a)
(TRANSLATION)
ARTICLES OF INCORPORATION
OF
FUJITSU AMD SEMICONDUCTOR K.K.
Chapter 1 General Provisions
Article 1 (Name)
The name of the Company shall be Fujitsu AMD
Semiconductor Kabushiki Kaisha in Japanese and Fujitsu AMD
Semiconductor Limited in English.
Article 2 (Object)
The object of the Company shall be to engage in the
following businesses:
(1) Manufacture and sales of semiconductor integrated
circuits
(2) All business incidental to or associated with the
preceding Item
Article 3 (Location of Head Office)
The Company shall have its head office in Kawasaki-shi,
Kanagawa-ken.
Article 4 (Method of Public Notice)
Public notice of the Company shall be made in the
Official Gazette (Kampo).
<PAGE> 46
Chapter 2 Shares
Article 5 (Number of Authorized Shares)
The total number of shares authorized to be issued by
the Company shall be eight thousand (8,000).
Article 6 (Par Value)
All shares to be issued by the Company shall be par
value common stock. The par value of each share shall be fifty
thousand yen (#50,000).
Article 7 (Kinds of Share Certificates)
Kinds of share certificates to be issued by the Company
shall be determined by the Board of Directors.
Article 8 (Restriction on Transfer of Shares)
Transfer of shares of the Company shall be subject to
the approval of [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the
entire Board of Directors.
Article 9 (Pre-emptive Right)
1. The shareholders shall have the pre-emptive right
to subscribe to new shares if new shares are issued.
2. The pre-emptive right in the preceding Paragraph
shall not be transferable separately from shares.
2
<PAGE> 47
Article 10 (Registration of Transfer of Shares, etc.)
Procedures of registration of transfer of shares,
registration or cancellation of a pledge, registration or
cancellation of a trust, re-issuance of share certificates or
other matters relating to shares of the Company shall be
determined by the Board of Directors.
Article 11 (Registration of Shareholders, etc.)
Shareholders, pledgees, trustees or their statutory
representatives shall notify the Company of their names,
addresses and seal impressions (specimen signature in case of a
foreigner with the custom of signature), or of any change to the
foregoing.
Article 12 (Record Date and Suspension of Entry to
Register of Shareholders)
1. The shareholders whose names are registered in the
register of shareholders at the end of each business term shall
be deemed to have the voting rights at the ordinary general
meeting of shareholders for such business term.
2. If necessity arises, the Company may, in
accordance with a resolution of the Board of Directors and after
giving public notice, set up a record date, whereby the
shareholders or pledgees who are registered at the record date
shall have such rights.
3. In addition to the preceding Paragraphs and if
necessity arises, the Company may, in accordance with a
resolution of the Board of Directors and after giving public
notice, suspend entry to the register of shareholders for a
certain period not exceeding three (3) months.
3
<PAGE> 48
Chapter 3 General Meeting of Shareholders
Article 13 (Convocation)
1. An ordinary general meeting of shareholders shall
be convened within three (3) months after the end of each
business term, and an extraordinary general meeting of
shareholders may be convened from time to time if necessity
arises.
2. Meetings of Shareholders shall be convened by the
Chairman or the Vice Chairman in accordance with resolutions of
the Board of Directors.
Article 14 (Place)
Meetings of Shareholders shall be held in the area
where the head office of the Company is located or at any other
place if agreed in writing by all shareholders.
Article 15 (Presiding Officer)
The Director-Chairman shall be the presiding officer of
a general meeting of shareholders. In the event that the
Director-Chairman is unable to perform his or her duties,
Director-Vice Chairman shall act in his or her place.
Article 16 (Notice)
1. Notice calling a general meeting of shareholders
shall be dispatched to each shareholder at least one month before
the day set for such meeting. The notice shall contain date,
time, place and agenda for the meeting.
2. The notice shall be prepared both in Japanese and
English and shall be dispatched to the registered address of each
4
<PAGE> 49
shareholder by registered mail. In case of shareholders not
residing in Japan, the notice shall be dispatched by registered
airmail.
3. The notice period provided for in Paragraph 1 may
be shortened to the period provided in the Commercial Code, if
all shareholders agree in writing.
Article 17 (Quorum)
The quorum of general meetings of shareholders shall be
attendance of shareholders having in total two thirds or more of
the total issued and outstanding common shares.
Article 18 (Ordinary Resolutions)
Except as otherwise provided in laws or in Article 19
of these Articles of Incorporation, resolutions at a general
meeting of shareholders shall be adopted by a majority of the
voting shares represented by the shareholders present.
Article 19 (Special Resolutions)
The following resolutions shall be made by the vote of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] the total issued and
outstanding common shares.
(1) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
(2) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
5
<PAGE> 50
Article 20 (Proxy)
An individual acting as a proxy for a shareholder
shall, on a meeting-by-meeting basis, file a proxy with the
Company.
Chapter 4 Directors and Board of Directors
Article 21 (Number of Directors)
1. The Company shall have [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] Directors.
2. In case of vacancy caused by resignation or
otherwise, an extraordinary general meeting shall be promptly
convened in accordance with Articles 13 and 16 of these Articles
of Incorporation to fill the vacancy.
Article 22 (Election)
1. The Directors shall be elected at a general
meeting of shareholders under Article 19 of these Articles of
Incorporation.
2. The Directors shall not be elected by a method of
cumulative voting.
Article 23 (Term of Office)
1. The term of office of a Director shall expire at
the close of the ordinary general meeting of shareholders
covering the last business term within one (1) year after his or
her assumption of office.
6
<PAGE> 51
2. The term of office of a Director elected to fill a
vacancy shall be the remainder of the term of office of his or
her predecessor; and provided further that the term of office of
a newly added Director shall be the remainder of the term of
office of the other Directors.
Article 24 (Remuneration)
Remuneration of the Directors shall be determined by a
resolution of shareholders at a general meeting of shareholders.
Article 25 (Representative Directors and Directors with
Special Title)
1. The Company shall, by a resolution of the Board of
Directors, elect one (1) Chairman and one (1) Vice Chairman from
among the Directors. In case of necessity of business, the
Company may have a President, Vice President(s), Executive
Managing Director(s) or Managing Director(s).
2. The Chairman and Vice Chairman shall be
Representative Directors. The Board of Directors may appoint one
or more Representative Directors from among the Directors with
special title provided for in the preceding Paragraph.
3. Representative Directors shall represent the
Company and execute the Company's business in accordance with
resolutions of the Board of Directors. Director-Chairman shall
have the exclusive authority to operate day-to-day business, and
may delegate such authority to a full-time standing (Jokin)
Director provided for in the following Paragraph.
4. Except for Director-Chairman and Director-Vice
Chairman, all Directors with special title are elected from among
the full-time standing Directors.
7
<PAGE> 52
Article 26 (Person to Convene)
The Director-Chairman, Director-Vice Chairman or two
(2) Directors may convene a meeting of the Board of Directors.
Article 27 (Presiding Officer)
The Director-Chairman shall be the presiding officer of
a meeting of the Board of Directors. If the Director-Chairman is
unable to perform his or her duties, Director-Vice Chairman shall
act in his or her place.
Article 28 (Notice)
1. Notice calling a meeting of the Board of Directors
shall be dispatched to each Director at least two (2) weeks
before the date set for such meeting. The notice shall contain
date, time, place and agenda for the meeting.
2. The notice shall be prepared both in Japanese and
English and shall be dispatched by registered mail. In case of
Directors not residing in Japan, the notice shall be dispatched
by registered airmail.
3. The notice period provided for in Paragraph 1 may
be shortened or dispensed with, if all Directors agree in
writing.
Article 29 (Place)
Meetings of the Board of Directors shall be held in the
area where the head office of the Company is located or at any
other place if agreed in writing by all Directors.
8
<PAGE> 53
Article 30 (Resolutions)
1. Except as provided for by law or by the Articles
of Incorporation, the matters relating to the Board of Directors
shall be governed by the Regulations of the Board of Directors.
2. Resolutions of the Board shall be adopted by a
majority vote of the Directors present at a meeting at which
two-thirds or more of all Directors are present.
Chapter 5 Statutory Auditors
Article 31 (Number of Statutory Auditors)
The Company shall have two (2) Statutory Auditors.
Article 32 (Election)
The Statutory Auditors shall be elected by a resolution
of shareholders at a general meeting of shareholders in
accordance with Article 19 of these Articles of Incorporation.
Article 33 (Term of Office)
1. The term of office of a Statutory Auditor shall
expire at the close of the ordinary general meeting of
shareholders covering the last business term within two (2) years
after his or her assumption of office.
2. The term of office of a Statutory Auditor elected
to fill a vacancy shall be the remainder of the term of office of
his or her predecessor.
9
<PAGE> 54
Article 34 (Full-time Standing Statutory Auditor)
The Statutory Auditors shall elect from among
themselves a full-time standing (Jokin) Statutory Auditor.
Article 35 (Remuneration)
Remuneration of the Statutory Auditors shall be
determined by a resolution of shareholders at a general meeting
of shareholders.
Chapter 6 Accounting
Article 36 (Business Term)
The business term of the Company shall commence on
April 1 of each year and shall end on March 31 of the following
year.
Article 37 (Dividends)
Dividends shall be paid to the shareholders and
registered pledgees entered in the register of shareholders as of
the closing date of each business term of the Company.
Chapter 7 Supplementary Provisions
Article 38 (The total number of Shares to be Issued at
Time of Incorporation)
The total number of shares which the Company shall
issue at the time of the incorporation shall be two thousand
(2,000), and all such shares shall be common shares with par
value. The issue price per share of the above-mentioned shares
shall be fifty thousand yen ($50,000 Yen).
10
<PAGE> 55
Article 39 (First Business Term)
The first business term of the Company shall,
notwithstanding Article 36 of these Articles of Incorporation,
commence on the date of incorporation of the Company and shall
end on March 31, 1994.
Article 40 (Initial Term of Office of Directors and
Statutory Auditors)
The term of office of the initial Directors and
Statutory Auditors shall, notwithstanding Articles 23 and 33 of
these Articles of Incorporation, expire at the close of the
ordinary general meeting of shareholders covering the last
business term within one (1) year after their assumption of
office.
Article 41 (Name and Address of Promoter)
The name and address of the promoter and the number of
shares subscribed for by the promoter are as follows:
<TABLE>
<CAPTION>
Name and Address of Promoter Number of Share
- - ---------------------------- ---------------
<S> <C>
Hirohiko Kondo 1
2-16-1 Tamanawa, Kamakura-shi
Kanagawa, Japan
</TABLE>
In order to certify the incorporation of Fujitsu AMD
Semiconductor K.K., these Articles of Incorporation have been
prepared and the promoter has affixed his seal hereto.
, 1993
----------------------
Promoter: Hirohiko Kondo
11
<PAGE> 56
10-K Exhibit 10.27(a)
SUBSTITUTE EXHIBIT B-1
Exhibit B-1 to the Joint Venture Agreement is a Japanese language
document. The registrant represents that Exhibit B-2 to the Joint Venture
Agreement constitutes a fair and accurate English translation of Exhibit B-1.
ADVANCED MICRO DEVICES, INC.
By: /s/ MARVIN D. BURKETT
________________________________________
Marvin D. Burkett
Its: Senior Vice President,
Chief Administrative Officer
and Secretary, Chief Financial
Officer and Treasurer
<PAGE> 57
EXHIBIT B-2
10-K Exhibit 10.27(a)
(TRANSLATION)
FUJITSU AMD SEMICONDUCTOR LIMITED
REGULATIONS OF THE BOARD OF DIRECTORS
As effective on ,1993
(Purpose)
Article 1.
Except as provided for by laws and ordinances or the Articles of
Incorporation, the matters relating to the Board of Directors shall be governed
by these Regulations.
(Composition)
Article 2.
The Board of Directors shall consist of all the Directors.
(Representative Directors and Directors with Titles)
Article 3.
1. A Chairman and a Vice Chairman, each of whom shall be a
Representative Director, shall be elected from among the Directors.
2. Two Full-time Standing Directors (Jookin Torishimariyaku) shall
be elected from among the Directors.
3. One or more additional Representative Directors may be elected
from among the Full-time Standing Directors.
<PAGE> 58
(Person to Convene)
Article 4.
A meeting of the Board of Directors may be convened by the Chairman,
the Vice-Chairman, or any two Directors acting together.
(Presiding Officer)
Article 5.
1. The Chairman will act as the presiding officer (Gicho) of all
meetings of the Board of Directors; provided that, if the office of the
Chairman is vacant or the Chairman is unable to attend the meeting, the Vice
Chairman will act as the presiding officer.
2. A meeting of the Board of Directors shall be presided over by
the presiding officer.
3. In case the presiding officer mentioned in the foregoing
Paragraph is unable to act, one of the other Directors will act in his place in
accordance with the order previously fixed by a resolution of the Board of
Directors.
(Kind of Meetings)
Article 6.
Meetings of the Board of Directors shall be ordinary meetings and
extraordinary meetings.
(Ordinary Meetings)
Article 7.
An ordinary meeting of the Board of Directors shall be held once each
quarter.
2
<PAGE> 59
(Extraordinary Meetings)
Article 8.
1. Extraordinary meetings of the Board of Directors shall be
convened whenever necessary.
2. Any Director may ask the Chairman or the Vice Chairman to
convene an extraordinary meeting showing the agenda and reason to convene a
meeting.
(Notices of Convocation of Meetings)
Article 9.
Notices of convocation of meetings of the Board of Directors shall be
sent in the manner provided for in the Articles of Incorporation.
(Method of Resolutions)
Article 10.
Resolutions of the Board of Directors shall be adopted by the
affirmative vote of a majority of the members of the Board of Directors present
at a meeting where not less than two-thirds (2/3) of all Directors are present.
(Interpreters)
Article 11.
Interpreters may attend meetings of the Board of Directors upon the
request of one of the Directors.
3
<PAGE> 60
(Postponement of Meetings of Board of Directors)
Article 12.
1. If the number in attendance at a meeting of the Board of
Directors properly convened is less than the number required for voting as
specified in Articles 10, the presiding officer of the meeting of the Board of
Directors can postpone the meeting of the Board of Directors, specifying a date
at least fourteen (14) days after the date of issuance of the postponement
notices specified in Paragraph 2 of this Article.
2. In the case of postponement specified in the preceding
Paragraph, the presiding officer shall, within two (2) business days after the
date when it was decided to postpone the meeting, issue a written notice to
each Director, stating the date, time and place of reconvocation of the
postponed meeting of the Board of Directors. The provisions of Article 9 shall
be applicable with the necessary modifications to the notices in question.
However, it shall be required that the entire text of the notices in question
must be transmitted by telegram simultaneously to each Director.
(Minutes of Meetings)
Article 13.
Outlines of the deliberations of meetings of the Board of Directors
as well as their results shall be recorded in minutes of meetings in both
Japanese and English. The presiding officer and all the Directors who attended
each meeting shall affix their signatures or their names and seals to them, and
they shall be retained by the Company.
4
<PAGE> 1
EXHIBIT 10.27(b)
TECHNOLOGY CROSS-LICENSE AGREEMENT
Confidential portions of this document have been deleted and filed
separately with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
<PAGE> 2
TECHNOLOGY CROSS-LICENSE AGREEMENT
Table of Contents
<TABLE>
<S> <C>
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1
2. MUTUAL RELEASE . . . . . . . . . . . . . . . . . . . . . 6
3. GRANTS OF LICENSE. . . . . . . . . . . . . . . . . . . . 6
4. IMMUNITY FOR CUSTOMERS AND USERS . . . . . . . . . . . . 9
5. SUBLICENSE . . . . . . . . . . . . . . . . . . . . . . . 10
6. CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . 11
7. USE OF PROPRIETARY INFORMATION AND COMMINGLED TECHNOLOGY 12
8. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS . . . 12
9. TERM AND TERMINATION . . . . . . . . . . . . . . . . . . 13
10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 16
ATTACHMENT A. . . . . . . . . . . . . . . . . . . . . . . . . 22
ATTACHMENT B. . . . . . . . . . . . . . . . . . . . . . . . . 25
</TABLE>
i
<PAGE> 3
TECHNOLOGY CROSS-LICENSE AGREEMENT
This Technology Cross-License Agreement (this
"Agreement"), dated as of March 26, 1993, is between
ADVANCED MICRO DEVICES, INC. ("AMD"), a Delaware corporation
having its principal officeat 901 Thompson Place, Sunnyvale,
California, 94088-3453, U.S.A., and FUJITSU LIMITED ("Fujitsu"),
a Japanese corporation having its registered office at
1015 Kamikodanaka, Nakahara-ku, Kawasaki 211, Japan.
INTRODUCTION
A. Fujitsu and AMD each own or control various patent
and other intellectual property rights to which the other party
wishes to acquire a license.
B. Fujitsu and AMD are engaged in continuing
research, development and engineering with regard to Licensed
Products (as defined below).
C. Fujitsu and AMD desire to establish an amicable
and mutually beneficial relationship and, more specifically,
desire to grant licenses and exchange semiconductor technology in
accordance with the following terms and conditions.
ACCORDINGLY, in consideration of the mutual covenants
and promises contained herein, the parties hereto agree as
follows:
Article 1. DEFINITIONS.
As used in this Agreement, the following terms
shall have the following meanings:
Section 1.1. "Affiliate", with respect to a
party, shall mean the companies affiliated with such party as
specified in Attachment A hereto, which may be amended from time
to time upon the agreement of the parties.
Section 1.2. "Applicable Law" shall mean, with
respect to a party, any statute, law, ordinance, rule,
administrative interpretation, regulation, order, writ,
injunction, directive, judgment, decree or other requirement of
any Governmental Authority applicable to such party or its
properties, business or assets.
Section 1.3. "Auxiliary Part" shall mean
input/output means, supporting means, terminal members,
conductors or equivalent interconnecting members, housing means,
any environmental controlling means included within such housing
means or unitary with such housing means, and active and/or
1
<PAGE> 4
passive elements unitarily or separately combined with a
Semiconductor Product and any other parts, primarily usable in or
for manufacturing Semiconductor Products.
Section 1.4. "Confidential Information" shall
mean information or materials disclosed to a party by the other
party that are identified as, or provided under circumstances
indicating the information or materials are, confidential or
proprietary.
Section 1.5. [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION].
Section 1.6. "Effective Date" shall mean the
later to occur of (a) the date of this Agreement or (b) the date
which all required Governmental Approvals have been obtained.
Section 1.7. "EPROM" or "Electrically
Programmable Read Only Memory" shall mean a non-volatile
semiconductor memory device incorporating floating gate structure
cells, which device is electrically programmable and erasable by
using ultraviolet light. The device mainly consists of such
floating gate structure cells, with auxiliary logic circuits, if
any, where such logic circuits are used solely for memory
operation or interface to other products. OTPROM or One Time
PROM, which is a certain non-volatile semiconductor device
incorporating the same chip as EPROM and packaged without
transparent windows for ultraviolet light, shall be included in
the definition of EPROM.
Section 1.8. "Flash Memory" shall mean a non-
volatile semiconductor memory device incorporating floating gate
structure cells, which device is programmable and erasable by
electrically injecting and electrically discharging electric
charges into and from floating gates. The device mainly consists
of such floating gate structure cells, with auxiliary logic
circuits, if any, where such logic circuits are used solely for
memory operation or interface to other products.
Section 1.9. "Governmental Approvals" shall mean
all approvals, consents, authorizations and similar actions from
all Governmental Authorities that the parties agree are desirable
in order to consummate the transactions hereunder.
Section 1.10. "Governmental Authority" shall mean
any foreign, domestic, national, federal, territorial,
prefectural, state or local governmental authority, quasi-
governmental authority, court, government or self-regulatory,
administrative or other agency, or any political or other
subdivision, department, or branch of any of the foregoing.
Section 1.11. "Incorporated Product", with
respect to a party, shall mean a product, other than an NVM or a
Memory Card, into which such party has incorporated NVM(s) made
by or for such party or JV, or portions of such NVM(s). Without
limitation, Incorporated Product shall include both (a) an
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<PAGE> 5
information handling system, circuit board or multichip module
that incorporates such NVM(s) or (b) a Semiconductor Product that
incorporates circuits of such NVM(s) with other circuits.
Section 1.12. "IPR" or "Intellectual Property
Rights", (a) with respect to a party, shall mean such party's
Patents, Proprietary Information and Other IPR, and (b) with
respect to a third party, shall mean the equivalents of the
foregoing, except that, in any case, IPR shall exclude
trademarks, service marks, trade names and their equivalents, and
any contraction, abbreviation, or simulation thereof.
Section 1.13. "Joint Development Agreement" shall
mean the Joint Development Agreement as defined in the Joint
Venture Agreement, and any amendments or modifications thereto.
Section 1.14. "Joint Venture Agreement" shall
mean that certain joint venture agreement to be entered into by
the parties concurrently with this Agreement, and any amendments
or modifications thereto.
Section 1.15. "Joint Venture License Agreement"
shall mean the Joint Venture License Agreement as defined in the
Joint Venture Agreement, and any amendments or modifications
thereto.
Section 1.16. "JV" shall mean Fujitsu AMD
Semiconductor Limited, a Japanese corporation being formed by AMD
and Fujitsu pursuant to the Joint Venture Agreement.
Section 1.17. [Intentionally omitted]
Section 1.18. "Licensed Product" shall mean any
of the items described in the following clauses (a) through (c)
and/or parts thereof:
(a) Semiconductive Material;
(b) Auxiliary Part; or
(c) Semiconductor Product.
Licensed Products shall include NVMs and Memory Cards, unless
otherwise expressly provided herein.
Section 1.19. "Manufacturing Apparatus" shall
mean any instrumentality or aggregate of instrumentalities
primarily designated for use in the fabrication of Licensed
Products.
Section 1.20. "Memory Card" shall mean an EPROM
or Flash Memory card, module or board which consists mainly of
NVM(s) and auxiliary semiconductor logic, if any, where such
auxiliary semiconductor logic is used solely for memory operation
or interface to other products.
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<PAGE> 6
Section 1.21. "Nondisclosure Agreements" shall
mean the Nondisclosure Agreements between Fujitsu and AMD dated
March 12, 1992 and July 20, 1992 and the Confidentiality
Agreement between Fujitsu and AMD dated October 16, 1992.
Section 1.22. "Non-Semiconductor Group", with
respect to a party, shall mean the party's internal group or
other organization that is not the Semiconductor Group of such
party. It is understood that AMD currently does not have such a
Non-Semiconductor Group. Should AMD elect to form a Non-
Semiconductor Group in the future, such Group shall at that time
have all of the rights and privileges, subject to the
obligations, of a Non-Semiconductor Group hereunder.
