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CONFIDENTIAL MATERIAL
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THE SECURITIES AND EXCHANGE COMMISSION
EXHIBIT 10.3
CONFIDENTIAL TREATMENT
PDF SOLUTIONS, INC. HAS REQUESTED
THAT THE MARKED PORTIONS OF THIS
DOCUMENT BE ACCORDED CONFIDENTIAL
TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
PROJECT: TOSHIBA -
**********************
YIELD IMPROVEMENT CONSULTING AGREEMENT
This Yield Improvement Consulting Agreement dated as of *************
(this "AGREEMENT") is entered into by and between Toshiba Corporation, a
corporation organized under the laws of Japan ("TOSHIBA") having its principal
place of business at 1-1 Shibaura 1-chome, Minato-ku, Tokyo 105-8001, Japan, and
PDF Solutions, Inc., a corporation organized under the laws of California
("PDF") having its principal place of business at 333 West San Carlos Street,
Suite 700, San Jose, California, U.S.A.
RECITALS
A. PDF Solutions possesses technology and expertise useful in
discovering, analyzing, and fixing problems in the design and manufacturing
processes that cause low yields of useable integrated circuits.
B. Toshiba desires to engage PDF Solutions and receive a license
to certain technology useful to analyze its internal integrated circuit
manufacturing process, identify problems therewith, and recommend solutions
thereto, by way of methodology or otherwise, upon the terms and conditions
contained herein.
C. PDF Solutions desires to be so engaged upon the terms and
conditions contained herein.
DEFINITIONS
"Analysis" refers to all interpretations, recommendations, extractions,
statistical models or other yield and performance models developed by PDF
Solutions and derived in whole or in part from Toshiba's Raw Data; provided,
however, that Analysis does not include any information sufficiently detailed
that Raw Data could be feasibly re-constructed.
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"Characterization Vehicle" or "CV" refers to the parameterized layout structures
or circuit elements, specific implementations of said structures or circuit
elements either in computer format or layout format (for example, GDS-II files),
and images of said structures or circuit elements, historically or hereafter
created or customized by PDF Solutions for the purposes of creating a test
vehicle used to characterize any given manufacturing process. Manufacturing
Designs are usually referenced in the process of generating CVs for the purposes
of optimizing or tuning the vehicle to the targeted designs and process. The CV
is used to create a Mask Set which is used by the fabrication facility to
generate test wafers.
"Foundry" refers to any facility Toshiba owns or operates to manufacture
products and any third party foundry with which Toshiba has a relationship that
manufactures products for Toshiba.
"Manufacturing Designs" refers to all non-public information relating to
Toshiba's manufacturing processes and integrated circuit designs (structures and
elements) used in connection with the CV to generate Raw Data.
"Mask Set" refers to translucent glass plates used as a light filter to transfer
designs onto a wafer.
"Proprietary Rights" shall mean all intellectual property rights including, but
not limited to, patents, patent applications, copyrights, copyright
registrations, moral rights, mask work rights, rights of authorship, industrial
design rights, trademarks, tradenames, know-how and trade secrets, irrespective
of whether such rights arise under U.S. or international intellectual property,
unfair competition or trade secret laws.
"PDF Technology" refers to all historically, or hereafter developed
methodologies, techniques, software, designs, CVs, problem solving processes and
practices utilized by PDF Solutions, and any modifications, compilations or
works derivative of the foregoing, excluding know-how, methodologies, techniques
or practices that are commonly known or that Toshiba independently has the right
to use. PDF Technology also refers to the CV layout and the Design of
Experiments used in creating the CV layout.
"Raw Data" shall mean the data generated by PDF Solutions using the CV in
conjunction with Toshiba's Manufacturing Design.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the above recitals and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Toshiba and PDF
Solutions, intending to be legally bound, hereby agree as follows:
1. YIELD IMPROVEMENT SERVICES.
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1.1 PROVISION OF SERVICES. During the term of this Agreement, PDF will
provide to Toshiba development work and services with respect to integrated
circuit yield management issues. The services and the Deliverables to be
delivered as a result thereof (the "PROJECT") are described in detail on a
statement of work (the "STATEMENT OF WORK") attached hereto as Exhibit A. The
Statement of Work shall be governed by the terms of this Agreement, and
specifies:
(a) Deliverables. The specific deliverables (the "DELIVERABLES")
to be delivered under the Project and relevant milestones
for delivering the Deliverables;
(b) Team Structure. The team members from PDF and Toshiba who
are to work on the Project and the expected time
contributions for each such member;
(c) Tools. The required data, tools, hardware, software,
materials, access to personnel and facilities, and other
materials required for effectively completing the Project;
(d) Location. The geographic location where each component of
the Project will be completed;
(e) Fees and Expenses. The amount and structure of PDF's Fees
(as defined below) payable upon delivery of the Deliverables
and Expenses (as defined below).
1.2 TOSHIBA INTELLECTUAL PROPERTY. Toshiba will disclose to PDF on a
timely basis such Proprietary Rights (as defined in Section 3.1) and such other
data and materials as PDF shall reasonably require in order to perform the
Project and/or prepare the Deliverables as defined in the Statement of Work.
1.3 DELIVERABLES. In performing the Project, PDF shall develop and/or
make for Toshiba the Deliverables in accordance with any schedules set forth in
the Statement of Work. The Deliverables shall meet in all material respects the
description of the Deliverable (the "DELIVERABLE DESCRIPTION") set forth in the
Statement of Work.
1.4 ACCEPTANCE. Upon delivery of any Deliverable by PDF to Toshiba,
Toshiba shall examine the Deliverable to determine whether it reasonably
conforms to the Deliverable Description. If the Deliverable does not reasonably
conform to such Deliverable Description, Toshiba shall have fifteen (15) days
from the date of delivery thereof to reject such Deliverable and specify in
writing why it does not reasonably conform to such Deliverable Description. Upon
such rejection the parties shall work together to determine what needs to be
done to bring such Deliverable up to such Deliverable Description. If the
Deliverable does not meet the Deliverable Description, PDF shall exercise
reasonable efforts to correct promptly such nonconformity of the Deliverable
with the Deliverable Description and redeliver the Deliverable to Toshiba
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upon completion of such correction within one month following the parties'
agreement referenced in the preceding sentence but only if there are no
limitations outside of PDF's control. If there are limitations outside PDF's
control, PDF and Toshiba will negotiate in good faith a time for delivery of the
Deliverable. If a rejection of the Deliverable is not received by PDF within
fifteen (15) days after any delivery or redelivery of a Deliverable under this
Section 1.4, the Deliverable shall be deemed accepted. "ACCEPTANCE" (including
with correlative meaning the term "ACCEPT") shall mean any acceptance under this
Section 1.4. Toshiba agrees to deliver a notice of Acceptance (the "NOTICE OF
ACCEPTANCE") upon its decision to Accept any Deliverable hereunder within such
fifteen (15) days following such delivery or redelivery.
2. FEES AND EXPENSES.
2.1 SERVICES FEES AND EXPENSES. Upon delivery of each of the respective
Deliverables provided by PDF hereunder, Toshiba shall pay to PDF the fees
specified to the extent and in the manner set forth in the Statement of Work
("FEES"), and shall reimburse PDF for its out-of-pocket expenses incurred in
carrying out its obligations under this Agreement including, but not limited to,
travel, hotel, meal, document production, equipment and other expenses directly
related to the services performed hereunder further subject to the terms and
conditions set forth in the Statement of Work ("EXPENSES"). In no event shall
the Expenses for which Toshiba shall be liable hereunder exceed any limitation
on Expenses specified in the Statement of Work without written agreement from
Toshiba. PDF shall use reasonable and diligent efforts to deliver the
Deliverables hereunder within the estimated expenses and time schedule specified
in the Statement of Work.