Section 1.23. "NVM" or "Non-Volatile Memory",
with respect to a party, shall mean any EPROM or Flash Memory in
wafer, die or packaged device form manufactured using wafer
processes with geometries of 0.5 micron or less that embodies,
incorporates or is subject to (or is manufactured through
processes or methods that embody, incorporate or are subject to)
IPR of the other party.
Section 1.24. "Other IPR", with respect to a
party, shall mean all mask work rights and copyrights relating to
software or microcode, and the equivalents of the foregoing
(under the laws of any jurisdiction, including without
limitation, all applications and registrations with respect
thereto) that both (a) are covered, embodied, or incorporated in
the materials or information deliberately provided by such party
to the other party in accordance with the Joint Development
Agreement or the Nondisclosure Agreements, or deliberately
provided by such party to JV or by JV to such party in accordance
with the Joint Venture License Agreement and (b) are wholly owned
by such party or as to which, and only to the extent and subject
to the conditions under which, such party has the right, as of
the Effective Date or thereafter during the term of this
Agreement, to grant licenses or sublicenses of the scope granted
herein, without such grant resulting in the payment of royalties
or other consideration to third parties (unless and until the
other party undertakes to reimburse such party for any payments
so made, in which case such mask work rights and copyrights and
equivalents shall be included within such party's Other IPR),
except for payments to a Subsidiary of such party sublicensed
hereunder or payments to third parties for Other IPR developed or
created by such third parties while employed by such party or any
Subsidiary of such party sublicensed hereunder.
Section 1.25. "Patents", with respect to a party,
shall mean all classes or types of patents, utility models,
design patents and reissues, importations and confirmations
thereof, and other indicia of ownership, and respective
applications therefor of all countries of the world, provided
such indicia of ownership or applications therefor meet both the
following conditions: (a) have a filing date, or claim the
benefit of a filing date, prior to the expiration or termination
of this Agreement, and (b) are wholly owned by such party prior
to the expiration or termination of this Agreement, or as to
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<PAGE> 7
which, and only to the extent and subject to the conditions under
which, such party has the right, as of the Effective Date or
thereafter during the term of this Agreement, to grant licenses
or sublicenses of the scope granted herein, without such grant
resulting in the payment of royalties or other consideration to
third parties (unless and until the other party undertakes to
reimburse such party for any payments so made, in which case such
patents shall be included within such party's Patents), except
for payments to a Subsidiary of such party sublicensed hereunder
or payments to third parties for inventions made by such third
parties while employed by such party or any Subsidiary of such
party sublicensed hereunder.
Section 1.26. "Pilot Product", with respect to a
party, shall mean (i) an NVM wafer manufactured by or for (except
by the JV) such party or (ii) an NVM die or packaged device made
by or for (except by the JV) such party from such NVM wafer.
Section 1.27. [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION].
Section 1.28. "Proprietary Information", with
respect to a party, shall mean any trade secrets, copyrighted
material (except as is otherwise provided in this Section 1.28),
know-how, data, formula, processes, confidential information, or
other information, tangible or otherwise, of such party that both
(a) comes to the knowledge of the other party (whether or not
deliberately provided by such party) in the course of performing
the Joint Development Agreement or the Joint Venture License
Agreement or pursuant to the Nondisclosure Agreements, and (b) is
wholly owned by such party or as to which, and only to the extent
and subject to the conditions under which, such party has the
right, as of the Effective Date or thereafter during the term of
this Agreement, to grant licenses or sublicenses of the scope
granted herein, without such grant resulting in the payment of
royalties or other consideration to third parties (unless and
until the other party undertakes to reimburse such party for any
payments so made, in which case such information shall be
included within such party's Proprietary Information), except for
payments to a Subsidiary of such party sublicensed hereunder or
payments to third parties for Proprietary Information developed
or created by such third parties while employed by such party or
any Subsidiary of such party sublicensed hereunder. Proprietary
Information does not include mask work rights or copyrights
relating to software or microcode or the equivalents of such
rights.
Section 1.29. "Semiconductor Group", with respect
to a party, shall mean the internal group or other organization
of such party currently having as its primary activities the
research and development, making and selling of Semiconductor
Products to the semiconductor merchant market, and controlling
semiconductor-related IPR arising by virtue of such activities.
Section 1.29.1. The Fujitsu Semiconductor Group
currently consists of (and is limited to) the Electronic Devices
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<PAGE> 8
Group of Fujitsu, and will consist in the future of any successor
organization(s) which succeeds to the semiconductor-related
research and development, making, selling and/or IPR of the
Electronic Devices Group.
Section 1.29.2. The AMD Semiconductor Group
currently consists of AMD in its entirety, and will consist in
the future of any successor organization(s) which succeeds to the
semiconductor-related research and development, making, selling
and/or IPR of any current AMD operations.
Section 1.30. "Semiconductor Product" shall mean:
(a) a Semiconductive Element; or
(b) a Semiconductive Element and one or more
films of conductive, semiconductive or insulating materials
formed on a surface or surfaces of such Semiconductive Element,
said film or films comprising one or more conductors, active or
passive electrical circuit elements, or any combination thereof;
or
(c) a unitary assembly consisting of one or more
of the elements described in clauses (a) and/or (b) of this
Section 1.30 having a fixed permanent physical relationship
established therebetween; or
(d) a unitary assembly consisting primarily of
(i) one or more of the elements described in clauses (a), (b)
and/or (c) of this Section , and (ii) one or more film
devices having a fixed permanent physical relationship
established therebetween.
Semiconductor Product includes, if provided therewith as a part
thereof, (i) Auxiliary Parts and (ii) additional electrical
circuits constituted thereby and integrally included therein,
provided that such Auxiliary Parts and additional electrical
circuits are incidental to the functionality of such
Semiconductor Products.
Section 1.31. "Semiconductive Element" shall mean
an element consisting primarily of a body of Semiconductive
Material having a plurality of electrodes associated therewith,
whether or not said body consists of a single Semiconductive
Material or of a multiplicity of such materials, whether or not
said body has, therein and/or thereon, one or more junctions and
whether or not said body includes one or more layers or other
regions (constituting substantially less than the whole of said
body) of a material or materials which are of a type other than
Semiconductive Material, and if provided as a part thereof, said
element includes passivating means thereof.
Section 1.32. "Semiconductive Material" shall
mean any material whose conductivity is intermediate to that of
metals and insulators at room temperature and whose conductivity
increases with increasing temperature over some temperature
range.
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Section 1.33. "Subsidiary", with respect to a
party, shall mean any corporation, partnership or other entity,
more than fifty percent (50%) of whose shares or ownership
interests entitled to vote for the election of directors (other
than any shares whose voting rights are subject to restriction)
or, in the case of a noncorporate entity, the equivalent
interests, are owned or controlled by such party, directly or
indirectly, now or hereafter, but such corporation, partnership
or other entity shall be deemed to be a Subsidiary only for so
long as such ownership or control exists.
Section 1.34. "Transitional Event" shall mean the
earlier to occur of (i) termination or expiration of the Joint
Venture Agreement, (ii) dissolution of the JV, or (iii) Fujitsu
or AMD ceasing to be a shareholder of the JV.
Article 2. MUTUAL RELEASE.
Section 2.1. Fujitsu hereby releases, acquits and
forever discharges AMD hereunder from any and all claims or
liability for infringement or alleged infringement of any Fujitsu
IPR by performance of acts prior to the Effective Date which, if
performed on or after the Effective Date, would be acts licensed,
sublicensed or immunized hereunder.
Section 2.2. AMD hereby releases, acquits and
forever discharges Fujitsu hereunder from any and all claims or
liability for infringement or alleged infringement of any AMD IPR
by performance of acts prior to the Effective Date which, if
performed on or after the Effective Date, would be acts licensed,
sublicensed or immunized hereunder.
Article 3. GRANTS OF LICENSE.
Section 3.1. Fujitsu hereby grants to AMD a non-
exclusive and non-transferable license under Fujitsu IPR:
(a) to make, have made (it being understood that
for purposes of this Agreement the terms "make" and "have made"
shall include the acts of assembling, packaging, and/or testing),
use, sell, lease, or otherwise dispose of Licensed Products and
Incorporated Products anywhere in the world, but excluding
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION], NVMs and Memory Cards,
except as otherwise specified in Attachment B; and
(b) to make, have made and use Manufacturing
Apparatuses anywhere in the world, and to sell, lease, or
otherwise dispose of such Manufacturing Apparatuses anywhere in
the world, provided that such sale, lease or other disposition is
incidental to a technology license to make Licensed Products to
which such Manufacturing Apparatuses relate.
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<PAGE> 10
Section 3.2. AMD hereby grants to Fujitsu a non-
exclusive and non-transferable license under AMD IPR:
(a) to make, have made, use, sell, lease, or
otherwise dispose of Licensed Products and Incorporated Products
anywhere in the world, but excluding [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION], NVMs and Memory Cards, except as otherwise specified
in Attachment B; and
(b) to make, have made and use Manufacturing
Apparatuses anywhere in the world, and to sell, lease, or
otherwise dispose of such Manufacturing Apparatuses anywhere in
the world, provided that such sale, lease or other disposition is
incidental to a technology license to make Licensed Products to
which such Manufacturing Apparatuses relate.
Section 3.3. Fujitsu and AMD agree that upon the
occurrence of a Transitional Event, whether or not it results in
termination under Article 9, or upon the assumption by or on
behalf of a party (including a bankruptcy trustee or
representative or debtor in possession) of the rights and
obligations of this Agreement in a bankruptcy or insolvency
proceeding involving such party, the licenses under Sections 3.1
and 3.2, respectively, shall automatically, without further
action by either party, be changed so that the licenses become
licenses to make, have made, use, sell, lease or otherwise
dispose of any volume of Licensed Products, including NVMs and
Memory Cards, anywhere in the world not subject to the conditions
of Attachment B, but excluding, in the case of Section 3.1,
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION], and, in the case of
Section 3.2, [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
Section 3.4.
Section 3.4.1. Notwithstanding anything to the
contrary in Sections 1.12 and 3.1, Articles 4 and 5, or any other
provision of this Agreement:
(a) The rights, licenses and immunities granted
by Fujitsu hereunder to AMD (and the definition of "IPR" included
in such grant) shall exclude IPR of any Fujitsu Non-Semiconductor
Group except that:
(i) Such Fujitsu Non-Semiconductor Group, at
its option, may grant to the AMD Semiconductor Group a license of
such Fujitsu Non-Semiconductor Group's Patents that relate to (A)
processes for manufacturing Licensed Products, (B) the device
structure (but not circuits) of Licensed Products, or (C) the
materials comprising Licensed Products (collectively,
"Semiconductor-Related"). Unless such Fujitsu Non-Semiconductor
Group grants such a license to the AMD Semiconductor Group and
such license is otherwise of a scope that is equivalent to that
of Section 3.1, such Fujitsu Non-Semiconductor Group may not
exercise the rights, licenses and immunities granted hereunder to
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Fujitsu with respect to Licensed Products, except Licensed
Products that are made by or for Fujitsu Semiconductor Group, a
Subsidiary sublicensed hereunder, the JV or another Non-
Semiconductor Group that has acquired the right (pursuant to this
Section 3.4.1(a)(i)) to exercise such rights, licenses and
immunities granted hereunder to Fujitsu.
(ii) If the Fujitsu Semiconductor Group
provides or makes available to AMD information, material or
technology in connection with activities related to the Joint
Development Agreement or the Joint Venture License Agreement, and
such information, material or technology embodies, incorporates
or is subject to any Semiconductor-Related IPR of a Fujitsu Non-
Semiconductor Group that is used by the Fujitsu Semiconductor
Group, the Fujitsu Semiconductor Group shall (unless such Fujitsu
Non-Semiconductor Group has granted a license of such IPR
pursuant to clause (i)) arrange for a license or immunity from
suit under such IPR to the AMD Semiconductor Group, provided that
AMD shall pay any related reasonable license fees or royalties.
Such license or immunity shall otherwise be of a scope equivalent
to that of Section 3.1, but shall be no broader than the rights
of the Fujitsu Semiconductor Group to such IPR.
(b) An AMD Non-Semiconductor Group may, at
its option, obtain a license hereunder of the circuit Patents of
the Fujitsu Semiconductor Group. Such license shall be of a
scope equivalent to that of Section 3.1. If such AMD Non-
Semiconductor Group obtains such a license, it shall grant back
to the Fujitsu Semiconductor Group a license hereunder of such
AMD Non-Semiconductor Group's circuit Patents. Such license
shall otherwise be of a scope equivalent to that of Section 3.2.
Section 3.4.2. Notwithstanding anything to the
contrary in Sections 1.12 and 3.2, Articles 4 and 5, or any other
provision of this Agreement:
(a) The rights, licenses and immunities granted
by AMD hereunder to Fujitsu (and the definition of "IPR" included
in such grant) shall exclude IPR of any AMD Non-Semiconductor
Group except that:
(i) Such AMD Non-Semiconductor Group, at its option, may
grant to the Fujitsu Semiconductor Group a license of such AMD
Non-Semiconductor Group's Semiconductor-Related Patents. Unless such AMD
Non-Semiconductor Group grants such a license to the Fujitsu Semiconductor
Group and such license is otherwise of a scope that is equivalent to that of
Section 3.2, such AMD Non- Semiconductor Group may not exercise the rights,
licenses and immunities granted hereunder to AMD with respect to Licensed
Products, except Licensed Products that are made by or for AMD Semiconductor
Group, a Subsidiary sublicensed hereunder, the JV or another Non-Semiconductor
Group that has acquired the right (pursuant to this Section 3.4.2(a)(i)) to
exercise such rights, licenses and immunities granted hereunder to AMD.
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(ii) If the AMD Semiconductor Group provides
or makes available to Fujitsu information, material or technology
in connection with activities related to the Joint Development
Agreement or the Joint Venture License Agreement, and such
information, material or technology embodies, incorporates or is
subject to any Semiconductor-Related IPR of an AMD Non-
Semiconductor Group that is used by the AMD Semiconductor Group,
the AMD Semiconductor Group shall (unless such AMD Non-
Semiconductor Group has granted a license of such IPR pursuant to
clause (i)) arrange for a license or immunity from suit under
such IPR to the Fujitsu Semiconductor Group, provided that
Fujitsu shall pay any related reasonable license fees or
royalties. Such license or immunity shall otherwise be of a
scope equivalent to that of Section 3.2, but shall be no broader
than the rights of the AMD Semiconductor Group to such IPR.
(b) A Fujitsu Non-Semiconductor Group may, at its
option, obtain a license hereunder of the circuit Patents of the
AMD Semiconductor Group. Such license shall be of a scope
equivalent to that of Section 3.2. If such Fujitsu Non-
Semiconductor Group obtains such a license, it shall grant back
to the AMD Semiconductor Group a license hereunder of such
Fujitsu Non-Semiconductor Group's circuit Patents. Such license
shall otherwise be of a scope equivalent to that of Section 3.1.
Section 3.5. Fujitsu and AMD agree that they have
given full consideration to the value of the IPR of the other
party and to the costs, benefits, burdens and uncertainties of
assessing such value. Fujitsu and AMD further agree that they
have given full consideration to the possibility that one or
more patents of the other party may be invalid or unenforceable,
and the Other IPR and Proprietary Information of the other
party may decline or increase in value after the Effective
Date. Based on the foregoing, Fujitsu and AMD have determined
that the rights granted hereunder are [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] contained in this Agreement and that any change
in the circumstances under which this Agreement is entered into
(including a final determination as to the invalidity or
unenforceability of a patent) shall not effect such determination.
Section 3.6. Notwithstanding anything else
contained herein, AMD acknowledges that the licenses granted
in Section 3.1 do not include any rights with respect to
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION] and Fujitsu acknowledges
that the licenses granted in Section 3.2 do not include any rights
with respect to [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The
Parties acknowledge that the exclusion of [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION] from the licenses granted to AMD in
Section 3.1(a) is based on current conditions with respect to
the role of [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] in the
business and operations of AMD. Each party agrees to negotiate
in good faith if, based on a change in such business and
operations, the other party wishes to omit such exclusion.
Article 4. IMMUNITY FOR CUSTOMERS AND USERS.
Section 4.1. Fujitsu hereby forever grants to the
customers and users of Licensed Products or Incorporated Products
that are sold, leased or otherwise disposed of by AMD pursuant
to, and subject to the conditions of, this Agreement a worldwide,
royalty-free and non-exclusive immunity from suit, damages and
claims by Fujitsu under Fujitsu IPR to use, sell, lease or
otherwise dispose of such Licensed Products or Incorporated
Products, provided that such royalty-free immunity for such
customers and users shall extend only to the use, sale, lease or
other disposition of such particular Licensed Products or
Incorporated Products that such customers and users obtained
directly or indirectly from AMD. [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]. The sale, lease, or other disposition to customers
and users of Licensed Products or Incorporated Products by AMD
does not convey any license, by implication, estoppel, or
otherwise, to such customers and users under Patent claims
covering combinations of such Products with other devices or
elements.
Section 4.2. AMD hereby forever grants to the
customers and users of Licensed Products or Incorporated Products
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that are sold, leased or otherwise disposed of by Fujitsu
pursuant to, and subject to the conditions of, this Agreement a
worldwide, royalty-free and non-exclusive immunity from suit,
damages and claims by AMD under AMD IPR to use, sell, lease or
otherwise dispose of such Licensed Products or Incorporated
Product, provided that such royalty-free immunity for such
customers and users shall extend only to the use, sale, lease or
other disposition of such particular Licensed Products or
Incorporated Products that such customers and users obtained
directly or indirectly from Fujitsu. [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]. The sale, lease, or other disposition to customers
and users of Licensed Products or Incorporated Products by
Fujitsu does not convey any license, by implication, estoppel, or
otherwise, to such customers and users under Patent claims
covering combinations of such Products with other devices or
elements.
Article 5. SUBLICENSE.
Section 5.1. Each party shall have the right to
grant sublicenses of the rights, licenses and immunities granted
to such party under Section 3.1 or 3.2, as well as Articles 2 and
4 and this Article 5, to a Subsidiary of such party but subject
to the condition that such Subsidiary grants a license to the
other party hereunder of the Patents, if any, of such Subsidiary,
as follows: If such Subsidiary is subject to control by a Non-
Semiconductor Group, such grant-back license (a) shall be to the
Semiconductor Group of the other party and (b) shall be of
Semiconductor-Related (as defined in Section 3.4.1(a)(i))
Patents. If such Subsidiary is subject to control by the
Semiconductor Group, such license (a) shall be to the other party
as a whole and (b) shall be of all Patents of such Subsidiary.
Any such license shall otherwise be of a scope equivalent to that
of Section 3.1 or 3.2 (as applicable). It is hereby stated, for
confirmation purposes, that (i) it is an option, and not an
obligation, for a Subsidiary to grant such a license, unless and
until such Subsidiary elects to be granted a sublicense of such
rights, licenses and immunities, and (ii) even without obtaining
such a sublicense, a Subsidiary of a party may exercise the
rights, licenses and immunities granted hereunder to the same
extent as a Non-Semiconductor Group of such party that has not
granted a license to the other party's Semiconductor Group under
Section 3.4.1(a)(i) or 3.4.2(a)(i).
Section 5.2. If requested by a party, the other
party shall cause a Subsidiary actually controlled by the
Semiconductor Group of such other party to grant a license to
such party under Section 5.1.
Section 5.3. If the Semiconductor Group of a
party provides or makes available to the other party information,
material or technology in connection with activities related to
the Joint Development Agreement or the Joint Venture License
Agreement, and such information, material or technology embodies,
incorporates or is subject to any Semiconductor-Related (as
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defined in Section 3.4.1(a)(i)) IPR of a Subsidiary of such party
that is used by such Semiconductor Group, such Semiconductor
Group shall (unless such Subsidiary has granted a license to such
other party pursuant to Section 5.1) arrange for a license or
immunity from suit under such IPR to the Semiconductor Group of
such other party, provided that such other party shall pay any
related reasonable license fees or royalties. Such license or
immunity shall otherwise be of a scope equivalent to that of
Section 3.1 or 3.2.
Section 5.4. A party shall not have the right to
grant sublicenses hereunder except as provided herein.
Article 6. CONFIDENTIALITY.
Section 6.1. Except as expressly authorized by
the other party (including without limitation the exercise of the
rights granted to a party under this Agreement, the Joint
Development Agreement and the Joint Venture License Agreement)
each party agrees not to disclose, use or permit the disclosure
or use by others of any Confidential Information unless and to
the extent such Confidential Information (i) is not marked or
designated in writing as confidential and is provided for a
purpose that reasonably contemplates disclosure to or use by
others, (ii) becomes a matter of public knowledge through no
action or inaction of the party receiving the Confidential
Information, (iii) was in the receiving party's possession before
receipt from the party providing such Confidential Information,
(iv) is rightfully received by the receiving party from a third
party without any duty of confidentiality, (v) is disclosed to a
third party by the party providing the Confidential Information
without a duty of confidentiality on the third party, (vi) is
disclosed by the receiving party despite the exercise of the same
degree of care used by the receiving party to safeguard its own
similar Confidential Information, but the receiving party shall
take all necessary steps to prevent any further disclosure, (vii)
is disclosed with the prior written approval of the party
providing such Confidential Information, or (viii) is
independently developed by the receiving party without any use of
the other party's Confidential Information. Confidential
Information shall not be deemed to be available to the general
public for the purpose of exclusion (ii) above with respect to
each party (x) merely because it is embraced by more general
information in the prior possession of the receiving party or
others, or (y) merely because it is expressed in public
literature in general terms not specifically in accordance with
the Confidential Information.
Section 6.2. In furtherance, and not in
limitation of the foregoing Section 6.1, each party agrees to do
the following with respect to any such Confidential Information:
(i) exercise the same degree of care to safeguard the
confidentiality of, and prevent the unauthorized use of, such
information as that party exercises to safeguard the
confidentiality of its own Confidential Information, (ii)
restrict disclosure of such information to those of its
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employees, agents and sublicensees who have a "need to know", and
(iii) instruct and require such employees, agents and
sublicensees to maintain the confidentiality of such information
and not to use such information except as expressly permitted
herein. Each party further agrees not to remove or destroy any
proprietary or confidential legends or markings placed upon any
documentation or other materials.
Section 6.3. The foregoing confidentiality
obligations shall also apply to the contents of this Agreement.
Section 6.4. The obligations under this Article 6
shall not prevent the parties from disclosing the Confidential
Information or terms of this Agreement to any government agency
or body as required by law (provided that the party required to
make such disclosure in such circumstances has given the other
party prompt notice prior to making such disclosure so that the
other party may seek a protective order or other appropriate
remedy prior to such disclosure and cooperates fully with such
other party in seeking such order or remedy).