2.2 PAYMENT OF INVOICES If required by applicable law, PDF shall pay any
taxes and assessments levied or imposed by any Japanese tax or other
governmental body resulting from the services or the Deliverables to be provided
by PDF to Toshiba and the payment to be made by Toshiba to PDF hereunder,
including without limitation all personal property taxes on any of the foregoing
and any taxes or amounts in lieu of any of the foregoing paid or payable by PDF,
other than taxes based on PDF's net income. Toshiba agrees that PDF Solutions or
PDF Solutions' designated representative will have the right to participate and
negotiate in all discussions with the appropriate tax authorities regarding
taxes to be paid by PDF Solutions in the process of determining the required tax
burden, if any. The parties acknowledge that PDF Solutions shall be obligated to
pay any such tax at the reduced withholding income tax rate rather than the
ordinary rate by filing "Application Form for Income Tax Convention between the
United States and Japan" with the Japanese tax authorities. If applicable,
Toshiba shall send PDF the application form immediately after the execution of
this Agreement for PDF's signature and PDF shall promptly sign it and return it
to Toshiba so that Toshiba may file it with the applicable Japanese tax
authorities on behalf of PDF.
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3. PROPRIETARY RIGHTS
3.1 OWNERSHIP. Toshiba and PDF Solutions acknowledge and agree that, as
between them, ownership shall be as follows:
(a) PDF Solutions is the exclusive owner of all PDF
Technology and all Proprietary Rights in the PDF Technology;
(b) Toshiba is the exclusive owner of all Analysis,
Manufacturing Designs, Raw Data and all Proprietary Rights in the Analysis,
Manufacturing Design and the Raw Data; and
(c) Toshiba is the exclusive owner of Mask Sets.
3.2 SOLELY DEVELOPED PROPRIETARY RIGHTS OWNERSHIP. Each party shall
solely own any Proprietary Rights solely developed by such party or the
employee(s) of such party, whether before, during or after the term of this
Agreement.
3.3 GRANT OF LICENSE BY PDF SOLUTIONS. Subject to the terms and
conditions of this Agreement, including the timely payment of Fees, PDF
Solutions hereby grants to Toshiba and its Subsidiaries, *********** license to
***** (as set forth in the Statement of Work), any PDF Technology and associated
Proprietary Rights disclosed by PDF Solutions under this Agreement, but only to
the extent PDF Solutions has the right to grant such license; provided that such
license is solely for the development, manufacture,fabrication and sale of all
Toshiba's semiconductor products associated with Toshiba's ******** Process. The
foregoing license includes all PDF Technology disclosed by PDF Solutions in its
work for Toshiba hereunder; provided, however, that specifically excluded from
this license of PDF Technology is any and all software or software tools used by
PDF in connection with or during the course of such services, or software
manuals and documentation relating to such software or tools. Notwithstanding
the foregoing, Toshiba shall not be limited to the ******** Process with respect
to PDF Technology that consists of methodologies or practices observed by
Toshiba personnel in the course of PDF Solutions' work hereunder. In particular,
Toshiba shall have the right to create any new CV, GDS-II and related software
for the purpose of tranferring to other semiconductor process than ********
Process by using PDF's know-how of CV and modifying CVs generated by PDF under
this Agreement ("**********"); provided that Toshiba shall not violate any PDF's
copyright or patent. In the event that Toshiba reasonably determines that there
is a possibility of violating PDF's copyright or patent in connection with the
modification of ************ to be implemented by Toshiba, Toshiba shall consult
PDF and PDF shall provide Toshiba with it views thereon and/or alternative
solutions to avoid such possible violation. Toshiba shall be bound by and shall
cause its sublicensees to be bound by the confidentiality obligations contained
in
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Section 6 or obligations at least as restrictive as the confidentiality
obligations contained in Section 6. Except as specifically provided herein,
Toshiba shall not disclose or license PDF Technology to any third party. Toshiba
understands that PDF Solutions will not disclose to Toshiba certain proprietary
methods or trade secrets in connection with the services to be rendered by PDF
Solutions hereunder. To this end, PDF Solutions retains the right to take
industry standard measures to keep such proprietary methods or trade secrets
from Toshiba, unless the same defeats or substantially impedes the Scope of
Services and Technology under this Agreement.
3.4 PDF SOLUTIONS SERVICES. PDF Solutions may do the following:
(a) to use, copy, compile, manipulate, analyze or
reproduce Raw Data and the Mask Sets solely for the purpose of performing under
this Agreement; and
(b) to use and rely upon Raw Data and Analysis for the
purpose of supporting Toshiba's yield ramp. PDF Solutions shall be bound by and
shall cause its sublicensees to be bound by the confidentiality obligations
contained in Section 6 or obligations at least as restrictive as the
confidentiality obligations contained in Section 6.
3.5 NO OTHER RIGHTS. Except as otherwise set forth in this Section 3,
neither this Agreement nor performance and delivery of the Services and
Technology shall give either PDF Solutions or Toshiba any ownership, interest
in, or rights to, the Proprietary Rights owned or provided by the other party.
3.6 DEFINITION OF SUBSIDIARY. For the purpose of this Agreement and the
Statement of Work, the term "SUBSIDIARY" of any party shall mean any corporation
or other entity more than fifty percent (50%) of the Voting Stock of which is
beneficially owned or controlled, directly or indirectly, by such party;
provided that such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists. "VOTING STOCK" of
any entity shall mean any stock or other equity interest entitled to vote for
the election of directors or any equivalent governing body of such entity.
Notwithstanding the above, *********************************
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**********.
4. TERM AND TERMINATION.
4.1 COMMENCEMENT. This Agreement shall commence as of the date first set
forth above and shall continue in force until completion of the Project, unless
sooner terminated as provided in this Section 4.
4.2 TERMINATION.
(a) If either party defaults in the performance of any material
obligation hereunder the non-defaulting party may give the defaulting party
written notice
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of such default within twenty (20) days following the non-defaulting party's
discovery of such default. If the defaulting party fails to cure such default
within forty-five (45) days (or such other time period as the parties shall
mutually agree) after the defaulting party's receipt of such notice of default,
then the non-defaulting party, at its option, may, terminate this Agreement by
giving the defaulting party written notice of termination of this Agreement
within ten days following the end of such 45-day period. If such notice of
default or notice of termination is not given within such period, then the
default shall no longer constitute cause for termination of this Agreement.
(b) Either party may terminate this Agreement effective upon
written notice to the other party in the event the other party becomes the
subject of a voluntary or involuntary petition in bankruptcy or any proceeding
relating to insolvency, or assignment for the benefit creditors, if that
petition or proceeding is not dismissed within sixty (60) days after filing.
Such written notice of termination must be delivered no later than ten (10) days
following the expiration of such 60-day period. If such notice of termination is
not given within such 10-day period, then the default shall no longer constitute
cause for termination of this Agreement.
(c) Either party may terminate this Agreement effective upon
written notice to the other party in the event that the other party is merged
with or into, or all or substantially all or the other party's assets are sold
to, a third party corporation or other entity, unless such acquiring corporation
or entity expressly agrees to assume the other party's obligations under this
Agreement. Such written notice of termination must be delivered no later than
ten (10) days following the consummation of such transaction. If such notice of
termination is not given within such 10-day period, then the default shall no
longer constitute cause for termination of this Agreement.
(d) Toshiba shall be entitled to terminate this Agreement
upon forty-five (45) days prior written notice if (i) Toshiba reasonably rejects
the Deliverables due to their material nonconformity with the Deliverable
Description set forth in the Statement of Work (and clearly and properly
specifies the reason for such nonconformity), the Acceptance procedure set forth
in Section 1.4 shall have been exhausted without an Acceptance, and PDF does not
reasonably cure such material nonconformity within forty-five (45) days
following the final written rejection of such Deliverable, or (ii) Toshiba
reasonably and in good faith judges that the expected progress for the services
to be performed by PDF necessary to deliver the Deliverables hereunder cannot be
achieved within the mutually agreed time frame, and within forty-five (45) days
following such notice PDF cannot reasonably establish that such progress can be
achieved. This Agreement may then be terminated by a written notice of
termination delivered within ten (10) days following the applicable foregoing
forty-five (45) day period. If such written notice of termination is not given
within such 10-day period, then the default under this Section 4.2(d) shall no
longer constitute cause for termination of this Agreement.