Section 6.5. The obligations under this Article 6
shall apply with respect to any Confidential Information for a
period of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] from the date of
disclosure of such Confidential Information to the receiving
party, unless with respect to any particular Confidential
Information the providing party in good faith notifies the
receiving party in writing that a longer period shall apply, in
which case the obligations under this Article 6 with respect to
such Confidential Information shall apply for such longer period.
Article 7. USE OF PROPRIETARY INFORMATION AND COMMINGLED
TECHNOLOGY.
Section 7.1. The parties hereto agree that each party shall
have the right to freely use for internal purposes, in accordance with the
provisions of Article 6, the Proprietary Information or Other IPR received from
the other party. Neither party will knowingly provide to a third party the
distinct and independent Proprietary Information or Other IPR received from the
other party, except as may be permitted under this Agreement, the Joint
Development Agreement or the Joint Venture License Agreement. [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]. Both parties shall treat Commingled Technology with the same
degree of care with respect to its transfer to and use by third part(ies)
(including the imposition of confidentiality obligations on any transferee) as
they take with respect to their own Proprietary Information and Other IPR.
Section 7.2. Nothwithstanding anything else contained herein,
Fujitsu and AMD each hereby grants [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION].
Article 8. WARRANTIES, LIMITATION ON LIABILITY, AND
COVENANTS.
Section 8.1. Each party hereto represents and
warrants to the other party that it has the right, and will
continue during the term of this Agreement to have the right, to
grant to or for the benefit of the other party the rights and
licenses granted hereunder in accordance with the terms of this
Agreement and such grant of rights and licenses does not, and
will not during the term of this Agreement, conflict with the
rights and obligations of such party under any other license,
agreement, contract or other undertaking. Each party shall
13
<PAGE> 16
indemnify, hold harmless and defend the other party against a
breach by such party of this Section 8.1.
Section 8.2. Nothing contained in this Agreement
shall be construed as:
(a) a warranty or representation by any of the
parties hereto or its Subsidiaries sublicensed hereunder as to
the validity or scope of any Fujitsu IPR or AMD IPR, as the case
may be; or
(b) conferring upon any party hereto or its
Subsidiaries sublicensed hereunder any license, right or
privilege under any patents, utility models, design patents,
copyrights, mask work rights or trade secrets except the
licenses, rights and privileges expressly granted hereunder; or
(c) a warranty or representation that any acts
licensed or sublicensed hereunder will be free from infringement
of patents, utility models, design patents, copyrights, mask work
rights or trade secrets other than those under which licenses,
rights and privileges have been expressly granted hereunder; or
(d) an arrangement to bring or prosecute actions
or suits against third parties for infringement or conferring any
right to bring or prosecute actions or suits against third
parties for infringement; or
(e) conferring any right to use in advertising,
publicly or otherwise, any trademark, service mark, trade name or
their equivalent, or any contraction, abbreviation or simulation
thereof, of either party hereto or their Subsidiaries sublicensed
hereunder.
Section 8.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
NEITHER PARTY HERETO MAKES ANY WARRANTIES, WHETHER EXPRESS OR
OTHERWISE, CONCERNING ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES,
DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED
PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR
WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS, AND NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON
ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING IN ANY WAY OUT
OF THIS AGREEMENT OR ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES,
DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED
PURSUANT TO THIS AGREEMENT.
Article 9. TERM AND TERMINATION.
Section 9.1. Term. This Agreement shall become
effective on the Effective Date and shall, unless and until
earlier terminated hereunder, remain in effect until the later to
occur of (i) the tenth anniversary date of the Effective Date and
14
<PAGE> 17
(ii) the date of a Transitional Event, at which time this
Agreement shall terminate. At the request of either party, both
parties shall negotiate in good faith to extend the term of this
Agreement, with or without amendment to the provisions hereof.
Section 9.2. Termination. Termination of this
Agreement may result from the events listed below. Each party
agrees to give prompt written notice to the other party of the
happening of any such event.
(a) If either party hereto defaults in the
performance of any material obligation hereunder, the non-
defaulting party may give written notice thereof and the parties
shall discuss the problem arising from such default in good faith
and seek to resolve such problem. If such default is not
corrected or otherwise addressed by the defaulting party to the
reasonable satisfaction of the non-defaulting party within ninety
(90) days after the written notice of such default, then the non-
defaulting party may, in addition to any other remedies it may
have, terminate this Agreement by written notice. This Agreement
shall terminate on the thirtieth (30th) day after such notice of
termination.
(b) Each party hereto may terminate this
Agreement, by giving written notice of termination to the other
party at any time, upon or after:
(i) the filing by such other party of a
petition in bankruptcy or insolvency;
(ii) any adjudication that such other party
is bankrupt or insolvent;
(iii) the filing by such other party of any
legal action or document seeking reorganization, readjustment or
arrangement of such other party's business under any law relating
to bankruptcy or insolvency;
(iv) the appointment of a receiver or
bankruptcy trustee for all or substantially all of the property
of such other party;
(v) the making by such other party of a
general assignment for the benefit of creditors; or
(vi) the institution of any proceedings for
the liquidation or winding up of such other party's business or
for the termination of its corporate charter, provided, in the
event such proceedings are involuntary, the proceedings are not
dismissed within ninety (90) days.
(c) If at any time during the term of this
Agreement, (i) a party incurs in one transaction or a series of
related transactions a change in ownership of more than
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] of its capital stock, (ii) a
party consolidates with or merges with or into another
15
<PAGE> 18
corporation, partnership or other entity, whether or not such
party is the surviving entity of such transaction, unless
immediately after such consolidation or merger shareholders of
such party prior to the transaction continue to own more than
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] of the outstanding shares of
stock entitled to vote for the election of directors of such new
or surviving entity, or (iii) a party sells, assigns or otherwise
transfers all or substantially all of the business or assets of
such party relating to its semiconductor merchant market business
to a third party, the other party may terminate this Agreement
upon thirty (30) days' advance written notice to such party,
provided, in each case, that the terminating party must exercise
such right no later than one (1) year after receiving written
notice from the other party of such transaction.
Section 9.3. Effect of Termination.
(a) Except as otherwise provided in this Section
9.3, all rights and obligations of the parties hereunder shall
cease upon termination or expiration of this Agreement, with the
exception of the rights and obligations of the parties under
Articles 2, 4, 6, 7, 8, 9 and 10 and Sections 3.3 and 3.5, which
shall survive termination or expiration of this Agreement.
(b) In the event of termination of this Agreement
pursuant to Section 9.1, the licenses granted by a party under
Article 3 or any sublicenses granted by a party under Article 5,
including the modification pursuant to Section 3.3, shall survive
such termination of this Agreement with respect to any IPR
licensed as of the date of such termination of this Agreement
until expiration of such IPR. Should any of the events described
in clauses (i) through (iii) of Section 9.2(c) ("Change of
Control") occur with respect to a party during the period in
which license rights are surviving pursuant to this Section
9.3(b), the other party shall have the right to exercise the
rights of a Terminating Party as described in Sections 9.3(c) and
(d), and the rights of the parties shall thereafter be as set
forth in Sections 9.3(c) and (d) rather than this Section 9.3(b).
(c) If a party (the "Terminating Party")
terminates this Agreement pursuant to Section 9.2, the licenses
granted by the Terminating Party to the other party (the
"Terminated Party") under Article 3, or any sublicenses granted
by the Terminated Party under Article 5, shall survive such
termination with respect to IPR licensed as of the date of such
termination of this Agreement until expiration of such IPR,
except that with respect to Patents such post-termination
licenses and sublicenses shall be limited solely to (i)
Incorporated Products and Licensed Products being made or have
made and sold by the Terminated Party and its Subsidiaries
sublicensed hereunder at the time of such termination and
modifications thereof that do not add functionality ("Existing
Products") and (ii) process Patents licensed at the time of such
termination ("Existing Process Patents"), whether such Existing
Process Patents are used in the manufacture of Existing Products
16
<PAGE> 19
or other Incorporated Products or Licensed Products, but subject
in any event to the requirements of Section 9.3(d).
(d) If a Change of Control occurs with respect to
the Terminated Party, whether in connection with termination of
this Agreement or thereafter:
(i) beginning on the date of such Change of
Control, the licenses granted by the Terminating Party to the
Terminated Party under Article 3, or any sublicenses granted by
the Terminated Party under Article 5, with respect to Patents
shall be limited solely to manufacture and sale of Existing
Products and (notwithstanding Section 9.3 (c)(ii)) use of
Existing Process Patents to make or have made only Existing
Products, in each case only in the operations of the Terminated
Party as such operations existed at the time of such Change of
Control, and
(ii) such licenses or sublicenses shall
terminate on the date of such Change of Control or five years
after termination of this Agreement (whichever is later), unless
(and only for so long as) the Terminating Party, its Subsidiaries
sublicensed hereunder and their customers have a world-wide,
royalty-free and non-exclusive immunity from suit, damages and
claims under all patents and patent applications of the
Terminated Party and the third party that, directly or
indirectly, controls the Terminated Party relating to Licensed
Products or Incorporated Products.
(e) Upon termination of this Agreement by the
Terminating Party pursuant to Section 9.2, the licenses granted
by the Terminated Party to the Terminating Party under Article 3,
or any sublicenses granted by the Terminating Party under
Article 5, shall survive such termination of this Agreement with
respect to any IPR licensed as of such termination until
expiration of such IPR, as if such termination had occurred as
described in Sections 9.1 and 9.3(b), except that with respect to
Patents such post-termination licenses and sublicenses shall be
subject to the requirements of Section 9.3(f).
(f) If a Change of Control occurs with respect to
the Terminating Party, whether in connection with termination of
this Agreement or thereafter:
(i) beginning on the date of such Change
of Control, the licenses granted by the Terminated Party to the
Terminating Party under Article 3, or any sublicenses granted by
the Terminating Party under Article 5, with respect to Patents
shall be limited solely to manufacture and sale of Existing
Products and use of Existing Process Patents to make or have made
only Existing Products, in each case only in the operations of
the Terminating Party as such operations existed at the time of
such Change of Control, and
(ii) such licenses or sublicenses shall
terminate on the date of such Change of Control or five years
after termination of this Agreement (whichever is later), unless
17
<PAGE> 20
(and only for so long as) the Terminated Party, its Subsidiaries
sublicensed hereunder and their customers have a world-wide,
royalty-free and non-exclusive immunity from suit, damages and
claims under all patents and patent applications of the
Terminating Party and the third party that, directly or
indirectly, controls the Terminating Party relating to Licensed
Products or Incorporated Products.
Article 10. MISCELLANEOUS.
Section 10.1. Force Majeure. Neither party shall
be liable for failure to perform, in whole or in material part,
its obligations under this Agreement if such failure is caused by
any event or condition not existing as of the date of this
Agreement and not reasonably within the control of the affected
party, including, without limitation, by fire, flood, typhoon,
earthquake, explosion, strikes, labor troubles or other
industrial disturbances, unavoidable accidents, war (declared or
undeclared), acts of terrorism, sabotage, embargoes, blockage,
acts of Governmental Authorities, riots, insurrections, or any
other cause beyond the control of the parties; provided, that the
affected party promptly notifies the other party of the
occurrence of the event of force majeure and takes all reasonable
steps necessary to resume performance of its obligations so
interfered with.
Section 10.2. Assignment. Neither this Agreement
nor any of the rights and obligations created hereunder may be
assigned, transferred, pledged, or otherwise encumbered or
disposed of, in whole or in part, whether voluntary or by
operation of law, or otherwise, by either party without the prior
written consent of the other party. This Agreement shall inure
to the benefit of and be binding upon the parties' permitted
successors and assigns.
Section 10.3. Notices. All notices and
communications required, permitted or made hereunder or in
connection herewith shall be in writing and shall be mailed by
first class, registered or certified air mail, postage prepaid,
or otherwise delivered by hand or by messenger, or by recognized
courier service (with written receipt confirming delivery),
addressed:
(a) If to FUJITSU, to:
Mail or Hand Delivery:
FUJITSU LIMITED
1015 Kamikodanaka, Nakahara-ku
Kawasaki-shi 211, JAPAN
Attn: Masaichi Shinoda
General Manager
Business Development Division
Electronic Devices
with a copy to:
18
<PAGE> 21
Mail or Hand Delivery:
FUJITSU LIMITED
Marunouchi Center Bldg., 6-1
Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, JAPAN
Attn: Gen Iseki
General Manager, Legal Division
(b) If to AMD, to:
Mail:
Mikio Ishimaru, Esq.
Director of Technology Law
Advanced Micro Devices, Inc., MS 68
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Hand Delivery:
3625 Peterson Way
Santa Clara, CA 95054
U.S.A.
with a copy to:
Mail:
Senior Vice President, Operations
Advanced Micro Devices, Inc.
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Attn: Gene Conner
Hand Delivery:
915 DeGuigne Drive
Sunnyvale, CA 94086
U.S.A.
Each such notice or other communication shall for all
purposes hereunder be treated as effective or as having been
given as follows: (i) if delivered in person, when delivered;
(ii) if sent by airmail, at the earlier of its receipt or at
5 pm, local time of the recipient, on the seventh day after
deposit in a regularly maintained receptacle for the deposition
of airmail; and (iii) if sent by recognized courier service, on
the date shown in the written confirmation of delivery issued by
such delivery service. Either party may change the address
and/or addressee(s) to whom notice must be given by giving
appropriate written notice at least seven (7) days prior to the
date the change becomes effective.
19
<PAGE> 22
Section 10.4 Export Control. Without in any way
limiting the provisions of this Agreement, each of the parties
hereto agrees that no products, items, commodities or technical
data or information obtained from a party hereto nor any direct
product of such technical data or information is intended to or
shall be exported or reexported, directly or indirectly, to any
destination restricted or prohibited by Applicable Law without
necessary authorization by the Governmental Authorities,
including (without limitation) the Japanese Ministry of
International Trade and Industry, the United States Bureau of
Export Administration (the "BEA") or other Governmental
Authorities of the United States with jurisdiction with respect
to export matters. Without limiting the generality of the
foregoing, each party hereto agrees that it will not, without
authorization from the Office of Export Licensing of the BEA,
knowingly export or reexport to a destination outside of the
United States General License GTDR technical data or information
of United States origin subject to this Agreement, or the direct
product thereof, or the product of a plant or major component of
a plant that is the direct product thereof, without first
providing any applicable export assurances to the exporting
party.
Section 10.5. Arbitration.
(a) Any and all disputes arising under or
affecting this Agreement shall be resolved exclusively by
confidential arbitration pursuant to the rules of the Japan
Commercial Arbitration Association in Tokyo, Japan, or such other
location as may be agreed between the parties; provided, however,
that the arbitrators shall be empowered to hold hearings at other
locations within and without Japan. Each of the parties shall
designate one arbitrator and the two arbitrators so designated
shall select the third arbitrator. Arbitration proceedings shall
be conducted in English with simultaneous translation into
Japanese. The judgment upon award of the arbitrators shall be
final and binding and may be enforced in any court of competent
jurisdiction in the United States or Japan, and each of the
parties hereto unconditionally submits to the jurisdiction of
such court for the purpose of any proceeding seeking such
enforcement. Subject only to the provision of Applicable Law,
the procedure described in this Section 10.5 shall be the
exclusive means of resolving disputes arising under or affecting
this Agreement.
(b) All papers, documents, or evidence, whether
written or oral, filed with or presented to the panel of
arbitrators shall be deemed by the parties and by the arbitrators
to be Confidential Information. No party or arbitrator shall
disclose in whole or in part to any other person any Confidential
Information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist
counsel in the arbitration or preparation for arbitration of the
dispute. Confidential Information may be disclosed (i) to
attorneys, (ii) to parties, and (iii) to outside experts
requested by either party's counsel to furnish technical or
20
<PAGE> 23
expert services or to give testimony at the arbitration
proceedings, subject, in the case of such experts, to execution
of a legally binding written statement that such expert is fully
familiar with the terms of this section, agrees to comply with
the confidentiality terms of this section, and will not use any
Confidential Information disclosed to such expert for personal or
business advantage.
Section 10.6. Entire Agreement. This Agreement
and the attachments hereto embody the entire agreement and
understanding between the parties with respect to the subject
matter hereof, superseding all previous communications,
agreements and understandings, whether written or oral. Neither
party has relied upon any representation or warranty of the other
party except as expressly set forth herein.
Section 10.7. Modification. This Agreement may
not be modified or amended, in whole or part, except by a writing
executed by duly authorized representatives of both parties.
Section 10.8. Announcement. The parties may
announce the existence of the parties' relationship and this
Agreement at a time and in a form to be mutually determined.
Neither party shall unreasonably withhold its consent to a time
proposed by the other party.
Section 10.9. Severability. If any term or
provision of this Agreement shall be determined to be invalid or
unenforceable under Applicable Law, such provision shall be
deemed severed from this Agreement, and a reasonable valid
provision to be mutually agreed upon shall be substituted. In
the event that no reasonable valid provision can be so
substituted, the remaining provisions of this Agreement shall
remain in full force and effect, and shall be construed and
interpreted in a manner that corresponds as far as possible with
the intentions of the parties as expressed in this Agreement.
Section 10.10. No Waiver. Except to the extent
that a party hereto may have otherwise agreed in writing, no
waiver by that party of any condition of this Agreement or breach
by the other party of any of its obligations or representations
hereunder shall be deemed to be a waiver of any other condition
or subsequent or prior breach of the same or any other obligation
or representation by the other party, nor shall any forbearance
by the first party to seek a remedy for any noncompliance or
breach by the other party be deemed to be a waiver by the first
party of its rights and remedies with respect to such
noncompliance or breach.
Section 10.11. Nature of Rights. Each party
shall have the right to the other party's IPR licensed under this
Agreement when created, developed or invented, regardless of
whether physically delivered to such party. All rights and
licenses granted under or pursuant to this Agreement by a party
("licensor party") to the other party ("licensee party") are, for
purposes of Section 365(n) of the U.S. Bankruptcy Code (the
"Bankruptcy Code"), licenses of "intellectual property" within
21
<PAGE> 24
the scope of Section 101 of the Bankruptcy Code. The parties
agree that the licensee party, as a licensee of such rights under
this Agreement, shall retain and may fully exercise all of its
rights and elections under the Bankruptcy Code. The parties
further agree that, in the event of the commencement of a
bankruptcy or insolvency proceeding by or against the licensor
party, the licensee party shall be entitled to a complete
duplicate of (and complete access to) any such intellectual
property and all embodiments thereof. If not already in the
licensee party's possession, the licensee party has the right to
immediate delivery of such intellectual property and embodiments
upon written request of the licensee party (i) upon any such
commencement of bankruptcy proceedings, unless the licensor party
or its representative or trustee elects to continue to perform
all of its obligations under this Agreement, or (ii) if not
delivered under clause (i) above, upon the rejection of this
Agreement by or on behalf of the licensor party.
Section 10.12. Tangible Property. The parties
agree that the tangible portion of the property delivered and to
be delivered by AMD to Fujitsu is valued at [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] and by Fujitsu to AMD is valued at
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
Section 10.13. Governing Law. The validity,
construction, performance and enforceability of this Agreement
shall be governed in all respects by the laws of the State of
California, U.S.A.
Section 10.14. Language. This Agreement and the
attachments hereto are in the English language, which language
shall be controlling in all respects.
Section 10.15. No Agency or Partnership. This
Agreement shall not constitute an appointment of either party as
the legal representative or agent of the other party, nor shall
either party have any right or authority to assume, create or
incur in any manner any obligation or other liability of any
kind, express or implied, against, in the name or on behalf of,
the other party. Nothing herein or in the transactions
contemplated by this Agreement shall be construed as, or deemed
to be, the formation of a partnership, association, joint venture
or similar entity by or among the parties hereto.
Section 10.16. Headings. The section and other
headings contained in this Agreement are for convenience of
reference only and shall not be deemed to be a part of this
Agreement or to affect the meaning or interpretation of this
Agreement.
22
<PAGE> 25
Section 10.17. Counterparts. This Agreement may
be executed in counterparts, each of which shall be deemed an
original, and all of which shall be deemed to constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives
on the date set forth above.
ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED
/s/ Gene Conner /s/ Hikotara Masunaga
- - ----------------------------- -----------------------------
By: Gene Conner By: Hikotaro Masunaga
Title: Senior Vice President, Title: Managing Director
Operations
23
<PAGE> 26
ATTACHMENT A
TO
TECHNOLOGY CROSS-LICENSE AGREEMENT
FUJITSU AFFILIATES
1. Amdahl Corporation
2. HaL Computer Corporation
3. Such other companies (in which Fujitsu has not less
than a five percent (5%) stock ownership) as may be requested by
Fujitsu and approved (which approval shall not be unreasonably
withheld) by AMD for addition to this Attachment A.
AMD AFFILIATES
1. Such companies (in which AMD has not less than a five
percent (5%) stock ownership) as may be requested by AMD and
approved (which approval shall not be unreasonably withheld) by
Fujitsu for addition to this Attachment A.
24
<PAGE> 27
ATTACHMENT B
TO
TECHNOLOGY CROSS-LICENSE AGREEMENT
Each party is licensed under Section 3.1 or 3.2:
1. With regard to NVMs:
(i) Fujitsu: to sell, lease, or otherwise dispose of NVMs in the
countries [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION] Ireland, the United Kingdom,
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
(ii) AMD: to sell, lease, or otherwise dispose of NVMs in the
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] countries in Europe (except
Ireland and the United Kingdom) [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(iii) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION].
(iv) Each party: to assemble, package and test, [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] and to use, NVMs anywhere in the world.
2. With regard to Pilot Products:
(i) Each party: to make [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] Pilot
Products, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION] and to use such Pilot
Products, anywhere in the world.
(ii) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION].
3. With regard to Memory Cards:
(i) Each party: to make [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and to
use Memory Cards anywhere in the world.
(ii) Each party: to sell, lease or otherwise dispose of Memory
Cards as provided for NVMs in 1. above or 4. below. [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION].
4. With regard to the European Community ("EC") (and, if the
European Economic Area ("EEA") Agreement comes into effect, the EEA):
Each party: commencing five years after the first commercial sale
of each new NVM or Memory Card in the EC (and, if the EEA Agreement
comes into effect, the EEA), and notwithstanding anything else in this
25
<PAGE> 28
Attachment B, to sell, lease or otherwise dispose of such NVM or
Memory Card anywhere in the EC (and, if the EEA Agreement comes into
effect, the EEA). Notwithstanding the foregoing or anything else in
this Attachment B, (i) for the first five years from such first
commercial sale, each party may solicit orders, advertise, set up or
appoint distributors or sales representatives, establish warehouses,
and otherwise engage in active sales and marketing for such NVM or
Memory Card only in the countries of the EC (and, if the EEA Agreement
comes into effect, the EEA) specified for such party in 1.(i) or
1.(ii), as applicable, above, and (ii) at any time, the unsolicited
sale, lease or other disposition of NVMs or Memory Cards shall be
permitted between Member States of the EC (and, if the EEA Agreement
comes into effect, the EEA).
26
<PAGE> 1
EXHIBIT 10.27(c)
AMD INVESTMENT AGREEMENT
ADVANCED MICRO DEVICES, INC.
investing in
FUJITSU LIMITED
March 26, 1993
Confidential portions of this document have been deleted and
filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
<PAGE> 2
AMD INVESTMENT AGREEMENT
TABLE OF CONTENTS
<TABLE>
<S> <C>
1.1 Purchases of Fujitsu Securities . . . . . . . . . . . . . 1
1.2 Timing of Purchase. . . . . . . . . . . . . . . . . . . . 2
1.3 Timing of Permitted Resales or Transfers. . . . . . . . . 2
1.4 Information on Issuances. . . . . . . . . . . . . . . . . 2
1.5 Communications. . . . . . . . . . . . . . . . . . . . . . 3
1.6 Costs and Expenses. . . . . . . . . . . . . . . . . . . . 4
1.7 Successors and Assigns. . . . . . . . . . . . . . . . . . 5
1.8 Entire Agreement; Modification. . . . . . . . . . . . . . 5
1.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 5
1.10 Severability. . . . . . . . . . . . . . . . . . . . . . . 5
1.11 Cooperation; Best Efforts . . . . . . . . . . . . . . . . 6
1.12 Governing Law, Language . . . . . . . . . . . . . . . . . 6
1.13 Dispute Resolution. . . . . . . . . . . . . . . . . . . . 6
1.14 Termination . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
i
<PAGE> 3
AMD INVESTMENT AGREEMENT
This AMD INVESTMENT AGREEMENT (the "Agreement") is made this
26th day of March, 1993 between FUJITSU LIMITED, a Japanese stock
company or kabushiki kaisha ("FUJITSU") and ADVANCED MICRO
DEVICES, INC., a Delaware corporation ("AMD").
AMD and FUJITSU have entered into a Memorandum of
Understanding dated July 13, 1992 regarding (a) the formation,
funding and implementation of a joint venture between AMD and
FUJITSU to manufacture integrated circuits (the "Joint Venture")
and (b) the purchase by each party of common stock of the other
party and/or its subsidiaries.
1.1 Purchases of Fujitsu Securities. Upon the terms and
conditions set forth in this Agreement, AMD shall purchase bonds
and/or shares of the common stock of FUJITSU having a total price
of Yen 1,200,000,000 (the "Fujitsu
Securities"). All Fujitsu Securities shall be purchased in the
open market in Japan, unless otherwise agreed between the
parties. The selection between the purchase of bonds, or the
purchase of equity securities such as common stock or bonds
convertible into common stock, shall be initially at FUJITSU'S
discretion, provided that AMD shall have the sole discretion to
vary such selection to the extent necessary for the Joint Venture
to be or not to be, at AMD's discretion, a "controlled foreign
corporation" of AMD (within the meaning of Chapter 1, Subchapter
N, Part III, Subpart F of the Internal Revenue Code of 1986, as
amended), with a reasonable margin to ensure that AMD's objective
is achieved. To the extent consistent with this objective, at
FUJITSU's election the parties will negotiate the terms under
which AMD shall purchase publicly traded bonds issued by FUJITSU
1
<PAGE> 4
and convertible into common stock of FUJITSU, instead of
purchasing common stock.
1.2 Timing of Purchase. FUJITSU shall provide written
notice to AMD regarding the extent to which FUJITSU elects to
exercise its option to request AMD purchase convertible bonds
rather than Fujitsu common stock within ten (10) days after the
Effective Date of the Joint Venture Agreement between FUJITSU and
AMD. AMD shall purchase Fujitsu Securities within thirty (30)
days after receipt of such notice.
1.3 Timing of Permitted Resales or Transfers. Unless AMD
enters into a firm commitment to replace the FUJITSU Securities
purchased under Section 1.1 with FUJITSU Securities of equal
value within 30 days after disposition, the FUJITSU Securities
purchased under Section 1.1 may not be resold, hypothecated or
transferred except in the following manner. Up to [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] of the Fujitsu Securities purchased in
accordance with the Agreement may be resold or transferred at any
time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation
of such purchase. All remaining Fujitsu Securities may be
resold or transferred at any time after [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of the consummation of such purchase.
1.4 Information on Issuances. FUJITSU shall, to the extent
legally permissible (i) provide AMD with a statement, on December
1 of each year during the term of the Joint Venture Agreement, of
the number and type of voting shares and convertible debt of
FUJITSU outstanding as of a date within the preceding 45 days,
and (ii) provide AMD with at least seven days advance notice
2
<PAGE> 5
prior to the issuance of additional shares (other than shares
issued pursuant to conversion of debt) which would cause the
number of FUJITSU voting shares outstanding at December 31 of
such year to be in excess of 110% of the number of shares
specified in FUJITSU's December 1 statement to AMD.
1.5 Communications. All notices and communications
required, made or permitted hereunder or in connection herewith
shall be in writing and shall be delivered by hand, or by
messenger, or by recognized courier service (with written receipt
confirming delivery), or by postage prepaid registered or
certified airmail (return receipt requested), and addressed:
(a) If to FUJITSU, to:
FUJITSU LIMITED
Furukawa Sogo Building
6-1, Marunouchi 2-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Mr. Hirohiko Kondo
General Manager
Electronic Devices Marketing Division
with a copy to
FUJITSU LIMITED
Marunouchi Center Bldg.
6-1, Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Mr. Gen Iseki
General Manager
Legal Division
3
<PAGE> 6
(b) If to AMD, to:
(Mail)
ADVANCED MICRO DEVICES, INC.
P.O. Box 3453
Sunnyvale, CA 94088-3453
Attn: Marvin D. Burkett
Senior Vice President and
Chief Financial Officer
(Hand Delivery)
915 De Guigne Drive
Sunnyvale, CA
Attn: Marvin D. Burkett
Senior Vice President and
Chief Financial Officer
With a copy to:
(same addresses)
Attn: Thomas W. Armstrong, Esq.
Vice President, General Counsel and
Secretary
Each such notice or other communication shall for all
purposes hereunder be treated as effective or as having been
given as follows: (i) if delivered in person, when delivered
(ii) if sent by airmail, at the earlier of its receipt or at 5
p.m. local time of the recipient, on the seventh (7th) day after
deposit in a regularly maintained receptacle for the deposit of
airmail, and (iii) if sent by a recognized courier service, on
the date shown in the written confirmation of delivery issued by
such courier service. Either party may change the address(es)
and/or addressee(s) to whom notice must be given by giving notice
pursuant to this section at least seven days prior to the date
the change becomes effective.
1.6 Costs and Expenses. FUJITSU and AMD each shall bear
their own costs and expenses of the transactions contemplated
hereby.
4
<PAGE> 7
1.7 Successors and Assigns. This Agreement shall inure to
the benefit of, and be binding on, the parties hereto and their
respective successors and assigns. This Agreement may not be
assigned by either party without the prior written consent of the
other party.
1.8 Entire Agreement; Modification. This Agreement and all
exhibits hereto and other documents delivered pursuant hereto
constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof, and
neither party shall be liable or bound to the other party in any
manner by any warranties, representations or covenants except as
specifically set forth herein. Except as expressly provided
herein, neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written
instrument signed by a corporate officer of the party against
whom enforcement of any such amendment, waiver, discharge or
termination is sought.
1.9 Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by fewer
than all of the parties, each of which shall be enforceable
against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.
1.10 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision;
provided, that no such severability shall be effective if it
materially changes the economic impact of this Agreement on any
party.
5
<PAGE> 8
1.11 Cooperation; Best Efforts. The parties agree to
cooperate and to use their best efforts to consummate the
purchase of Fujitsu Shares authorized by this Agreement. Such
cooperation shall include, but not be limited to, the diligent
and prompt filing and pursuit of all governmental consents,
reviews or clearances required by law to be obtained by either
party with respect to any or all purchases under this Agreement.
1.12 Governing Law, Language. This Agreement shall be
governed in all respects by the laws of Japan. This Agreement is
in the English language only, which shall be controlling in all
respects. No translations, if any, of this Agreement into
Japanese or any other language shall be of any force or effect in
the interpretation of this Agreement as to either party hereto or
in any determination of the interest of either of such parties.
1.13 Dispute Resolution.
(a) Any and all disputes arising under or
affecting this Agreement or any other agreement to be executed in
accordance herewith shall be resolved, except as expressly
provided otherwise in such other agreement, exclusively by
confidential arbitration pursuant to the rules of the Japan
Commercial Arbitration Association in Tokyo, Japan, or such other
location as may be agreed between the parties; provided, however,
that the arbitrators shall be empowered to hold hearings at other
locations within and without Japan. Each of the parties shall
designate one arbitrator and the two arbitrators so designated
shall select the third arbitrator. Arbitration proceedings shall
be conducted in English with simultaneous translation into
Japanese. Among the remedies available to them, the arbitrators
shall be authorized to require specific performance of provisions
of this Agreement. The judgment upon award of the arbitrators
shall be final and binding and may be enforced in any court of
6
<PAGE> 9
competent jurisdiction in the United States or Japan, and each of
the parties hereto unconditionally submits to the jurisdiction of
such court for the purpose of any proceeding seeking such
enforcement. Subject only to the provisions of Applicable Law
and, except as aforesaid, the procedure described in this Section
1.13 shall be the exclusive means of resolving disputes arising
under or affecting this Agreement and all other agreements to be
executed in accordance herewith.
(b) All papers, documents or evidence, whether
written or oral, filed with or presented to the panel of
arbitrators shall be deemed by the parties and by the arbitrators
to be confidential information. No party or arbitrator shall
disclose in whole or in part to any other person any confidential
information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist
counsel in the arbitration or preparation for arbitration of the
dispute. Confidential information may be disclosed (i) to
attorneys, (ii) to parties, and (iii) to outside experts
requested by either party's counsel to furnish technical or
expert services or to give testimony at the arbitration
proceedings, subject, in the case of such experts, to execution
of a legally binding written statement that such expert agrees to
comply with the confidentiality terms of this Section, and that
such expert will not use any confidential information disclosed
to such expert for personal or business advantage.
1.14 Termination. If either party transfers its shares in
the Joint Venture pursuant to the Joint venture Agreement, or is
a Triggering Party under the Joint Venture Agreement, the other
party shall have the right to terminate this Agreement. This
agreement may be terminated by either party pursuant to the
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<PAGE> 10
rights given it under subsection 7.5.A of the Joint Venture
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers
as of the day and year first above written.
FUJITSU LIMITED
By: /s/ HIKOTARO MASUNAGA
________________________________
Hikotaro Masunaga
ADVANCED MICRO DEVICES, INC.
By: /s/ MARVIN D. BURKETT
_________________________________
Marvin D. Burkett
Chief Financial Officer
8
<PAGE> 1
EXHIBIT 10.27(d)
FUJITSU INVESTMENT AGREEMENT
INVESTMENT AGREEMENT
of
FUJITSU LIMITED
investing in
ADVANCED MICRO DEVICES, INC.
March 26, 1993
Confidential portions of this document have been deleted and
filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
<PAGE> 2
FUJITSU INVESTMENT AGREEMENT
FUJITSU LIMITED
investing in
ADVANCED MICRO DEVICES, INC.
Table of Contents
<TABLE>
<S> <C>
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PURCHASES AND SALES OF AMD SHARES. . . . . . . . . . . . . . . 1
1.1 Purchase of AMD Shares . . . . . . . . . . . . . . . 1
1.2 Timing of Purchases. . . . . . . . . . . . . . . . . 2
1.3 Manner of Sale . . . . . . . . . . . . . . . . . . . 3
1.4 Purchase Price(s) of AMD Shares; Limitation on
Total Purchase Price and Total Number of AMD
Shares . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Suspension of Obligation to Purchase.. . . . . . . . 5
RESTRICTIONS ON RESALE AND VOTING OF AMD SHARES. . . . . . . . 5
2.1 No Rights of Registration, Repurchase, First
Refusal or Redemption. . . . . . . . . . . . . . . . 5
2.2 Restricted Nature of AMD Shares; Legend; Manner and
Timing of Permitted Resales or Transfers . . . . . . 6
REPRESENTATIONS AND WARRANTIES OF THE PARTIES. . . . . . . . . 8
3.1 Representations and Warranties of AMD. . . . . . . . 8
3.2 Representations and Warranties of FUJITSU. . . . . . 8
CONDITIONS TO CLOSINGS OF PURCHASES OF AMD SHARES. . . . . . . 10
4.1 Conditions to AMD's Obligations. . . . . . . . . . . 10
4.2 Conditions to FUJITSU's Obligations. . . . . . . . . 11
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 12
5.1 Costs and Expenses. . . . . . . . . . . . . . . . . 12
5.2 Successors and Assigns. . . . . . . . . . . . . . . 12
5.3 Communications. . . . . . . . . . . . . . . . . . . 12
5.4 Entire Agreement; Modification. . . . . . . . . . . 14
5.5 Captions. . . . . . . . . . . . . . . . . . . . . . 14
5.6 Counterparts. . . . . . . . . . . . . . . . . . . . 15
5.7 Severability. . . . . . . . . . . . . . . . . . . . 15
5.8 Governing Law, Language . . . . . . . . . . . . . . 15
5.9 Notice and Correction of Breach . . . . . . . . . . 15
5.10 Dispute Resolution. . . . . . . . . . . . . . . . . 16
5.11 Termination . . . . . . . . . . . . . . . . . . . . 17
5.12 Cooperation; Best Efforts . . . . . . . . . . . . . 17
</TABLE>
i
<PAGE> 3
FUJITSU INVESTMENT AGREEMENT
This INVESTMENT AGREEMENT (the "Agreement") is made this
26th day of March, 1993 between FUJITSU LIMITED, a Japanese stock
company or kabushiki kaisha ("FUJITSU") and ADVANCED MICRO
DEVICES, INC., a Delaware corporation ("AMD").
RECITALS
WHEREAS, AMD and FUJITSU have entered into a Memorandum of
Understanding dated July 13, 1992 (the "MOU") regarding (a) the
formation, funding and implementation of a joint venture between
AMD and FUJITSU to manufacture integrated circuits and (b) the
purchase by each party of common stock of the other party and/or
its subsidiaries.
ARTICLE I
PURCHASES AND SALES OF AMD SHARES
1.1 Purchase of AMD Shares. Upon the terms and subject to the
conditions set forth in this Agreement, FUJITSU agrees to purchase from AMD,
and AMD agrees to sell to FUJITSU, up to Four Million Five Hundred Thousand
(4,500,000) shares (the "AMD Shares") of the $.01 par value common stock of
AMD (the "AMD Common Stock"); provided that FUJITSU will not be required to
purchase more than five percent (5%) of the issued and outstanding shares of
AMD common stock. The AMD Shares shall be purchased and sold in installments
as set forth in Section 1.2 below, and the exact number of AMD Shares to be
sold and purchased and the price or
2
<PAGE> 4
prices at which such AMD Shares shall be sold and purchased shall
be determined pursuant to Section 1.4 below.
1.2 Timing of Purchases. The AMD Shares shall be sold and purchased in
nine (9) installments, as follows: (i) an initial sale and purchase of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] shares (the "Initial Purchase") which shall be consummated
within thirty (30) business days following the Effective Date of the Joint
Venture Agreement, dated March 30, 1993, between the parties ("the Joint
Venture Effective Date"), as anticipated in the MOU, and (ii) eight (8)
additional sales and purchases of up to [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shares each
(collectively, the "Subsequent Purchases"), to be consummated by two (2) annual
purchases of such amount, the first such purchase to be consummated prior to
the last business day of the sixth (6th) month following the Joint Venture
Effective Date (the "First Subsequent Purchase") and the second annual purchase
to be consummated prior to the last business day of the twelfth (12th) month
following the Joint Venture Effective Date (the "Second Subsequent Purchase"),
with the Third through Eighth Subsequent Purchases being made in the same
manner as the First and Second Subsequent Purchases, i.e., prior to the last
business day of the eighteenth (18th), twenty-fourth (24th), thirtieth (30th),
thirty-sixth (36th), forty-second (42nd) and forty-eighth (48th) months,
respectively, following the Joint Venture Effective Date. Unless the parties
agree otherwise in writing, each of the purchases of AMD Shares authorized by
this Agreement shall be closed at the AMD main corporate offices, currently 915
DeGuigne Drive, Sunnyvale, California, at 9:00 a.m. local time on the date
designated herein for each purchase. If at the time or times scheduled for a
purchase of AMD Shares FUJITSU's financial
3
<PAGE> 5
condition is so constrained that it would, in the good faith judgement
of FUJITSU, be imprudent for such purchase to be closed on the scheduled date,
FUJITSU shall notify AMD not less than thirty (30) days prior to the date
scheduled for such purchase. If such notice is given, the parties will
negotiate in good faith to reschedule the closing in question, but the
determination of the purchase price for such closing shall not be affected by
any such rescheduling. Participation in such negotiations shall not affect the
obligations of FUJITSU to effect the aggregate purchases of AMD Shares pursuant
to this section. FUJITSU will not be in default under this Agreement, the
Joint Venture Agreement, or other agreements between the parties, as a result
of failing to meet the closing schedule in question, so long as the aggregate
delay in meeting the original schedule for such purchases (as set forth in this
section 1.2) does not exceed twelve (12) months.
1.3 Manner of Sale. The offer and sale of the AMD Shares to FUJITSU
shall not be registered under Section 4(2) of the Securities Act of 1933, as
amended (the "1933 Act"). The AMD Shares shall not involve a public offering,
but shall be issued pursuant to an exemption under Section 4(2) of the 1933
Act. The AMD Shares when issued in accordance with this Agreement shall be
deemed to be "restricted shares" within the meaning of Rule 144 under the 1933
Act, the resale of which shall comply with applicable provisions of Article II
of the Agreement. The parties agree to cooperate with respect to the closing
of each installment purchase and to deliver and execute all such records,
documents and instruments necessary or desirable to facilitate each such sale
and purchase as either party shall reasonably request.
4
<PAGE> 6
1.4 Purchase Price(s) of AMD Shares; Limitation on Total
Purchase Price and Total Number of AMD Shares. The purchase
price of each installment of the AMD Shares shall be payable in
United States dollars by wire transfer or otherwise as AMD shall
reasonably request, and: (i) for the Initial Purchase, shall be
equal to the number of AMD Shares acquired in the installment
times the average of the closing sales prices of AMD common stock
on the New York Stock Exchange for the sixty (60) trading days
ending on the Joint Venture Effective Date, and (ii) for the
First through Eighth Subsequent Purchases, the average of the
closing sales prices on the New York Exchange for the sixty (60)
trading days ending on the twentieth day of the month preceding
the month in which the purchase is scheduled, or if the Exchange
is not open for trading on such date, on the trading day
preceding such date. AMD shall provide FUJITSU with a
calculation of each such purchase price within three days
following the end of the relevant sixty-day period. Such
calculation shall be provided by facsimile, the numbers of which
shall be designated by Fujitsu in advance, as well as pursuant to
section 5.3 below. Notwithstanding the foregoing sentence,
FUJITSU shall not be required, except in its own discretion, to
pay for the AMD Shares acquired in the Initial Purchase and
Subsequent Purchases a total amount in excess of US$100,000,000
or an amount in excess of [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
in any twelve-month period. In the event the total purchase
price of the AMD Shares exceeds US$100,000,000 and FUJITSU elects
not to pay more than US$100,000,000 for the AMD Shares, the
5
<PAGE> 7
number of AMD Shares which AMD shall be required to deliver to
FUJITSU shall be reduced proportionately.
1.5 Suspension of Obligation to Purchase. FUJITSU and AMD
are contemporaneously executing a separate agreement providing
for the purchase of Common Stock or bonds of FUJITSU by AMD.
Further, FUJITSU and AMD are parties to a Joint Venture Agreement
pursuant to which each party agrees to advance funds to the joint
venture if the joint venture is unable to secure necessary
financing. If AMD does not make any such advance when required
to do so, FUJITSU's obligations to purchase shares of AMD stock
pursuant to this Agreement shall be suspended until AMD makes
such advances, and the purchase dates and corresponding time
periods used to calculate the purchase prices as specified in
sections 1.2 and 1.4 shall be extended by the number of months
that Fujitsu's purchase obligation was suspended.
ARTICLE II
RESTRICTIONS ON RESALE AND VOTING OF AMD SHARES
2.1 No Rights of Registration, Repurchase, First Refusal or
Redemption. FUJITSU shall have no right at any time to require
AMD to register or qualify the sale of any of the AMD Shares
under the 1933 Act or the securities laws of any state, country
or other jurisdiction, or to include the AMD Shares under any
other registration by AMD of its securities. AMD shall have no
obligation to repurchase the AMD Shares or, except as provided
herein, in any manner to cooperate or assist in the resale of the
AMD Shares by FUJITSU to any other party. The AMD Shares shall
not be subject to redemption by AMD, and AMD shall have no right
or obligation, commonly known as a "right of first refusal" or
"right of first offer," to acquire any of the AMD Shares either
6
<PAGE> 8
upon the terms and conditions first agreed upon by and between
FUJITSU and any other party or prior to any such agreement
relating to such terms and conditions.
2.2 Restricted Nature of AMD Shares; Legend; Manner and
Timing of Permitted Resales or Transfers.
(a) The AMD Shares shall be deemed to be "restricted
shares" within the meaning of Rule 144 under the 1933 Act, and
may not be resold, hypothecated, pledged, otherwise encumbered or
transferred by FUJITSU except as provided herein. In order to
assure compliance with this Agreement and with the 1933 Act and
regulations thereunder, AMD before delivering to FUJITSU
certificates representing the AMD Shares shall cause such
certificates to be legended with the following legend to indicate
the restrictions placed upon their resale or transfer:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS AS SET
FORTH IN AN AGREEMENT DATED MARCH 26, 1993, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF ADVANCED MICRO DEVICES, INC., AND MAY NOT
BE RESOLD PRIOR TO [DATE]*. THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE DEEMED TO
BE RESTRICTED SHARES FOR PURPOSES OF RULE 144
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO TRANSFER OF THESE SHARES MAY
BE MADE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, UNLESS
ADVANCED MICRO DEVICES HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO IT THAT
SUCH TRANSFER DOES NOT REQUIRE REGISTRATION
UNDER THE ACT.