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4.3 TERMINATION OF RIGHTS. Upon expiration or termination of this
Agreement, all rights and licenses granted and all obligations undertaken
hereunder shall forthwith terminate except the following:
(a) Any and all licenses granted by PDF to Toshiba and its
Subsidiaries under this Agreement as to previously delivered, Accepted and paid
for Deliverables shall survive the expiration or termination of this Agreement
unless this Agreement is terminated by PDF in accordance with the provisions of
Section 4.2(a), (b) or (c) in which case none of such licenses shall survive and
all copies of such Deliverables shall be returned to PDF.
(b) If Toshiba terminates this Agreement for the reason as stated
in Section 4.2, Toshiba shall pay to PDF, within thirty (30) days after the date
of termination, (i) the actual amount of unreimbursed Expenses incurred by PDF
through the date of termination by Toshiba, (ii) the amount of the Deliverables
Fees with respect to Deliverables delivered or otherwise accrued, and unpaid
through the date of termination; provided that payment of such Fees and Expenses
shall be subject to the provisions of Section 2.
(c) If Toshiba terminates this Agreement for the reason specified
in Section 4.2, Toshiba shall pay to PDF:
(i) the amount of any unpaid Product Fees accrued prior to
the date of termination; and
(ii) the amount of any future Product Fees in accordance
with Paragraph (e)(iii) of the Statement of Work with respect to any Product
that incorporates any Deliverable delivered by PDF to Toshiba which Product Fees
shall be payable through the term of payment specified in such Paragraph
(e)(iii); provided that Product Fees to be accrued and paid following a date of
termination shall terminate only if the basis for termination of this Agreement
shall be (A) an involuntary bankruptcy under Section 4.2(b) or (B) the material
default under PDF's confidentiality obligations under Section 6 of this
Agreement;
provided that payment of such Product Fees under this Section 4.3(c) shall be
subject to the provisions of Section 2.
(d) The provisions of Sections 2 (including by reference
Toshiba's obligations to pay Fees and Expenses set forth in the Statement of
Work but subject to Section 4.3(b) and (c)), 3.1, 3.2, 3.4 (with respect to
Deliverables delivered by PDF to Toshiba and Accepted and paid for by Toshiba),
4, 6, 7, 8.4, 8.7 and 8.8 shall survive any expiration or termination of this
Agreement.
5. INDEPENDENT CONTRACTORS. The relationship of PDF and Toshiba established by
this Agreement is that of independent contractors, and nothing contained in this
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Agreement shall be construed to (i) give either party the power to direct or
control the day-to-day activities of the other, (ii) constitute the parties as
agents, partners, joint venturers, co-owners or otherwise as participants in a
joint or common undertaking, or (iii) allow either party to create or assume any
obligation on behalf of the other for any purpose whatsoever.
6. CONFIDENTIALITY. Except as otherwise provided herein, each party agrees, at
all times during the term of this Agreement and for ***** years after receipt of
Confidential Information, to hold in strictest confidence (and to cause its
Subsidiaries to hold in strictest confidence), and not to use, except for the
purposes contemplated herein, or to disclose to any person, firm or corporation
without written authorization of the other party, any Confidential Information
of the disclosing party. As used in this Agreement, "CONFIDENTIAL INFORMATION"
means any proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, yield data or other information disclosed by one
party to the other, which is marked as "Confidential," and/or orally or in other
tangible form identified as confidential at the time of disclosure and confirmed
as Confidential Information in writing within thirty (30) days of its initial
disclosure, provided that any methodologies, practices or procedures used by PDF
and observed by Toshiba shall constitute "Confidential Information" within the
meaning of this Agreement without any such notification. Confidential
Information does not include any of the foregoing items which have become
publicly known and made generally available through no wrongful act of the
receiving party, or which is already known by the receiving party as evidenced
by the receiving party's files immediately prior to such disclosure, or which
the receiving party proves was independently developed, prior to the receiving
party's receipt of such Confidential Information, by employees or other
representatives of such receiving party who have not had access to such
information or the ideas or theories underlying such Confidential Information.