(b) The AMD Shares shall not be resold or transferred
by FUJITSU except pursuant to a valid and effective registration
- - ----------
* [DATE] refers to the dates specified in 202(c), below
7
<PAGE> 9
thereof under the 1933 Act or an exemption from registration
which is available thereunder. AMD and/or its transfer agent
shall have the right to require, prior to resale or transfer
under any such exemption, that FUJITSU provide to AMD and for its
and/or its transfer agent's benefit an opinion of counsel, in
form and substance reasonably satisfactory to AMD, stating and
opining that registration is not required.
(c) Except as provided in subsections (d) and (e)
below, the AMD Shares may not be resold or transferred except in
the following manner. Up to [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
of the AMD Shares purchased in the Initial Purchase or any
Subsequent Purchase may be resold or transferred at any time
after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION] of the consummation of
such purchase. Up to an additional [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of such shares may be resold or transferred at any
time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation
of such purchase
(d) FUJITSU may tender or sell any of the AMD Shares
then owned by it, without restriction under this Agreement, in
the event of, and in accordance with the terms and conditions of,
(i) a tender or exchange offer for shares of common stock of AMD
commenced by AMD, or (ii) a tender, exchange or other offer for
such shares of common stock commenced by a third party and
approved by the Board of Directors of AMD.
(e) Except for the resales or other transfers
permitted by subsections (c) or (d) above, FUJITSU may not
8
<PAGE> 10
transfer any of the AMD Shares to any other person or entity
including an affiliate of FUJITSU, by gift or otherwise, without
the prior written consent of AMD. This restriction shall expire
on the earlier of [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], or
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
3.1 Representations and Warranties of AMD. Except as
provided in Section 4.2(b) hereof, AMD does not make and shall
not be required to make to FUJITSU any representations or
warranties of any kind in connection with its sale of the AMD
Shares, including but not limited to representations or
warranties regarding the AMD Shares or the financial condition or
results of operations of AMD.
3.2 Representations and Warranties of FUJITSU.
(a) Except as provided in this Section 3.2 and in
Section 4.1(a) hereof, FUJITSU does not make and shall not be
required to make to AMD any representations or warranties of any
kind in connection with its purchases of the AMD Shares.
(b) FUJITSU represents and warrants to AMD as follows:
(i) FUJITSU is and shall be as of the closing
of each of the Initial Purchase and the Subsequent Purchases an
"accredited investor" within the meaning of Rule 501(a)(3) under
the 1933 Act.
9
<PAGE> 11
(ii) FUJITSU is acquiring and will acquire the
AMD Shares for its own account for the purpose of investment and
not with a view to or for resale in connection with any
distribution thereof.
(iii) FUJITSU has such knowledge and experience
in financial and business matters as to be capable of evaluating
on its own the merits and risks of investment in the AMD Shares.
(iv) FUJITSU has had opportunity to ask
questions of and receive answers from AMD concerning the terms
and conditions of the offer and sale of the AMD Shares, and to
obtain all additional information from AMD which FUJITSU deems
necessary to verify the accuracy of the information contained in
the following, copies of which (including all exhibits filed with
or incorporated by reference therein except, at AMD's option, any
exhibit with respect to which confidential treatment has been
granted) FUJITSU acknowledges to have received from AMD:
(1) AMD's annual report on Form 10-K
filed with the Securities and Exchange Commission (the
"Commission") for its most recent fiscal year.
(2) AMD's filings with the Commission
on Forms 10-Q and 8-K since the filing of its report on Form 10-K
for the most recent fiscal year.
10
<PAGE> 12
ARTICLE IV
CONDITIONS TO CLOSINGS OF PURCHASES OF AMD SHARES
4.1 Conditions to AMD's Obligations. The obligations of
AMD to close the Initial Purchase and the Subsequent Purchases
shall be subject to the fulfillment of the following conditions,
any or all of which may be waived in writing by AMD:
(a) AMD shall have received from FUJITSU an officers'
certificate dated the date of closing in substantially the form
set forth in Exhibit A hereto, signed by an authorized
representative of FUJITSU who is at least department manager
management level ("bucho") or above.
(b) All required consents, clearances and permits of
any governmental entity applicable to the purchase shall have
been obtained and be in effect and not withdrawn, and all
applicable waiting periods shall have expired, including but not
limited to any consents or waiting periods required by the Hart-
Scott-Rodino Antitrust Improvements Act and Section 5021 of the
Omnibus Trade and Competitiveness Act of 1988 (50 U.S.C. App.
Section 2170) and regulations issued by the Department of the
Treasury thereunder.
(c) The Joint Venture Agreement shall have been
executed by the parties and be in full force and effect, and no
notice shall have been given by AMD to FUJITSU of any material
breach of this Agreement or the Joint Venture Agreement by
FUJITSU which shall not have been corrected to the reasonable
satisfaction of AMD.
(d) The agreement relating to the purchase of equity
of FUJITSU by AMD shall have been executed by the parties
11
<PAGE> 13
thereto, and no notice shall have been given by AMD to FUJITSU of
any material breach thereof, that shall not have been corrected
to the reasonable satisfaction of AMD.
4.2 Conditions to FUJITSU's Obligations. The obligations
of FUJITSU to close the Initial Purchase and the Subsequent
Purchases shall be subject to the fulfillment of the following
conditions, any or all of which may be waived in writing by
FUJITSU:
(a) AMD shall continue to be listed on the New York
Stock Exchange, NASDAQ, or the American Stock Exchange, or any
successor of such exchange recognized by the U.S. Securities and
Exchange Commission.
(b) FUJITSU shall have received from AMD an officers'
certificate dated the date of closing in substantially the form
set forth in Exhibit B hereto, signed by an authorized
representative of AMD.
(c) All required consents, clearances and permits of
any governmental entity applicable to the purchase shall have
been obtained and be in effect and not withdrawn and all
applicable waiting periods shall have expired, including but not
limited to any consents or waiting periods required by the
Hart-Scott-Rodino Antitrust Improvements Act and Section 5021 of
the Omnibus Trade and Competitiveness Act of 1988 (50 U.S.C. App.
Section 2170) and regulations issued by the Department of the Treasury
thereunder.
(d) The Joint Venture Agreement shall have been
executed by the parties and be in full force and effect, and no
12
<PAGE> 14
notice shall have been given by FUJITSU to AMD of any material
breach of this Agreement or the Joint Venture Agreement by AMD
which shall not have been corrected to the reasonable
satisfaction of FUJITSU.
(e) The agreement relating to the purchase of equity
of FUJITSU by AMD shall have been executed by the parties
thereto, and no notice shall have been given by FUJITSU to AMD of
any material breach thereof that shall not have been corrected to
the reasonable satisfaction of FUJITSU.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Costs and Expenses. AMD and FUJITSU each shall bear
their own costs and expenses incurred with respect to this
Agreement, including but not limited to the costs and expenses of
each installment purchase of AMD Shares contemplated hereby.
5.2 Successors and Assigns. This Agreement shall inure to
the benefit of, and be binding upon, the parties hereto and their
respective successors and assigns. This Agreement may not be
assigned by either party without the prior written consent of the
other party.
5.3 Communications. All notices and communications
required, made or permitted hereunder shall be in writing and
shall be delivered by hand, or by messenger, or by recognized
courier service (with written receipt confirming delivery), or by
postage prepaid registered or certified airmail (return receipt
requested), addressed:
13
<PAGE> 15
(a) If to FUJITSU, to:
FUJITSU LIMITED
Furukawa Sogo Bldg.
6-1, Marunouchi 2-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Hirohiko Kondo
General Manager,
Electronic Devices Marketing Division
with a copy to:
FUJITSU LIMITED
Marunouchi Center Bldg.
6-1, Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Gen Iseki
General Manager, Legal Division
(b) If to AMD, to:
(Mail)
ADVANCED MICRO DEVICES, INC.
P.O. Box 3453
Sunnyvale, CA 94088-3453
Attn: Marvin D. Burkett
Senior Vice President,
Chief Financial Officer
(Hand Delivery)
ADVANCED MICRO DEVICES, INC.
915 DeGuigne Drive
Sunnyvale, CA
With a copy to:
(same addresses as above)
Attn: Thomas W. Armstrong, Esq.
Vice President, General Counsel and
Secretary
14
<PAGE> 16
Each such notice or other communication shall for all
purposes hereunder be treated as effective or as having been
given as follows: (i) if delivered in person, when delivered;
(ii) if sent by airmail, at the earlier of its receipt or at 5 pm
local time of the recipient, on the seventh day after deposit in
a regularly maintained receptacle for the deposit of airmail; and
(iii) if sent by recognized courier service, on the date shown in
the written confirmation of delivery issued by such delivery
service. Either party may change the addresses and/or addressees
to whom notice must be given by giving notice pursuant to this
section at least seven days prior to the date the change becomes
effective.
5.4 Entire Agreement; Modification. This Agreement and
all exhibits hereto and other documents delivered pursuant hereto
constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof, and
neither party shall be liable or bound to the other party in any
manner by any warranties, representations or covenants except as
specifically set forth herein. Except as expressly provided
herein, neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written
instrument signed by a corporate officer of the party against
whom enforcement of any such amendment, waiver, discharge or
termination is sought.
5.5 Captions. Headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall not be relied upon to limit the construction of this
Agreement.
15
<PAGE> 17
5.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by fewer
than all of the parties, each of which shall be enforceable
against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.
5.7 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent juris-
diction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision;
provided, that no such severability shall be effective if it
materially changes the economic impact of this Agreement on any
party.
5.8 Governing Law, Language. This Agreement shall be
governed in all respects by the laws of the United States and the
State of Delaware. This Agreement is in the English language
only, which shall be controlling in all respects. No transla-
tion, if any, of this Agreement into Japanese or any other
language shall be of any force or effect in the interpretation of
this Agreement as to either party hereto or in any determination
of the intent of either of such parties.
5.9 Notice and Correction of Breach. Either party
believing that the other party has materially breached this
Agreement, prior to institution of any proceeding for specific
performance pursuant to Section 5.10, shall give notice to the
other party specifying the nature of the breach and requesting
that it be corrected. If within sixty (60) days after such
notice is given the accused party has not to the satisfaction of
the accusing party responded and materially commenced or
completed the correction of the breach asserted, the party giving
16
<PAGE> 18
notice may take such other action permitted to it by this
Agreement or in law or equity.
5.10 Dispute Resolution.
(a) Any and all disputes arising under or
affecting this Agreement or any other agreement to be executed in
accordance herewith shall be resolved, except as expressly
provided otherwise in such other agreement, exclusively by
confidential arbitration pursuant to the rules of the Japan
Commercial Arbitration Association in Tokyo, Japan, or such other
location as may be agreed between the parties; provided, however,
that the arbitrators shall be empowered to hold hearings at other
locations within and without Japan. Each of the parties shall
designate one arbitrator and the two arbitrators so designated
shall select the third arbitrator. Arbitration proceedings shall
be conducted in English with simultaneous translation into
Japanese. Among the remedies available to them, the arbitrators
shall be authorized to require specific performance of provisions
of this Agreement. The judgment upon award of the arbitrators
shall be final and binding and may be enforced in any court of
competent jurisdiction in the United States or Japan, and each of
the parties hereto unconditionally submits to the jurisdiction of
such court for the purpose of any proceeding seeking such
enforcement. Subject only to the provisions of Applicable Law
and, except as aforesaid, the procedure described in this Section
5.10 shall be the exclusive means of resolving disputes arising
under or affecting this Agreement and all other agreements to be
executed in accordance herewith.
(b) All papers, documents or evidence, whether
written or oral, filed with or presented to the panel of
arbitrators shall be deemed by the parties and by the arbitrators
to be confidential information. No party or arbitrator shall
17
<PAGE> 19
disclose in whole or in part to any other person any confidential
information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist
counsel in the arbitration or preparation for arbitration of the
dispute. Confidential information may be disclosed (i) to
attorneys, (ii) to parties, and (iii) to outside experts
requested by either party's counsel to furnish technical or
expert services or to give testimony at the arbitration
proceedings, subject, in the case of such experts, to execution
of a legally binding written statement that such expert agrees to
comply with the confidentiality terms of this Section, and that
such expert will not use any confidential information disclosed
to such expert for personal or business advantage.
5.11 Termination. If either party transfers its shares in
the Joint Venture pursuant to the Joint Venture Agreement, or is
a Triggering Party under the Joint Venture Agreement, the other
party shall have the right to terminate this Agreement. This
agreement may be terminated by either party pursuant to the
rights given it under subsection 7.5.A of the Joint Venture
Agreement.
5.12 Cooperation; Best Efforts. The parties agree to
cooperate and to use their best efforts to consummate all
purchases of AMD Shares authorized by this Agreement. Such
cooperation shall include, but not be limited to, the diligent
and prompt filing and pursuit of all governmental consents,
reviews or clearances required by law to be obtained by either
party with respect to any or all of the Initial Purchase and the
Subsequent Purchases.
18
<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers
as of the day and year first above written.
FUJITSU LIMITED
By /s/ HIKOTARO MASUNAGA
____________________________
Hikotaro Masunaga
ADVANCED MICRO DEVICES, INC.
By /S/ MARVIN D. BURKETT
_____________________________
Marvin D. Burkett
Chief Financial Officer
19
<PAGE> 21
EXHIBIT A
CLOSING CERTIFICATE OF OFFICERS
OF
FUJITSU LIMITED
I am the duly elected, qualified and acting
______________________ (bucho) of Fujitsu Limited, a Japanese stock
company ("Fujitsu").
I hereby certify that, to the best of my knowledge, the
representations and warranties contained in section 6.1 of the
Joint Venture Agreement by and between Advanced Micro Devices, Inc.
and Fujitsu, Limited, dated ___________ and the representations and
warranties contained in section 3.2 of the Investment Agreement of
Fujitsu Limited into Advanced Micro Devices, Inc., dated
____________, remain true and correct as of the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate on this
___ day of ____________, 199__.
20
<PAGE> 22
EXHIBIT B
CLOSING CERTIFICATE OF OFFICERS
OF
ADVANCED MICRO DEVICES, INC.
I am the duly elected, qualified and acting
______________________, of Advanced Micro Devices, Inc., a Delaware
corporation ("AMD").
I hereby certify that, to the best of my knowledge, the
representations and warranties contained in section 6.2 of the
Joint Venture Agreement by and between Advanced Micro Devices, Inc.
and Fujitsu, Limited, dated __________, and the representation and
warranties contained in section 3.1 of the Investment Agreement of
Fujitsu Limited into Advanced Micro Devices, Inc., dated
____________, remain true and correct as of the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate on this
___ day of ________, 199___.
21
<PAGE> 1
EXHIBIT 10.27(e)
JOINT VENTURE LICENSE AGREEMENT
Confidential portions of this document have been deleted and
filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
<PAGE> 2
JOINT VENTURE LICENSE AGREEMENT
Table of Contents
<TABLE>
<CAPTION>
Page
<S> <C>
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
2. GRANTS OF LICENSE . . . . . . . . . . . . . . . . . . . . 3
3. SUPPORT AND TRAINING. . . . . . . . . . . . . . . . . . . 4
4. CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . 4
5. TAXATION. . . . . . . . . . . . . . . . . . . . . . . . . 6
6. INTELLECTUAL PROPERTY RIGHTS. . . . . . . . . . . . . . . 6
7. EXCHANGE OF INFORMATION AND CONFIDENTIALITY . . . . . . . 7
8. RESIDENCE AT JV FACILITY. . . . . . . . . . . . . . . . . 8
9. THIRD PARTY CLAIM . . . . . . . . . . . . . . . . . . . . 8
10. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. . . . 9
11. TERM AND TERMINATION. . . . . . . . . . . . . . . . . . . 10
12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 12
ATTACHMENT A . . . . . . . . . . . . . . . . . . . . . . . . . 20
ATTACHMENT B . . . . . . . . . . . . . . . . . . . . . . . . . 21
ATTACHMENT C . . . . . . . . . . . . . . . . . . . . . . . . . 22
ATTACHMENT D . . . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
i
<PAGE> 3
JOINT VENTURE LICENSE AGREEMENT
This Joint Venture License Agreement (this "Agreement"), dated as of
April 16, 1993, is among ADVANCED MICRO DEVICES, INC. ("AMD"), a
Delaware corporation having its principal office at 901 Thompson Place,
Sunnyvale, California 94088-3453, U.S.A., FUJITSU LIMITED ("Fujitsu"), a
Japanese corporation having its registered office at 1015 Kamikodanaka,
Nakahara-ku, Kawasaki 211, Japan, and FUJITSU AMD SEMICONDUCTOR LIMITED ("JV"),
a Japanese corporation having its registered office at 1263 Kamikodanaka,
Nakahara-ku, Kawasaki 211, Japan.
INTRODUCTION
A. Fujitsu and AMD have entered into a joint venture agreement dated
March 30, 1993 (the "Joint Venture Agreement"), and other related agreements
to establish JV to manufacture and supply certain integrated circuits.
B. Fujitsu is, among other things, in the business of designing,
developing, manufacturing and selling semiconductor products.
C. AMD is, among other things, in the business of designing, developing,
manufacturing and selling semiconductor products.
D. JV desires Fujitsu and AMD to grant to JV, and Fujitsu and AMD are
willing to grant to JV, a limited license to use their respective intellectual
property rights for manufacturing and supplying certain JV Products (as defined
in the Joint Development Agreement), subject to the terms and conditions as
hereinafter set forth.
E. JV desires to obtain from Fujitsu and AMD, and Fujitsu and AMD are
willing to supply JV, certain relevant technology, technical training and
support for such JV Products.
F. Fujitsu and AMD desire JV to grant to Fujitsu and AMD, and JV is
willing to grant to Fujitsu and AMD, a license to use JV's intellectual
property rights to make, use or sell products, subject to the terms and
conditions as hereinafter set forth.
ACCORDINGLY, in consideration of the mutual covenants and promises
contained herein, Fujitsu, AMD and JV agree as follows:
Article 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
1
<PAGE> 4
Section 1.1 The following words as used herein have the meanings
defined in the Technology Cross-License Agreement between AMD and Fujitsu
("Technology Cross-License") dated as of March 1993 (except that, for purposes
of this Agreement, references in Sections 1.9 and 1.25 of the Technology
Cross-License to "this Agreement" shall mean this Agreement).
<TABLE>
<CAPTION>
Technology Cross-
Definition License Section
---------- -----------------
<S> <C>
"Affiliate" 1.1.
"Applicable Law" 1.2.
"Confidential Information" 1.4.
"EPROM" or "Electrically Programmable
Read Only Memory" 1.7.
"Flash Memory" 1.8.
"Governmental Approvals" 1.9.
"Governmental Authority" 1.10.
"Incorporated Product" 1.11.
"Joint Development Agreement" 1.13.
"Memory Card" 1.20.
"Nondisclosure Agreements" 1.21.
"NVM" or "Non-Volatile Memory" 1.23.
"Other IPR" 1.24.
"Patents" 1.25.
"Pilot Product" 1.26.
"Proprietary Information" 1.28.
"Subsidiary" 1.33.
"Transitional Event" 1.34.
</TABLE>
Section 1.2. "AMD/Fujitsu Technology" shall mean the front-end
manufacturing process technology for manufacturing JV Products and the product
design data for JV Products owned or developed by Fujitsu and/or AMD and
provided or transferred to JV by AMD or Fujitsu in accordance with this
Agreement. The major elements of AMD/Fujitsu Technology to be provided are
currently anticipated as set forth in Attachment D hereto.
Section 1.3. "Effective Date" shall mean the later to occur of
(a) the date of this Agreement or (b) the date on which all required
Governmental Approvals have been obtained.
Section 1.4. "IPR" or "Intellectual Property Rights", (a) with
respect to Fujitsu or AMD, shall have the meaning set forth in the Technology
Cross-License, and (b) with respect to JV, shall mean all Patents of JV and all
copyrights, mask works, trade secrets, know-how, data, formula, processes,
confidential information, or other information, tangible or otherwise, that are
wholly owned by JV or as to which, and only to the extent and subject to the
conditions under which, JV has the right, as of the Effective Date or
thereafter during the term of this Agreement, to grant licenses or sublicenses
of the scope granted herein, without such grant resulting in the payment of
royalties or other consideration to third parties (unless and until JV is
reimbursed for any payments so made, in which case such information shall be
included within IPR for any license or sublicense to the party providing the
2
<PAGE> 5
reimbursement) except for payments to a Subsidiary of JV, if any, or payments
to third parties for IPR developed or created by such third parties while
employed by JV or any Subsidiary thereof.
Section 1.5. [Intentionally omitted]
Section 1.6. "JV Product" shall have the meaning set forth in
Section 1.4 of the Joint Development Agreement.
Section 1.7. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
Section 1.8. "Subject Technology IPR" shall have the meaning
set forth in Section 1.6 of the Joint Development Agreement.
Section 1.9. "Tripartite IPR" shall mean IPR which, during the
term of this Agreement, all of AMD, Fujitsu, and JV jointly own and/or control
as a result of the joint development and design work done by all three parties
hereunder.
Article 2. GRANTS OF LICENSE.
Section 2.1. Fujitsu hereby grants to JV a non-exclusive, non-
transferable license under Fujitsu IPR, with no right to sublicense:
(a) to make, have made (it being understood that for purposes
of this Agreement the terms "make" and "have made" shall include the acts of
assembling and/or testing) and use JV Products and to use Pilot Products
anywhere in the world; and
(b) to sell, lease or otherwise dispose of JV Products and Pilot
Products solely in the countries specified in Attachment A.
Section 2.2. AMD hereby grants to JV a non-exclusive, non-
transferable license under AMD IPR, with no right to sublicense:
(a) to make, have made and use JV Products and to use Pilot
Products anywhere in the world; and
(b) to sell, lease and otherwise dispose of JV Products and
Pilot Products solely in the countries specified in Attachment B.
Section 2.3. JV hereby grants to AMD and Fujitsu a non-
exclusive, non-transferable, perpetual, irrevocable, [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION],
worldwide license, with the right to sublicense freely, under JV IPR to make,
have made, use, sell, lease or otherwise dispose of any processes, manufacturing
apparatus, or products anywhere in the world.
3
<PAGE> 6
Section 2.4. JV agrees that it shall notify AMD and Fujitsu of
any significant modifications to AMD/Fujitsu Technology or JV technology.
Article 3. SUPPORT AND TRAINING.
Section 3.1. AMD and Fujitsu shall use their best efforts to
provide AMD/Fujitsu Technology to JV in accordance with the schedule set forth
in Attachment C hereto, as such schedule may be modified from time to time upon
mutual agreement of the parties.
Section 3.2. AMD and Fujitsu agree to cooperate with each other
and with JV in providing to JV the AMD/Fujitsu Technology.
Section 3.3. Either AMD or Fujitsu may, upon the consent of AMD
in the case of Fujitsu or Fujitsu in the case of AMD, provide JV with new
AMD/Fujitsu Technology as a replacement for previously provided AMD/Fujitsu
Technology.
Section 3.4. Each of Fujitsu and AMD shall use best efforts to
provide to JV without charge initial technical training or support as required
in connection with the delivery of AMD/Fujitsu Technology. Such technical
training shall be provided in accordance with a schedule to be mutually agreed
upon by the JV and the party responsible for providing such Technology, but in
any event such training or support shall last no longer than ninety (90) days
from the date of the first delivery of the relevant Technology.
Section 3.5. From time to time after the provision of technical
training or support contemplated by Section 3.4, JV may request and Fujitsu
and/or AMD, as the case may be, may provide, additional technical training or
support upon terms and conditions as agreed between or among Fujitsu and/or AMD
and the JV. The responsible party as set forth in Section 3.4 above shall be
responsible for such additional technical training or support.
Section 3.6. JV shall assign one or more of its employees to be
responsible for receiving and managing AMD/Fujitsu Technology, and shall notify
AMD and Fujitsu of the name of such employee(s) prior to the delivery of any
AMD/Fujitsu Technology. When JV changes such responsible employee(s), JV shall
notify Fujitsu and AMD of such change in writing without delay.
Article 4. CONSIDERATION.
Section 4.1. In consideration of the license to Fujitsu IPR
granted under Section 2.1, and the rights in Tripartite IPR acquired by
JV under Sections 6.1 and 6.2, JV agrees to pay Fujitsu [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] which shall be due for all JV Products sold, leased, or
otherwise transferred by JV worldwide.
Section 4.2. In consideration for the license to AMD IPR
granted under Section 2.2, and the rights in Tripartite IPR acquired by JV
under Sections 6.1 and 6.2, JV agrees to pay AMD [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
which shall be due for all JV Products sold, leased, or otherwise transferred
by JV worldwide.
Section 4.3. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shall be payable
semi-annually within sixty (60) days after the end of each half of JV's fiscal
year.
4
<PAGE> 7
On or before the date of such payment JV shall send to Fujitsu and AMD a
report describing the basis for its [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] calculation.
Notwithstanding Sections 4.1 and 4.2 and any other provisions hereof, no
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] shall be payable by JV to a party on JV Products if such
JV Products do not embody, do not incorporate or are not otherwise subject to
(or are not manufactured through processes or methods that embody, incorporate
or are otherwise subject to) the IPR of such party, Subject Technology IPR, or
Tripartite IPR.
Section 4.4. JV shall pay to Fujitsu and/or AMD, as the case may
be, a fee for any technical training provided to JV by Fujitsu and/or AMD
pursuant to Section 3.5 at a rate to be mutually agreed by the JV, Fujitsu and
AMD, which shall include a fee for the services of any employees provided and
all actual costs incurred by Fujitsu and/or AMD, as the case may be, in
providing such training, including but not limited to, travel, hotel and per
diem expenses of such employee(s) and any costs of translation and reproduction
of written materials. JV shall pay such fee to Fujitsu and/or AMD, as the case
may be, within thirty (30) days of the date of the invoice issued by Fujitsu or
AMD.
Section 4.5. All payments made hereunder pursuant to Section 4.3
and 4.4 above shall be free and clear of all deductions, withholding taxes or
other charges, except as provided in Article 5, and shall be made by JV in
Japanese yen to Fujitsu or US dollars to AMD, by wire transfer to a bank
account(s) designated by Fujitsu or AMD, as the case may be, unless otherwise
mutually agreed upon. Any currency conversion required in connection with
payment to Fujitsu or AMD, as the case may be, shall be at the rate received by
JV at the time of such payment from the bank it utilizes to make such payment.
Section 4.6. Fujitsu and AMD shall each have the right, at its
own expense, upon reasonable notice and at reasonable times, but not more than
once each fiscal year for each party, to inspect, through an independent
auditor or another person reasonably acceptable to JV, JV's records for the
purpose of verifying the accuracy of JV's calculations of [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]. JV shall keep records showing the JV Products sold or otherwise
disposed of under the licenses granted herein and the calculation of Net Sales
in sufficient detail to enable the [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] payable to Fujitsu or
AMD to be determined. Such records shall be maintained for a period of at
least [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] after the date when payment is due by JV.
Section 4.7. In the event Fujitsu or AMD, as the case may be, is
required to pay a fee to a third party pursuant to any license agreement or
amendment to an existing license agreement for sublicensing such third party's
intellectual property rights to JV, JV shall be responsible for such fee to the
extent such fee is a separate [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] on sales by JV. Where
such fee is part of a general lump sum payment, the sublicensing party and JV
shall agree upon a mutually acceptable allocation of such payment.
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Section 4.8. The parties have established the [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] rates set forth in Sections 4.1 and 4.2 based on what they believe
are commercially appropriate arm's-length [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] rates given the
anticipated economic performance of JV. If the profits of JV exceed, or fall
short of, those reasonably contemplated by the parties, the parties agree to
make appropriate adjustments to the [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] rates.
Article 5. TAXATION.
Section 5.1. If required by applicable laws, JV may withhold
income tax from any payment to AMD or Fujitsu, as the case may be. In the case
of such withholding, JV shall, without delay, pay the withheld tax to the
appropriate tax office and furnish Fujitsu or AMD, as the case may be, with
appropriate evidence of the tax payment.
Section 5.2. JV shall bear all sales, use and other governmental
taxes or transaction charges imposed in any jurisdiction which arise in
connection with the delivery or use of AMD/Fujitsu Technology, or the
manufacture or sale of JV Products by JV hereunder.
Section 5.3. The parties agree that the tangible portion of the
property delivered and to be delivered by AMD to JV is valued at [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] and by Fujitsu to JV is valued at [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
Article 6. INTELLECTUAL PROPERTY RIGHTS.
Section 6.1. Except as provided in Section 6.2, all Tripartite
IPR hereunder shall be jointly owned by JV, AMD and Fujitsu. None of the
parties hereto may file an application for a Patent, with respect to such
Tripartite IPR without the prior written consent of the other parties hereto.
The parties agree to cooperate in applying for, prosecuting and maintaining any
Patents as may be mutually agreed and in protecting such Tripartite IPR, and in
each case, to equally divide the expenses thereof. Except for the
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] payments required by Sections 4.1 and 4.2, each of
Fujitsu, AMD and JV shall have the right to make, have made, use and sell
products and processes using the Tripartite IPR and to license (except in case
of JV, any such license to be subject to appropriate Board of Directors
approval) Tripartite IPR without accounting to the other parties unless
otherwise mutually agreed upon in writing, except that neither Fujitsu, AMD nor
JV shall assign its ownership interest in any Tripartite IPR to a third party
without the prior written consent of the other parties.
Section 6.2. Where any technology related to JV Products is
developed independently by any party hereto, or by JV jointly with either
Fujitsu or AMD,
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<PAGE> 9
without use of the Confidential Information of the other party(ies), in the
course of development and design work in accordance with the terms of this
Agreement, the ownership and the right to file for a Patent for such
technology shall rest solely with the party(ies) developing such technology.
All Other IPR and Proprietary Information in such technology shall be owned
jointly by the parties, shall be considered Tripartite IPR and shall be
subject to the provisions of this Agreement regarding Tripartite IPR. Pursuant
to the Technology Cross-License and the Joint Development Agreement and
Article 2 of this Agreement, each of Fujitsu, AMD, and JV will grant to the
others a license to the IPR covering any such technology developed
independently by such party and patented by such party in accordance with this
Section 6.2.
Article 7. EXCHANGE OF INFORMATION AND CONFIDENTIALITY.
Section 7.1. During the term of this Agreement, Fujitsu, AMD and
JV shall exchange their Confidential Information relevant to NVMs as necessary
(but only to the extent as legally permitted) to enable the parties to
cooperate fully in developing NVMs.
Section 7.2. Except as expressly authorized among the parties,
(including, without limitation, the exercise of the rights granted to a party
under this Agreement, the Technology Cross-License and the Joint Development
Agreement), each party agrees not to disclose, use or permit the disclosure or
use by others of any Confidential Information, unless and to the extent such
Confidential Information (i) is not marked or designated in writing as
confidential and is provided for a purpose that reasonably contemplates
disclosure to or use any others, (ii) or becomes a matter of public knowledge
through no action or inaction of the party receiving the Confidential
Information, (iii) was in the receiving party's possession before receipt from
the party providing such Confidential Information, (iv) is rightfully received
by the receiving party from a third party without any duty of confidentiality,
(v) is disclosed to a third party by the party providing the Confidential
Information without a duty of confidentiality on the third party, (vi) is
disclosed by the receiving party despite the exercise of the same degree of
care used by the receiving party to safeguard its own similar Confidential
Information, but the receiving party shall take all necessary steps to prevent
any further disclosure, (vii) is disclosed with the prior written approval of
the party providing such Confidential Information or (viii) is independently
developed by the receiving party without any use of the other party's
Confidential Information. Information shall not be deemed to be available to
the general public for the purpose of exclusion (ii) above with respect to each
party (x) merely because it is embraced by more general information in the
prior possession of recipient or others, or (y) merely because it is expressed
in public literature in general terms not specifically in accordance with the
Confidential Information.
Section 7.3. In furtherance, and not in limitation of the
foregoing Section 7.2, each party agrees to do the following with respect to
any such Confidential Information: (i) exercise the same degree of care to
safeguard the confidentiality of, and prevent the unauthorized use of, such
information as that party exercises to safeguard the confidentiality of its own
information, (ii) restrict disclosure of such information to those of its
employees, agents and sublicensees who have a "need to know", and (iii)
instruct and require such employees, agents and sublicensees to maintain the
confidentiality of such information and not to use such information except as
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<PAGE> 10
expressly permitted herein. Each party further agrees not to remove or
destroy any proprietary or confidential legends or markings placed upon any
documentation or other materials.
Section 7.4. The foregoing confidentiality obligation shall also
apply to the contents of this Agreement.
Section 7.5. The obligations under this Article 7 shall not
prevent the parties from disclosing the Confidential Information or the terms
of this Agreement to any government agency as required by law (provided that
the party intending to make such disclosure in such circumstances has given
prompt notice to the party providing such Confidential Information prior to
making such disclosure so that such party may seek a protective order or other
appropriate remedy prior to such disclosure and cooperates fully with such
other party in seeking such order or remedy).
Section 7.6. The obligations under this Article 7 shall apply
with respect to any Confidential Information for a period of [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] from the date of disclosure of such Confidential Information to the
receiving party, unless, with respect to any particular Confidential
Information, the providing party in good faith notifies the receiving party
that a longer period shall apply, in which case the obligations under this
Article 7 with respect to such Confidential Information shall apply for such
longer period.
Article 8. RESIDENCE AT JV FACILITY.
Fujitsu and/or AMD shall be permitted to have a limited number
of engineers and technical personnel reside at JV's facilities at such party's
own cost to enhance information exchange among Fujitsu, AMD and JV. The number
of engineers, and technical personnel, shall be subject to JV's prior
reasonable approval. Any JV IPR obtained or learned by such engineers, and
technical personnel, during such period shall be included within the licenses
granted under Section 2.3.
Article 9. THIRD PARTY CLAIM.
Section 9.1. JV shall indemnify and hold harmless AMD, Fujitsu,
and their Subsidiaries from any loss or damages (including reasonable
attorney's fees) arising from any and all claims or actions brought against JV,
Fujitsu or AMD, based upon any JV Product sold by JV. JV shall control the
defense of such claims or actions and AMD and Fujitsu shall render reasonable
support to JV.
Section 9.2. Fujitsu and AMD shall indemnify and hold harmless
JV from any loss or damages (including reasonable attorney's fees) arising from
any and all claims or actions brought against JV based upon the AMD/Fujitsu
Technology as and to the extent hereinafter provided. With respect to
AMD/Fujitsu Technology that is owned jointly by AMD and Fujitsu, AMD and
Fujitsu shall jointly (but not severally) indemnify JV. With respect to
AMD/Fujitsu Technology that is transferred to JV and that is owned solely by
either AMD or Fujitsu, such transferring party shall indemnify JV. In the
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event of the joint indemnification, AMD and Fujitsu shall cooperate
fully in the defense of such claims or actions and the costs and expenses
(including any losses or damages (including reasonable attorney's fees)) shall
be shared equally. In the event the indemnity is by either AMD or Fujitsu, such
party shall control the defense of such claims or actions. The JV and the other
party shall render reasonable support to the party or parties indemnifying JV
hereunder.
Article 10. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS.
Section 10.1. Each of the parties hereto represents and warrants
to each other party that it has the right, and will continue during the term of
this Agreement to have the right, to grant to or for the benefit of the other
parties the rights and licenses granted hereunder in accordance with the terms
of this Agreement and such grant of rights and licenses does not, and will not
during the term of this Agreement, conflict with the rights and obligations of
such party under any other license, agreement, contract or other undertaking.
Each party shall indemnify, hold harmless and defend the other parties against
a breach by such party of this Section 10.1.
Section 10.2. Nothing contained in this Agreement shall be
construed as:
(a) a warranty or representation by any of the parties hereto
or its Subsidiaries sublicensed hereunder as to the validity or scope of any JV
IPR, Tripartite IPR, Fujitsu IPR or AMD IPR, as the case may be; or
(b) conferring upon any party hereto or its Subsidiaries
sublicensed hereunder any license, right or privilege under any patents,
utility models, design patents, copyrights, mask work rights or trade secrets
except the licenses, rights and privileges expressly granted hereunder; or
(c) a warranty or representation that any acts licensed or
sublicensed hereunder will be free from infringement of patents, utility
models, design patents, copyrights, mask work rights or trade secrets other
than those under which licenses, rights and privileges have been expressly
granted hereunder; or
(d) an arrangement to bring or prosecute actions or suits
against third parties for infringement or conferring any right to bring or
prosecute actions or suits against third parties for infringement; or
(e) conferring any right to use in advertising, publicity or
otherwise, any trademark, service mark, trade name or their equivalent, or any
contraction, abbreviation or simulation thereof, of either party hereto or
their Subsidiaries sublicensed hereunder.
Section 10.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NONE OF THE
PARTIES HERETO MAKES ANY WARRANTIES, WHETHER EXPRESS OR OTHERWISE, CONCERNING
ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION
LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
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PURPOSE, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR WARRANTIES OF
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND NONE OF THE
PARTIES HERETO SHALL BE RESPONSIBLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING IN ANY WAY
OUT OF THIS AGREEMENT OR ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS,
DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS
AGREEMENT.
Article 11. TERM AND TERMINATION.
Section 11.1. Term. This Agreement shall become effective as of
the Effective Date and, unless and until terminated hereunder, shall continue
until the occurrence of a Transitional Event, at which time this Agreement
shall terminate.
Section 11.2. Termination. Termination of this Agreement may
result from the events listed below. Each party agrees to give prompt written
notice to the other parties of the happening of any such event.
(a) If any party hereto defaults in the performance of any
material obligation hereunder, a non-defaulting party may give written notice
thereof and the parties shall discuss the problem arising from such default in
good faith and seek to resolve such problem. If such default is not corrected
or otherwise addressed by the defaulting party to the satisfaction of all of
the non-defaulting parties within ninety (90) days after the written notice of
such default then a non-defaulting party may, in addition to any other remedies
it or they may have, terminate this Agreement by written notice. This
Agreement shall terminate on the thirtieth (30th) day after such notice of
termination.
(b) Any party hereto may terminate this Agreement by giving
written notice of termination to the other parties at any time, upon or after:
(i) the filing by such other party of a petition in
bankruptcy or insolvency;
(ii) any adjudication that such other party is bankrupt or
insolvent;
(iii) the filing by such other party of any legal action or
document seeking reorganization, readjustment or arrangement of such other
party's business under any law relating to bankruptcy or insolvency;
(iv) the appointment of a receiver or bankruptcy trustee
for all or substantially all of the property of such other party;
(v) the making by such other party of any general
assignment for the benefit of creditors; or
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(vi) the institution of any proceedings for the liquidation
or winding up of such other party's business or for the termination of its
corporate charter, provided, in the event such proceedings are involuntary, the
proceedings are not dismissed within ninety (90) days.
(c) If at any time during the term of this Agreement, (i) AMD
or Fujitsu incurs in one transaction or a series of related transactions a
change in ownership of more than [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of its capital stock,
(ii) AMD or Fujitsu consolidates with or merges with or into another
corporation, partnership or other entity, whether or not such party is the
surviving entity of such transaction, unless immediately after such
consolidation or merger, shareholders of such party prior to the transaction
continue to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the outstanding
shares of stock entitled to vote for the election of directors of such new or
surviving entity, or (iii) AMD or Fujitsu sells, assigns or otherwise transfers
all or substantially all of the business or assets of such party relating to
its semiconductor merchant market business to a third party, any other party
may terminate this Agreement upon thirty (30) days' advance written notice to
the other parties, provided, in each case, that the terminating party must
exercise such right no later than one (1) year after receiving written notice
of such transaction from the affected party.
(d) In the event that a third party (other than a bank,
insurance company or other financial or investment company or institution)
acquires greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership of AMD or Fujitsu and
either a position on the board of directors or a position of management in such
party, where such acquisition of ownership and management position or board
position in such party is judged by any other party hereto after careful
consideration to be detrimental to such other party, such other party may
terminate this Agreement upon thirty (30) days' advance written notice to such
party, provided that the terminating party must exercise such right not later
than one (1) year after receiving written notice of such transaction from the
affected party.
(e) AMD or Fujitsu may terminate this Agreement upon thirty
(30) days' written advanced notice to the other party and JV where such other
party ceases to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the issued and
outstanding capital stock of JV.
(f) In the event that a change occurs in the management of AMD
or Fujitsu as a result of a proxy solicitation contest, which change is judged
by any other party after careful consideration to be detrimental to the affairs
of JV, either of the other parties may terminate this Agreement upon thirty
(30) days' written advance notice to the other parties, provided that the
terminating party must exercise such right not later than one (1) year after
receiving written notice of such event from the affected party.
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Section 11.3. Effect of Termination.
(a) Except as otherwise provided in this Section 11.3, all
rights and obligations of the parties hereunder shall cease upon termination or
expiration of this Agreement, with the exception of the rights and obligations
of the parties under Articles 5, 6, 7, 9, 10, 11 and 12, and Sections 2.3, 4.6,
4.7 and 4.8 which shall survive termination or expiration of this Agreement.
(b) Upon termination of this Agreement for whatever reason, (i)
all IPR licensed pursuant to this Agreement prior to its termination shall
continue in full force and effect, and (ii) JV, Fujitsu and AMD shall (A)
jointly own all JV IPR and Tripartite IPR, (B) cooperate (if agreed by AMD and
Fujitsu) in applying for, prosecuting and maintaining any Patents, and
protecting such IPR developed prior to termination of this Agreement and
equally dividing the expenses thereof, and (C) except as otherwise provided in
Section 11.3.(c), have the unlimited right to use and to license such JV IPR
and Tripartite IPR and the right to make, have made, use, reproduce, modify,
distribute, sell, lease or otherwise dispose of any processes and products
based upon or incorporating such IPR without restriction or accounting to the
other party unless otherwise mutually agreed upon in writing, except that
neither Fujitsu nor AMD shall assign its ownership interest in any such IPR to
a third party without the prior written consent of the other party.
(c) The surviving licenses to the JV pursuant to this
Subsection 11.3 shall be subject to the payment of [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] by JV
to AMD and Fujitsu as may be mutually agreed by the parties at the time of
termination, provided that if the parties are unable to mutually agree upon
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] at such time, the [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shall be set at
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] of Net Sales to each party for all JV Products sold by JV
for [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION] after termination, payable semi-annually in accordance
with the provisions of Sections 4.3, 4.5, 4.6 and Article 5 and the surviving
licenses to the JV shall hereafter be paid-up and royalty-free.
Article 12. MISCELLANEOUS.
Section 12.1. Force Majeure. No party shall be liable for
failure to perform, in whole or in material part, its obligations under this
Agreement if such failure is caused by any event or condition not existing as
of the date of this Agreement and not reasonably within the control of the
affected party, including, without limitation, by fire, flood, typhoon,
earthquake, explosion, strikes, labor troubles or other industrial
disturbances, unavoidable accidents, war (declared or undeclared), acts of
terrorism, sabotage, embargoes, blockage, acts of Governmental Authorities,
riots, insurrections, or any other cause beyond the control of the parties;
provided that the affected party promptly notifies the other parties of the
occurrence of the event of force majeure and takes all reasonable steps
necessary to resume performance of its obligations so interfered with.
Section 12.2. Assignment. Neither this Agreement nor any of the
rights and obligations created hereunder may be assigned, transferred, pledged,
or otherwise encumbered or disposed of, in whole or in part, whether
voluntarily or by operation of law, or otherwise, by any party without the
prior written consent of the other parties. This Agreement shall inure to the
benefit of and be binding upon the parties' permitted successors and assigns.
Section 12.3. Notices. All notices and communications required,
permitted or made hereunder or in connection herewith shall be in writing and
shall be mailed by first class, registered or certified mail (and if overseas,
by airmail), postage prepaid, or otherwise delivered by hand or by messenger,
or by recognized courier service (with written receipt confirming delivery),
addressed:
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(a) If to FUJITSU, to:
Mail or Hand Delivery:
FUJITSU LIMITED
1015 Kamikodanaka, Nakahara-ku
Kawasaki-shi 211, JAPAN
Attn:Masaichi Shinoda
General Manager
Business Development Division
Electronic Devices
with a copy to:
Mail or Hand Delivery:
FUJITSU LIMITED
Marunouchi Center Bldg., 6-1
Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, JAPAN
Attn:Gen Iseki
General Manager, Legal Division
(b) If to AMD, to:
Senior Vice President,
Operations Advanced Micro Devices, Inc.
P.O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Attn: Gene Conner
Mail:
Mikio Ishimaru, Esq.
Director of Technology Law
Advanced Micro Devices, Inc., MS 68
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Hand Delivery:
3625 Peterson Way
Santa Clara, CA 95054
U.S.A.
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with a copy to:
Mail:
Senior Vice President, Operations
Advanced Micro Devices, Inc.
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Attn: Gene Conner
Hand Delivery:
915 DeGuigne Drive
Sunnyvale, CA 94086
U.S.A.
(c) If to JV:
Mail or Hand Delivery:
Fujitsu AMD Semiconductor, Limited
1015 Kamikodanaka
Nakahara-Ku
Kawasaki 211
Japan
Attn: Kimio Yanagida, President
with two copies to:
Mail or Hand Delivery:
FUJITSU LIMITED
1015 Kamikodanaka, Nakahara-ku
Kawasaki-shi 211, JAPAN
Attn:Masaichi Shinoda
General Manager
Business Development Division
Electronic Devices
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with a copy to:
Mail or Hand Delivery:
FUJITSU LIMITED
Marunouchi Center Bldg., 6-1
Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, JAPAN
Attn:Gen Iseki
General Manager, Legal Division
with two copies to:
Mail:
Mikio Ishimaru, Esq.
Director of Technology Law
Advanced Micro Devices, Inc., MS 68
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Hand Delivery:
3625 Peterson Way
Santa Clara, CA 95054
U.S.A.
with a copy to:
Mail:
Senior Vice President, Operations
Advanced Micro Devices, Inc.
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Attn: Gene Conner
Hand Delivery:
915 DeGuigne Drive
Sunnyvale, CA 94086
U.S.A.
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Each such notice or other communication shall for all purposes hereunder
be treated as effective or as having been given as follows: (i) if delivered
in person, when delivered; (ii) if sent by mail or airmail, at the earlier of
its receipt or at 5 pm, local time of the recipient, on the seventh day after
deposit in a regularly maintained receptacle for the deposition of mail or
airmail, as the case may be; and (iii) if sent by recognized courier service,
on the date shown in the written confirmation of delivery issued by such
delivery service. Either party may change the address and/or addressee(s) to
whom notice must be given by giving appropriate written notice at least seven
(7) days prior to the date the change becomes effective.
Section 12.4. Export Control. Without in any way limiting the
provisions of this Agreement, each of the parties hereto agrees that no
products, items, commodities or technical data or information obtained from a
party hereto nor any direct product of such technical data or information is
intended to or shall be exported or reexported, directly or indirectly, to any
destination restricted or prohibited by Applicable Law without necessary
authorization by the Governmental Authorities, including (without limitation)
the Japanese Ministry of International Trade and Industry, the United States
Bureau of Export Administration (the "BEA") or other Governmental Authorities
of the United States with jurisdiction with respect to export matters. Without
limiting the generality of the foregoing, each party hereto agrees that it will
not, without authorization from the Office of Export Licensing of the BEA,
knowingly export or reexport to a destination outside of the United States
General License GTDR technical data or information of United States origin
subject to this Agreement, or the direct product thereof, or the product of a
plant or major component of a plant that is the direct product thereof, without
first providing any applicable export assurances to the exporting party.
Section 12.5. Arbitration.
(a) Any and all disputes arising under or affecting this
Agreement shall be resolved exclusively by confidential arbitration pursuant to
the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or
such other location agreed between the parties; provided, however, that the
arbitrators shall be empowered to hold hearings at other locations within or
without Japan. Fujitsu and AMD shall each designate one arbitrator and the two
arbitrators so designated shall select the third arbitrator. Arbitration
proceedings shall be conducted in English with simultaneous translations into
Japanese. The judgment upon award of the arbitrators shall be final and
binding and may be enforced in any court of competent jurisdiction in the
United States or Japan, and each of the parties hereto unconditionally submits
to the jurisdiction of such court for the purpose of any proceeding seeking
such enforcement. Subject only to the provision of Applicable Law, the
procedure described in this Section 12.5 shall be the exclusive means of
resolving disputes involving AMD and arising under this Agreement.
(b) All papers, documents or evidence, whether written or oral,
filed with or presented to the panel of arbitrators shall be deemed by the
parties and by the arbitrators to be Confidential Information. No party or
arbitrator shall disclose in whole or in part to any other person any
Confidential Information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist counsel in the
arbitration or preparation for arbitration of the dispute. Confidential
Information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to
outside experts requested by any party's counsel to furnish technical or expert
services or to give testimony at the arbitration proceedings, subject, in the
case of such experts, to execution of a legally binding written statement that
such expert is fully familiar with the terms of this section, that such expert
agrees to comply with the confidentiality terms of this section, and that such
expert will not use any Confidential Information disclosed to such expert for
personal or business advantage.
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Section 12.6. Entire Agreement. This Agreement, the Joint
Venture Agreement, the other Associated Agreements (as defined in the Joint
Venture Agreement), and the attachments and exhibits hereto and thereto, embody
the entire agreement and understanding between the parties with respect to the
subject matter hereof, superseding all previous and contemporaneous
communications, representations, agreements and understandings, whether written
or oral, including without limitation that certain Memorandum of Understanding
between Fujitsu and AMD dated July 13, 1992 and the Nondisclosure Agreements.
No party has relied upon any representation or warranty of any other party
except as expressly set forth herein, in the Joint Venture Agreement and in the
Associated Agreements.
Section 12.7. Modification. This Agreement may not be modified
or amended, in whole or part, except by a writing executed by duty authorized
representatives of all parties.
Section 12.8. Announcement. The parties may announce the
existence of the parties' relationship and this Agreement at a time and in a
form to be mutually determined. No party shall unreasonably withhold its
consent to a time proposed by any other party.
Section 12.9. Severability. If any term or provision of this
Agreement shall be determined to be invalid or unenforceable under Applicable
Law, such provision shall be deemed severed from this Agreement, and a
reasonable valid provision to be mutually agreed upon shall be substituted. In
the event that no reasonable valid provision can be so substituted, the
remaining provisions of this Agreement shall remain in full force and effect,
and shall be construed and interpreted in a manner that corresponds as far as
possible with the intentions of the parties as expressed in this Agreement.
Section 12.10. No Waiver. Except to the extent that a party
hereto may have otherwise agreed in writing, no waiver by that party of any
condition of this Agreement or breach by any other party of any of its
obligations or representations hereunder shall be deemed to be a waiver of any
other condition or subsequent or prior breach of the same or any other
obligation or representation by any other party, nor shall any forbearance by
the first party to seek a remedy for any noncompliance or breach by any other
party be deemed to be a waiver by the first party of its rights and remedies
with respect to such noncompliance or breach.
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Section 12.11. Nature of Rights. Each party shall have the
rights licensed under this Agreement to any other party's technology and the
related IPR when created, developed or invented regardless of whether
physically delivered to such party. All rights and licenses granted under or
pursuant to this Agreement by a party ("licensor party") to another party
("licensee party") are, for purposes of Section 365(n) of the U.S. Bankruptcy
Code (the "Bankruptcy Code"), licenses of "intellectual property" within the
scope of Section 101 of the Bankruptcy Code. The parties agree that each
licensee party, as a licensee of such rights under this Agreement, shall retain
and may fully exercise all of its rights and elections under the Bankruptcy
Code. The parties further agree that, in the event of the commencement of a
bankruptcy or insolvency proceeding by or against the licensor party, each
licensee party shall be entitled to a complete duplicate of (and complete
access to) any such intellectual property and all embodiments thereof. If not
already in the licensee party's possession, such licensee party has the right
to immediate delivery of such intellectual property and embodiments upon
written request of the licensee party (i) upon any such commencement of
bankruptcy proceedings, unless the licensor party or its representative or
trustee elects to continue to perform all of its obligations under this
Agreement, or (ii) if not delivered under clause (i) above, upon the rejection
of this Agreement by or on behalf of the licensor party.
Section 12.12. Tangible Property. The parties agree that the
tangible portion of the property delivered and to be delivered by AMD to
Fujitsu is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] and by Fujitsu to AMD is valued at
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION].
Section 12.13. Governing Law. The validity, construction,
performance and enforceability of this Agreement shall be governed in all
respects by the laws of the State of California, U.S.A.
Section 12.14. Language. This Agreement, and the attachments
hereto, are in the English language, which language shall be controlling in all
respects.
Section 12.15. No Agency or Partnership. This Agreement shall
not constitute an appointment of any party as the legal representative or agent
of any other party, nor shall any party have any right or authority to assume,
create or incur in any manner any obligation or other liability of any kind,
express or implied, against, in the name or on behalf of, any other party.
Nothing herein or in the transactions contemplated by this Agreement shall be
construed as, or deemed to be, the formation of a partnership, association,
joint venture, or similar entity by or among the parties hereto.
Section 12.16. Headings. The section and other headings
contained in this Agreement are for convenience of reference only and shall not
be deemed to be a part of this Agreement or to affect the meaning or
interpretation of this Agreement.
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<PAGE> 21
Section 12.17. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which shall
be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in triplicate by their duly authorized representatives on the date
set forth above.
ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED
/s/ GENE CONNER /s/ HIKOTARO MASUNAGA
By: Gene Conner By: Hikotaro Masunaga
Title: Senior Vice President, Operations Title: ManagingDirector
FUJITSU AMD SEMICONDUCTOR LIMITED
/s/ K. YANAGIDA
By: KIMO YANAGIDA
Title: President
19
<PAGE> 22
ATTACHMENT A
TO
JOINT VENTURE LICENSE AGREEMENT
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]
20
<PAGE> 23
ATTACHMENT B
TO
JOINT VENTURE LICENSE AGREEMENT
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]
21
<PAGE> 24
ATTACHMENT C
TO
JOINT VENTURE LICENSE AGREEMENT
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]
22
<PAGE> 25
ATTACHMENT D
TO
JOINT VENTURE LICENSE AGREEMENT
1. Process Information
A. Basic Process Data
B. Manufacturing Specifications
C. Process Evaluation Data
2. Device Design Information for Each JV Product
A. Product Specifications
B. Design Data
C. Device Evaluation Data
23
<PAGE> 1
EXHIBIT 10.27(f)
JOINT DEVELOPMENT AGREEMENT
#################################################################
# Confidential portions of this document have been deleted and #
# filed separately with the Securities and Exchange Commission #
# pursuant to a request for confidential treatment. #
#################################################################
<PAGE> 2
JOINT DEVELOPMENT AGREEMENT
Table of Contents
<TABLE>
<S> <C>
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
2. GENERAL RULES FOR JOINT DEVELOPMENT . . . . . . . . . . . 2
3. TARGET SCHEDULE FOR JOINT DEVELOPMENT . . . . . . . . . . 3
4. PROCESS DEVELOPMENT . . . . . . . . . . . . . . . . . . . 3
5. PRODUCT DEVELOPMENT . . . . . . . . . . . . . . . . . . . 5
6. DEVELOPMENT COSTS . . . . . . . . . . . . . . . . . . . . 6
7. INTELLECTUAL PROPERTY RIGHTS. . . . . . . . . . . . . . . 6
8. EXCHANGE OF INFORMATION AND CONFIDENTIALITY . . . . . . . 7
9. USE OF PROPRIETARY INFORMATION AND COMMINGLED
TECHNOLOGY. . . . . . . . . . . . . . . . . . . . . . . . 8
10. THIRD PARTY CLAIM . . . . . . . . . . . . . . . . . . . . 8
11. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. . . . 8
12. TERM AND TERMINATION. . . . . . . . . . . . . . . . . . . 9
13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 12
ATTACHMENT A . . . . . . . . . . . . . . . . . . . . . . . . . 17
ATTACHMENT B . . . . . . . . . . . . . . . . . . . . . . . . . 18
ATTACHMENT C . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
i
<PAGE> 3
JOINT DEVELOPMENT AGREEMENT
This Joint Development Agreement (this "Agreement"), dated as of March 26,
1993, is between ADVANCED MICRO DEVICES, INC. ("AMD"), a Delaware corporation
having its principal office at 901 Thompson Place, Sunnyvale, California
94088-3453, U.S.A. and FUJITSU LIMITED ("Fujitsu"), a Japanese corporation
having its registered office at 1015 Kamikodanaka, Nakahara-ku, Kawasaki 211,
Japan.
INTRODUCTION
A. Fujitsu and AMD are entering into a joint venture agreement (the
"Joint Venture Agreement") to be effective as therein provided and other
related agreements to establish a new Japanese joint venture corporation,
Fujitsu AMD Semiconductor Limited ("JV"), to manufacture and supply certain
integrated circuits subject to certain regulatory approvals and other
conditions precedent.
B. Fujitsu and AMD desire to cooperate fully to develop and transfer to
the JV certain design and process technologies necessary for JV to manufacture
and supply such integrated circuits.
ACCORDINGLY, in consideration of the mutual covenants and promises
contained herein, the parties agree as follows:
Article 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
Section 1.1.The following words as used herein have the meanings
defined in the Technology Cross-License Agreement ("Technology Cross-License")
between AMD and Fujitsu dated as of March 1993 (except that, for purposes of
this Agreement, the references in Sections 1.9 and 1.25 to "this Agreement"
shall mean this Agreement).
<TABLE>
<CAPTION>
Technology Cross-
Definition License Section
---------- ---------------
<S> <C>
"Affiliate" 1.1.
"Applicable Law" 1.2.
"Confidential Information" 1.4.
"EPROM" or "Electrically Programmable
Read Only Memory" 1.7.
"Flash Memory" 1.8.
"Governmental Approvals" 1.9.
"Governmental Authority" 1.10.
</TABLE>
1
<PAGE> 4
<TABLE>
<S> <C>
"IPR" or "Intellectual Property Rights" 1.12.
"Joint Venture License Agreement" 1.15.
"Nondisclosure Agreements" 1.21.
"NVM" or "Non-Volatile Memory" 1.23.
"Other IPR" 1.24.
"Patents" 1.25.
"Proprietary Information" 1.28.
"Subsidiary" 1.33.
"Transitional Event" 1.34.
</TABLE>
Section 1.2. "Commingled Technology" shall have the meaning
given such term in Section 9.1.
Section 1.3. "Effective Date" shall mean the later to occur of
(a) the date of this Agreement or (b) the date which all required Governmental
Approvals have been obtained.
Section 1.4. "JV Product" shall mean an NVM designated as a JV
Product pursuant to Section 2.1 herein.
Section 1.5. "Subject Technology" shall mean any technology
developed by Fujitsu and/or AMD in the course of the development and design
work conducted hereunder. It is understood by the parties that the Subject
Technology initially will consist of NVM eight-inch diameter wafer process
technologies with geometries of 0.5- micron and 0.35-micron, and device design
data for the JV Products. The major elements of the Subject Technology
currently anticipated are set forth in Attachment B hereto.
Section 1.6. "Subject Technology IPR" shall mean IPR that
covers or protects, or is contained, embodied or incorporated in, the Subject
Technology.
Article 2. GENERAL RULES FOR JOINT DEVELOPMENT.
Section 2.1. Joint Development Committee. Attachment A lists
the JV Products to be developed for, and manufactured and sold by, the JV. In
order to amend Attachment A to add or delete a JV Product, the parties shall
establish a committee consisting of engineering managers from each party (the
"Joint Development Committee") who may amend Attachment A prior to the
formation of the JV and make amendment recommendations to the board of
directors of the JV thereafter. The Joint Development Committee may also amend
Attachment B, catalog specifications, and Attachment C, scheduling. The Joint
Development Committee shall meet at the request of either party, or in the
absence of such request, semi-annually. The Joint Development Committee shall
agree unanimously before making any amendments or recommendations as provided
above.
Section 2.2. Development Teams. In order to develop the Subject
Technology, the parties shall establish as soon as practicable after the
Effective Date one or more process development teams and device design teams
consisting of engineers from each party. Fujitsu and AMD shall each assign a
team co-leader for each team. Either party may
2
<PAGE> 5
change its team co-leaders from time to time upon thirty (30) days' written
notice to the other party.
Section 2.3. Cooperative Efforts. The parties shall fully
cooperate with each other in performing such development and design work and
will jointly conduct such work at the same location to the extent possible to
enable Fujitsu and AMD to develop a better understanding of each other's
technological culture and methodology. In the event that, during the term of
this Agreement, any portion of such work is required to be performed
independently by one party, such party shall provide the other party with
regular progress reports on the status of such work so that the other party
might join in such work and shall inform the other party of all results of such
work immediately upon its completion. In the event that development or design
work is performed at one party's facility or facilities, the other party may at
all reasonable times visit the facility or facilities, observe the development
or design work being performed, and bring back to such other party's facilities
all information and results obtained in the course of such work. The major
responsibilities of device design work for the initial JV Products are
specified in Attachment A hereto.
Section 2.4. Settlement of Technical Differences. If the
Development Teams have a difference of technical opinion in the course of
development and design work hereunder, the development teams shall resolve such
difference of opinion by mutual agreement with the goal of developing the best
Subject Technology and achieving the best productivity of JV Products for the
JV.
Section 2.5. Personnel Assignments. Fujitsu may assign
personnel to Fujitsu Microelectronics, Inc. or other Subsidiaries in the United
States, and AMD may assign personnel to its Subsidiaries in Japan, to carry out
the activities contemplated by this Agreement. Each party shall cooperate with
the other in arranging such assignments.
Article 3. TARGET SCHEDULE FOR JOINT DEVELOPMENT.
Attachment C hereto contains an initial schedule for the
development of Subject Technology (the "Target Schedule"). Fujitsu and AMD
agree to use their best efforts to adhere to the Target Schedule.
Article 4. PROCESS DEVELOPMENT.
Section 4.1. Development Steps for the 0.5 micron Process.
The development steps for the Subject Technology related to the 0.5-micron
process shall be as follows:
(a) The parties shall first compare and evaluate each unit
process of both parties' existing 0.5-micron wafer process to assess their
applicability to the production of JV Products at JV's facility.
(b) The parties shall then establish a target process flow for
the 0.5- micron wafer process for JV (the "0.5-micron JV Process") considering
the structural requirements of JV Products and, based upon the results of
Section 4.1(a) and upon mutual
3
<PAGE> 6
discussion, the parties shall decide whether any of the following can be
adapted for the 0.5-micron JV process: (i) an existing unit process of either
party; (ii) a modified unit process of either party; or (iii) any
newly-developed unit process.
(c) In the event that (ii) or (iii) of Section 4.1(b) is
selected, the parties shall discuss and decide how to perform such modification
or development and at which facility the work will be performed (in case of
modification, the facility having the original unit process will be selected,
unless otherwise agreed by the parties).
(d) The parties shall then perform the necessary modifications
and developments in accordance with Section 4.1(c).
(e) The parties shall then assemble all unit processes
selected, modified and developed in accordance with Section 4.1(b) through
4.1(d) into the 0.5-micron JV Process at a mutually-agreed location or
locations, conduct a test run with a JV Product or a test chip on the
0.5-micron JV Process, and evaluate the results thereof (the test run will be
conducted at the site of the party designated in Attachment A, unless otherwise
agreed by the parties).
(f) If a test run does not succeed, the relevant process team
shall discuss the failure with the relevant device design team, apply the
necessary design changes or process adjustments and repeat the test run.
(g) Once both parties have confirmed the successful completion
of the 0.5-micron JV Process, the parties shall decide which party is
responsible for taking the lead in transferring the confirmed Subject
Technology to JV, including documentation for each unit process (in the case of
Section 4.1(b) (i) or (ii), the lead party will be the party that developed the
original unit process, unless otherwise agreed by the parties). A complete set
of such confirmed Subject Technology in tangible form shall be kept by each
party.
Section 4.2. Development Steps for the [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] Process. The development steps for the Subject Technology
related to the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] process shall be as follows:
(a) The parties shall establish a target process flow for the
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] wafer process for JV (the "[CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] JV
Process") considering the structural requirements of JV Products and, based
upon mutual discussion, the parties shall decide whether any of the following
can be adapted to a corresponding unit process for the [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] JV Process: (i) the then-existing unit process of the 0.5-micron
JV Process; (ii) a modified unit process of the 0.5-micron JV Process; (iii) a
then-existing unit process of either party; (iv) a modified unit process of
either party; or (v) any newly-developed unit process; and
4
<PAGE> 7
(b) After Section 4.2(a), the parties shall proceed through
Sections 4.1(c) through 4.1(g) mutatis mutandis.
Article 5. PRODUCT DEVELOPMENT.
Section 5.1. Design Methodology. The parties shall compare and
evaluate both parties' existing design tools (e.g., CAD tools) and
methodologies to assess their relative effectiveness for jointly designing the
JV Products. If the parties agree, they will adopt an appropriate common
design tool and methodology for the purpose of jointly designing the JV
Products. If necessary, both parties shall jointly modify an existing design
tool (including libraries) or develop a new design tool considering the
features of the newly-developed 0.5-micron JV Process or [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] JV Process, as the case may be.
Section 5.2. Design Interface. The parties shall decide and
adopt machine-readable interface formats of design data (circuit data, layout
data and test data) for the purpose of transferring the design data to JV and
sharing the design results between both parties.
Section 5.3. Design Steps of JV Products. The design steps of
the JV Products shall be as follows:
(a) The parties shall develop the catalog specification of each
JV Product.
(b) The parties shall develop the architectural features and
functional and electrical characteristics of each JV Product. These internal
detailed specifications shall be determined by taking into account the
performance of the wafer sort tool and reliability assurance tool, customers'
requirements, the design and evaluation tool and the final test tool.
(c) Based upon such architectural, functional and electrical
characteristics, the parties shall generate and verify the circuit and physical
layout pattern of the JV Product.
(d) Based upon such circuit, the parties shall generate the
test specification and the test program conforming with such test specification.
(e) The parties shall conduct a test run of the JV Product on
the relevant JV Process and evaluate the results thereof.
(f) If a test run does not succeed, the relevant device design
team shall discuss the failure with the relevant process design team, apply the
necessary design changes or process adjustments and repeat the test run.
(g) Once both parties have confirmed the successful completion
of the JV Product, the parties shall decide which party is responsible for
taking the lead in transferring the confirmed design data, including
documentation thereof, to JV. A complete
5
<PAGE> 8
set of such confirmed design data in tangible form shall be kept by each party.
If the lead party is not the party conducting the test run described in
Sections 5.3(e) and (f), the lead party shall conduct a test run on its own to
ensure its ability to support the contemplated technology transfer to JV.
Article 6. DEVELOPMENT COSTS.
Each party shall bear all costs incurred by such party in the
course of the development and design work contemplated by this Agreement.
Article 7. INTELLECTUAL PROPERTY RIGHTS.
Section 7.1. Pursuant to the Joint Venture License Agreement to
be entered into among Fujitsu, AMD and the JV, each of Fujitsu and AMD will
grant to the JV certain licenses to the technology being developed hereunder
and previously existing related technology.
Section 7.2. Pursuant to the Technology Cross-License, each of
Fujitsu and AMD will grant to the other certain licenses to the technology
being developed hereunder and previously existing related technology.
Section 7.3. Except as provided in Section 7.4 of this
Agreement, all Subject Technology IPR hereunder shall be jointly owned by
Fujitsu and AMD. Neither party hereto may file an application for a Patent
with respect to such Subject Technology IPR without the prior written consent
of the other party. The parties agree to cooperate in applying for,
prosecuting and maintaining any Patents, as may be mutually agreed and in
protecting such Subject Technology IPR, and, in each case, to equally divide
the expenses thereof. Each of Fujitsu and AMD shall have the right to make,
have made, use and sell products and processes using the Subject Technology IPR
and to license such Subject Technology IPR without restriction or accounting to
the other party unless otherwise mutually agreed upon in writing, except that
neither Fujitsu nor AMD shall assign its ownership interest in any Subject
Technology IPR to a third party without the prior written consent of the other
party.
Section 7.4. Where any technology included in the Subject
Technology IPR is developed independently hereunder by either party hereto,
without use of the Confidential Information of the other party, in the course
of development and design work conducted in accordance with the terms of this
Agreement, the ownership and the right to file for a Patent for such technology
shall rest solely with the party developing such technology. All Other IPR and
Propriety Information in such technology shall be owned jointly by the parties,
shall be considered Subject Technology IPR and shall be subject to the
provisions of this Agreement regarding jointly owned Subject Technology IPR.
Pursuant to the Technology Cross-License and the Joint Venture License, each of
Fujitsu and AMD will grant to the other and the JV a license to such IPR
covering any such technology developed independently by such party and patented
by such party in accordance with this Section 7.4.
6
<PAGE> 9
Article 8. EXCHANGE OF INFORMATION AND CONFIDENTIALITY.
Section 8.1. During the term of this Agreement, Fujitsu and AMD
shall exchange their Confidential Information relevant to NVMs as necessary
(but only to the extent legally permitted) to enable the parties to cooperate
fully in developing NVMs.
Section 8.2. Except as expressly authorized by the other party
(including without limitation the exercise of the rights granted to a party
under this Agreement, the Technology Cross-License and the Joint Venture
License Agreement), each party agrees not to disclose, use or permit the
disclosure or use by others of any Confidential Information unless and to the
extent such Confidential Information (i) is not marked or designated in writing
as confidential and is provided for a purpose that reasonably contemplates
disclosure to or use by others, (ii) becomes a matter of public knowledge
through no action or inaction of the party receiving the Confidential
Information, (iii) was in the receiving party's possession before receipt from
the party providing such Confidential Information, (iv) is rightfully received
by the receiving party from a third party without any duty of confidentiality,
(v) is disclosed to a third party by the party providing the Confidential
Information without a duty of confidentiality on the third party, (vi) is
disclosed by the receiving party despite the exercise of the same degree of
care used by the receiving party to safeguard its own similar Confidential
Information, but the receiving party shall take all necessary steps to prevent
any further disclosure, (vii) is disclosed with the prior written approval of
the party providing such Confidential Information, or (viii) is independently
developed by the receiving party without any use of the other party's
Confidential Information. Information shall not be deemed to be available to
the general public for the purpose of exclusion (ii) above with respect to each
party (x) merely because it is embraced by more general information in the
prior possession of the receiving party or others, or (y) merely because it is
expressed in public literature in general terms not specifically in accordance
with the Confidential Information.
Section 8.3. In furtherance, and not in limitation of the
foregoing Section 8.2, each party agrees to do the following with respect to
any such Confidential Information: (i) exercise the same degree of care to
safeguard the confidentiality of, and prevent the unauthorized use of, such
information as that party exercises to safeguard the confidentiality of its own
Confidential Information; (ii) restrict disclosure of such information to those
of its employees, agents and sublicensees who have a "need to know"; and (iii)
instruct and require such employees, agents and sublicensees to maintain the
confidentiality of such information and not to use such information except as
expressly permitted herein. Each party further agrees not to remove or destroy
any proprietary or confidential legends or markings placed upon any
documentation or other materials.
Section 8.4. The foregoing confidentiality obligations shall
also apply to the contents of this Agreement.
Section 8.5. The obligations under this Article 8 shall not
prevent the parties from disclosing the Confidential Information or terms of
this Agreement to any government agency or body as required by law (provided
that the party intending to make such disclosure in such circumstances has
given the other party prompt notice prior to making such disclosure so that the
other party may seek a protective order or other appropriate
7
<PAGE> 10
wremedy prior to such disclosure and cooperates fully with such other party in
seeking such order or remedy).
Section 8.6. Notwithstanding anything else contained herein,
either party may disclose the catalog specifications generated under Section
5.3(a) to its potential customers.
Section 8.7. The obligations under this Article 8 shall apply
with respect to any Confidential Information for a period of [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] from the date of disclosure of such Confidential Information to the
receiving party unless, with respect to any particular Confidential
Information, the providing party in good faith notifies the receiving party
that a longer period shall apply, in which case the obligations under this
Article 8 with respect to such Confidential Information shall apply for such
longer period.
Article 9. USE OF PROPRIETARY INFORMATION AND COMMINGLED
TECHNOLOGY.
Section 9.1. The parties hereto agree that each party shall
have the right to freely use for internal purposes, in accordance with
the provisions of Article 8, the Proprietary Information and Other IPR received
from the other party. Neither party will knowingly transfer to a third party the
distinct and independent Proprietary Information or Other IPR received from the
other party, except as necessary to exercise the rights granted to a party under
this Agreement, the Technology Cross-License and the Joint Venture Agreement.
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION].
Section 9.2. Notwithstanding anything else contained herein,
Fujitsu and AMD each hereby grants [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
Article 10. THIRD PARTY CLAIM.
In the event any claim or action is brought against one party
based upon information received from the other party or the Subject Technology,
the party against whom the claim or action is brought shall defend at its sole
expense such claim or action and the other party shall render reasonable
support to such party.
Article 11. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS.
Section 11.1. Each party hereto represents and warrants to the
other party that it has the right, and will continue during the term of this
Agreement to have the right, to grant to or for the benefit of the other party
the rights and licenses granted hereunder in accordance with the terms of this
Agreement and such grant of rights and licenses does not, and will not during
the term of this Agreement, conflict with the rights and obligations of such
party under any other license, agreement, contract or other undertaking.
Notwithstanding Article 10, each party shall indemnify, hold harmless and
defend the other party against a breach by such party of this Section 11.1.
Section 11.2. Nothing contained in this Agreement shall be
construed as:
8
<PAGE> 11
(a) a warranty or representation by any of the parties hereto
or its Subsidiaries sublicensed hereunder as to the validity or scope of any
IPR, including Subject Technology IPR.
(b) conferring upon either party hereto or its Subsidiaries any
licenses, right or privilege under any patents, utility models, design patents,
copyrights, mask work rights or trade secrets except the licenses, rights and
privileges expressly granted hereunder; or
(c) a warranty or representation that any acts permitted
hereunder will be free from infringement of patents, utility models, design
patents, copyrights, mask work rights or trade secrets other than those under
which licenses, rights and privileges have been expressly granted hereunder; or
(d) an arrangement to bring or prosecute actions or suits
against third parties for infringement or conferring any right to bring or
prosecute actions or suits against third parties for infringement; or
(e) conferring any right to use in advertising, publicity or
otherwise, any trademark, service mark, trade name or their equivalent, or any
contraction, abbreviation or simulation thereof, of either party hereto or
their Subsidiaries sublicensed hereunder.
Section 11.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN,
NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS OR
OTHERWISE, CONCERNING ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES,
DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED
PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR
WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL
PROPERTY RIGHTS, AND NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED,
ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING IN ANY WAY
OUT OF THIS AGREEMENT OR ANY TECHNOLOGY, PRODUCTS, PROCESSES,
DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED
PURSUANT TO THIS AGREEMENT.
Article 12. TERM AND TERMINATION.
Section 12.1. Term. This Agreement shall become effective as of
the Effective Date and, unless and until terminated hereunder, shall continue
until the occurrence of a Transitional Event or termination of the Joint
Venture License Agreement, at which time this Agreement shall terminate.
Section 12.2. Termination. Termination of this Agreement may
result from the events listed below. Each party agrees to give prompt written
notice to the other party of the happening of any such event.
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<PAGE> 12
(a) In the event that the Joint Venture Agreement does not
become effective within one year from the date hereof, either party may
terminate this Agreement effective upon written notice to the other party.
(b) If any party hereto defaults in the performance of any
material obligation hereunder, the non-defaulting party may give written notice
thereof and the parties shall discuss the problem arising from such default in
good faith and seek to resolve such problem. If such default is not corrected
or otherwise addressed by the defaulting party to the satisfaction of the
non-defaulting party within ninety (90) days after the written notice of such
default, then the non-defaulting party may, in addition to any other remedies
it may have, terminate this Agreement by written notice. This Agreement shall
terminate on the thirtieth (30th) day after such notice of termination.
(c) Each party hereto may terminate this Agreement, by giving
written notice of termination to the other party at any time, upon or after:
(i) the filing by such other party of a petition in
bankruptcy or insolvency;
(ii) any adjudication that such other party is bankrupt or
insolvent;
(iii) the filing by such other party of any legal action
or document seeking reorganization, readjustment or arrangement of such other
party's business under any law relating to bankruptcy or insolvency;
(iv) the appointment of a receiver or bankruptcy trustee
for all or substantially all of the property of such other party;
(v) the making by such other party of any general
assignment for the benefit of creditors; or
(vi) the institution of any proceedings for the
liquidation or winding up of such other party's business or for the termination
of its corporate charter, provided, in the event such proceedings are
involuntary, the proceedings are not dismissed within ninety (90) days.
(d) If at any time during the term of this Agreement, (i) a
party incurs in one transaction or a series of related transactions a change in
ownership of more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of its capital stock, (ii) a party
consolidates with or merges with or into another corporation, partnership or
other entity, whether or not such party is the surviving entity of such
transaction, unless immediately after such consolidation or merger shareholders
of such party prior to the transaction continue to own more than [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of the outstanding shares of stock entitled to vote for the
election of directors of such new or surviving entity, or (iii) a party sells,
assigns or otherwise transfers all or substantially all of the business or
assets of such party relating to its semiconductor merchant market business to
a third party, the other party may terminate this Agreement upon thirty (30)
days' advance written notice to such
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<PAGE> 13
party, provided, in each case, that the terminating party must exercise
such right not later than one (1) year after receiving written notice from the
other party of such transaction.
(e) In the event that a third party (other than a bank,
insurance company or other financial or investment company or institution)
acquires greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership of either party and
either a position on the board of directors or a position of management in such
party, where such acquisition of ownership and management position or board
position in such party is judged by the other party after a careful
consideration to be detrimental to such other party, such other party may
terminate this Agreement upon thirty (30) days' advance written notice to such
party, provided that the terminating party must exercise such right not later
than one (1) year after receiving written notice from the other party of such
transaction.
(f) Either party hereto may terminate this Agreement upon
thirty (30) days' written advance notice to the other party where such party
ceases to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of the issued and outstanding
capital stock of JV.
(g) In the event that a change occurs in the management of one
party as a result of a proxy solicitation contest, which change is judged by
the other party after careful consideration to be detrimental to the affairs of
JV, the other party may terminate this Agreement upon thirty (30) days' written
advance notice to such party, provided that the terminating party must exercise
such right not later than one (1) year after receiving written notice from the
other party of such event.
Section 12.3. Effect of Termination.
(a) Except as provided in this Section 12.3, all rights and
obligations of the parties hereunder shall cease upon termination or expiration
of this Agreement, with the exception of the rights and obligations of the
parties under Articles 6, 8, 9, 10, 11, 12 and 13, and Sections 7.3 and 7.4,
which shall survive termination or expiration of this Agreement.
(b) Upon termination of this Agreement, Fujitsu and AMD shall
(i) continue to jointly own all the jointly-owned Subject Technology IPR, (ii)
if agreed to by the parties, cooperate in applying for, prosecuting and
maintaining any Patents, and protecting such IPR developed prior to termination
of this Agreement and equally dividing the expenses thereof, and (iii) have the
unlimited right to use and to license such IPR and the right to make, have
made, reproduce, modify, distribute, sell, lease or otherwise dispose of any
processes and products based upon or incorporating such IPR without restriction
or accounting to the other party unless otherwise mutually agreed upon in
writing, except that neither Fujitsu nor AMD shall assign its ownership
interest in such IPR to a third party without the prior written consent of the
other party.
Article 13. MISCELLANEOUS.
Section 13.1. Force Majeure. Neither party shall be liable for
failure to perform, in whole or in material part, its obligations under this
Agreement if such failure is
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<PAGE> 14
caused by any event or condition not existing as of the date of this
Agreement and not reasonably within the control of the affected party,
including, without limitation, by fire, flood, typhoon, earthquake, explosion,
strikes, labor troubles or other industrial disturbances, unavoidable
accidents, war (declared or undeclared), acts of terrorism, sabotage,
embargoes, blockage, acts of Governmental Authorities, riots, insurrections, or
any other cause beyond the control of the parties; provided, that the affected
party promptly notifies the other party of the occurrence of the event of force
majeure and takes all reasonable steps necessary to resume performance of its
obligations so interfered with.
Section 13.2. Assignment. Neither this Agreement nor any of
the rights and obligations created hereunder may be assigned, transferred,
pledged, or otherwise encumbered or disposed of, in whole or in part, whether
voluntary or by operation of law, or otherwise, by either party without the
prior written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the parties' permitted successors and assigns.
Section 13.3. Notices. All notices and communications
required, permitted or made hereunder or in connection herewith shall be in
writing and shall be mailed by first class, registered or certified air mail,
postage prepaid, or otherwise delivered by hand or by messenger, or by
recognized courier service (with written receipt confirming delivery),
addressed:
(a) If to FUJITSU, to:
Mail or Hand Delivery:
FUJITSU LIMITED
1015 Kamikodanaka, Nakahara-ku
Kawasaki-shi 211, JAPAN
Attn: Masaichi Shinoda
General Manager
Business Development Division
Electronic Devices
with a copy to:
Mail or Hand Delivery:
FUJITSU LIMITED
Marunouchi Center Bldg., 6-1
Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, JAPAN
Attn: Gen Iseki
General Manager, Legal Division
(b) If to AMD, to:
Mail:
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<PAGE> 15
Senior Vice President, Operations
Advanced Micro Devices, Inc.
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Attn: Gene Conner
Hand Delivery:
915 DeGuigne Drive
Sunnyvale, CA 94086
U.S.A.
with a copy to:
Mail:
Mikio Ishimaru, Esq.
Director of Technology Law
Advanced Micro Devices, Inc., MS 68
P. O. Box 3453
Sunnyvale, CA 94088-3453
U.S.A.
Hand Delivery:
3625 Peterson Way
Santa Clara, CA 95054
U.S.A.
Each such notice or other communication shall for all purposes hereunder
be treated as effective or as having been given as follows: (i) if delivered
in person, when delivered; (ii) if sent by airmail, at the earlier of its
receipt or at 5 pm, local time of the recipient, on the seventh day after
deposit in a regularly maintained receptacle for the deposition of airmail; and
(iii) if sent by recognized courier service, on the date shown in the written
confirmation of delivery issued by such delivery service. Either party may
change the addresss and/or addressee(s) to whom notice must be given by giving
appropriate written notice at least seven (7) days prior to the date the change
becomes effective.
Section 13.4. Export Control. Without in any way limiting the
provisions of this Agreement, each of the parties hereto agrees that no
products, items, commodities or technical data or information obtained from a
party hereto nor any direct product of such technical data or information is
intended to or shall be exported or reexported, directly or indirectly, to any
destination restricted or prohibited by Applicable Law without necessary
authorization by the Governmental Authorities, including (without limitation)
the Japanese Ministry of International Trade and Industry, the United States
Bureau of Export Administration (the "BEA") or other Governmental Authorities
of the United States with jurisdiction with respect to export matters. Without
limiting the generality of the foregoing, each party hereto agrees that it will
not, without authorization from the
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<PAGE> 16
Office of Export Licensing of the BEA, knowingly export or reexport to a
destination outside of the United States General License GTDR technical data or
information of United States origin subject to this Agreement, or the direct
product thereof, or the product of a plant or major component of a plant that
is the direct product thereof, without first providing any applicable export
assurances to the exporting party.
Section 13.5. Arbitration.
(a) Any and all disputes arising under or affecting this
Agreement shall be resolved exclusively by confidential arbitration pursuant to
the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or
such other location agreed between the parties; provided, however, that the
arbitrators shall be empowered to hold hearings at other locations within or
without Japan. Each of the parties shall designate one arbitrator and the two
arbitrators so designated shall select the third arbitrator. Arbitration
proceedings shall be conducted in English with simultaneous translation into
Japanese. The judgment upon award of the arbitrators shall be final and
binding and may be enforced in any court of competent jurisdiction in the
United States or Japan, and each of the parties hereto unconditionally submits
to the jurisdiction of such court for the purpose of any proceeding seeking
such enforcement. Subject only to the provision of Applicable Law, the
procedure described in this Section 13.5 shall be the exclusive means of
resolving disputes arising under or affecting this Agreement.
(b) All papers, documents or evidence, whether written or oral,
filed with or presented to the panel of arbitrators shall be deemed by the
parties and by the arbitrators to be Confidential Information. No party or
arbitrator shall disclose in whole or in part to any other person any
Confidential Information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist counsel in the
arbitration or preparation for arbitration of the dispute. Confidential
Information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to
outside experts requested by either party's counsel to furnish technical or
expert services or to give testimony at the arbitration proceedings, subject,
in the case of such experts, to execution of a legally binding written
statement that such expert is fully familiar with the terms of this section,
that such expert agrees to comply with the confidentiality terms of this
section, and that such expert will not use any Confidential Information
disclosed to such expert for personal or business advantage.
Section 13.6. Entire Agreement. This Agreement, the Joint
Venture Agreement, the other Associated Agreements (as defined in the Joint
Venture Agreement), and the attachments and exhibits hereto and thereto, embody
the entire agreement and understanding between the parties with respect to the
subject matter hereof, superseding all previous and contemporaneous
communications, representations, agreements and understandings, whether written
or oral, including without limitation that certain Memorandum of Understanding
between Fujitsu and AMD dated July 13, 1992 and the Nondisclosure Agreements.
Neither party has relied upon any representation or warranty of the other party
except as expressly set forth herein, in the Joint Venture Agreement, and in
the Associated Agreements.
Section 13.7. Modification. This Agreement may not be modified
or amended, in whole or part, except by a writing executed by duly authorized
representatives of both parties.
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<PAGE> 17
Section 13.8. Announcement. The parties may announce the
existence of the parties' relationship and this Agreement at a time and in a
form to be mutually determined. Neither party shall unreasonably withhold its
consent to a time proposed by the other party.
Section 13.9. Severability. If any term or provision of this
Agreement shall be determined to be invalid or unenforceable under Applicable
Law, such provision shall be deemed severed from this Agreement, and a
reasonable valid provision to be mutually agreed upon shall be substituted. In
the event that no reasonable valid provision can be so substituted, the
remaining provisions of this Agreement shall remain in full force and effect,
and shall be construed and interpreted in a manner that corresponds as far as
possible with the intentions of the parties as expressed in this Agreement.
Section 13.10. No Waiver. Except to the extent that a party
hereto may have otherwise agreed in writing, no waiver by that party of any
condition of this Agreement or breach by the other party of any of its
obligations or representations hereunder shall be deemed to be a waiver of any
other condition or subsequent or prior breach of the same or any other
obligation or representation by the other party, nor shall any forbearance by
the first party to seek a remedy for any noncompliance or breach by the other
party be deemed to be a waiver by the first party of its rights and remedies
with respect to such noncompliance or breach.
Section 13.11. Governing Law. The validity, construction,
performance and enforceability of this Agreement shall be governed in all
respects by their laws of the State of California, U.S.A.
Section 13.12. Nature of Rights. Each party shall have the
rights licensed under this Agreement to the other party's technology and
related IPR when created, developed or invented, regardless of whether
physically delivered to such party. All rights and licenses granted under or
pursuant to this Agreement by a party ("licensor party") to the other party
("licensee party") are, for purposes of Section 365(n) of the U.S. Bankruptcy
Code (the "Bankruptcy Code"), licenses of "intellectual property" within the
scope of Section 101 of the Bankruptcy Code. The parties agree that the
licensee party, as a licensee of such rights under this Agreement, shall retain
and may fully exercise all of its rights and elections under the Bankruptcy
Code. The parties further agree that, in the event of the commencement of a
bankruptcy or insolvency proceeding by or against the licensor party, the
licensee party shall be entitled to a complete duplicate of (and complete
access to) any such intellectual property and all embodiments thereof. If not
already in the licensee party's possession, the licensee party has the right to
immediate delivery of such intellectual property and embodiments upon written
request of the licensee party (i) upon any such commencement of bankruptcy
proceedings, unless the licensor party or its representative or trustee elects
to continue to perform all of its obligations under this Agreement, or (ii) if
not delivered under clause (i) above, upon the rejection of this Agreement by
or on behalf of the licensor party.
Section 13.13. Tangible Property. The parties agree that the
tangible portion of the property delivered and to be delivered by AMD to
Fujitsu is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] and by Fujitsu to AMD is valued at
15
<PAGE> 18
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
Section 13.14. Language. This Agreement and the attachments
hereto are in the English language, which language shall be controlling in all
respects.
Section 13.15. No Agency or Partnership. This Agreement shall
not constitute an appointment of either party as the legal representative or
agent of the other party, nor shall either party have any right or authority to
assume, create or incur in any manner any obligation or other liability of any
kind, express or implied, against, in the name or on behalf of, the other
party. Nothing herein or in the transactions contemplated by this Agreement
shall be construed as, or deemed to be, the formation of a partnership,
association, joint venture or similar entity by or among the parties hereto.
Section 13.16. Headings. The section and other headings
contained in this Agreement are for convenience of reference only and shall not
be deemed to be a part of this Agreement or to affect the meaning or
interpretation of this Agreement.
Section 13.17. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which shall
be deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives on the date set forth
above.
ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED
/s/ GENE CONNER /s/ HIKOTARO MASUNAGA
- - ----------------------------- --------------------------
By: Gene Conner By: Hikotaro Masunaga
Title: Senior Vice President, Title: Managing Director
Operations
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<PAGE> 19
ATTACHMENT A
TO
JOINT DEVELOPMENT AGREEMENT
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]
17
<PAGE> 20
ATTACHMENT B
TO
JOINT DEVELOPMENT AGREEMENT
Major Items of Subject Technology
1. Process Information
A. Basic Process Data
a) Design rule
b) Transistor parameters
c) Process parameters
d) Mask sequence, etc.
B. Manufacturing Specifications
a) Process flow
b) Process conditions for each unit process, etc.
C. Process Evaluation Data
a) Reliability data on interconnection materials, etc.
2. Device Design Information for Each JV Product
A. Product Specifications
a) Catalog specification
b) Device full specification (internal specification)
c) Architectural information
B. Design Data
a) Circuits diagrams
b) Transistor-level circuits
c) Mask layout data
d) Mask layout data supplemental information
e) Test specification (wafer sort)
f) Test program (wafer sort)
C. Device Evaluation Data
a) Functional test results of samples
b) Electrical characteristics of samples
c) Reliability data of samples
d) Control parameters and their tolerance
18
<PAGE> 21
ATTACHMENT C
TO
JOINT DEVELOPMENT AGREEMENT
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]
19