Each party receiving Confidential Information of the other party agrees to limit
disclosure of Confidential Information to only those of its officers and
employees the receiving party considers necessary to complete its services
contemplated in this Agreement and then only after such officers and employees
have undertaken by Recipient under this Agreement. Except as otherwise agreed by
both parties, PDF shall return to Toshiba all Confidential Information of
Toshiba owned by Toshiba and not licensed to PDF or jointly owned by PDF and
Toshiba and copies thereof, within thirty (30) days after completion of the
Project or after expiration or termination of this Agreement. Except as
otherwise agreed by both parties, Toshiba shall return to PDF all Confidential
Information of PDF owned by PDF and not licensed to Toshiba or jointly owned by
PDF and Toshiba and copies thereof, within thirty (30) days after completion of
the Project or after expiration or termination of this Agreement.
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7. WARRANTY. PDF warrants to Toshiba that PDF's Intellectual Property utilized
by PDF in performing the Project does not infringe any patent, copyright, trade
secret, and any other proprietary rights of any third party. EXCEPT FOR THE
FOREGOING, NOTHING UNDER THIS AGREEMENT, OR THE STATEMENT OF WORK OR PROJECT
SHALL BE DEEMED TO BE A WARRANTY OR REPRESENTATION AS TO THE OUTCOME OF ANY
PROJECT OR THE EFFICACY OF ANY RECOMMENDATIONS MADE BY PDF. NOTHING UNDER THIS
AGREEMENT OR THE STATEMENT OF WORK SHALL BE DEEMED TO CREATE ANY LIABILITY ON
THE PART OF PDF WITH RESPECT TO THE OUTCOME OF A PROJECT OR ANY ACTIONS TAKEN BY
TOSHIBA AS A CONSEQUENCE OF PDF'S RECOMMENDATIONS.
8. MISCELLANEOUS.
8.1 AMENDMENTS AND WAIVERS. Any term of this Agreement or any Statement
of Work may be amended or waived only with the written consent by the
representatives of the parties.
8.2 SOLE AGREEMENT. This Agreement and the Statement of Work constitute
the sole agreement of the parties and supersede all oral negotiations and prior
writings with respect to the subject matter hereof.
8.3 NOTICES. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed sufficient upon receipt, when delivered
personally or by an internationally-recognized delivery service (such as Federal
Express or DHL), or after being deposited in the U.S. mail as certified or
registered mail with postage prepaid, if such notice is addressed to the party
to be notified at such party's address as set forth above or as subsequently
modified by written notice.
8.4 CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
8.5 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of this
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of this Agreement shall be enforceable in accordance with its other
terms.
8.6 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will constitute
one and the same instrument.
8.7 ARBITRATION. The parties shall attempt in good faith to resolve any
dispute
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arising under this Agreement. If the parties are unable to resolve dispute
within a reasonable period then the dispute shall be finally settled by binding
arbitration (a) if brought by Toshiba, in San Jose, California, in accordance
with the Commercial Rules of the American Arbitration Association and, (b) if
brought by PDF, in Tokyo, Japan in accordance with the rules of the
International Chamber of Commerce. In either case such arbitration shall be
conducted by one arbitrator appointed in accordance with said rules. The
arbitrator shall apply California law, without reference to rules of conflicts
of law or rules of statutory arbitration, to the resolution of any dispute.
Judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Notwithstanding the foregoing, the parties may
apply to any court of competent jurisdiction for preliminary or interim
equitable relief, or to compel arbitration in accordance with this paragraph,
without breach of this arbitration provision.
8.8 EXPORT CONTROL. Neither party shall, directly or indirectly export
or re-export any technical data or information or data received from the other
party hereunder or the direct products thereof to any destination prohibited or
restricted by export control regulations of Japan and the United States,
including U.S. Export Administration Regulations, without proper authorization
from the appropriate governmental authorities. In addition, the parties agree
that no technology furnished to the other will be used for any purpose to
develop and/or manufacture nuclear, chemical or biological weapons and/or
missiles.
8.9 NON-SOLICITATION. Toshiba shall not solicit or influence or attempt
to influence any person employed by PDF to terminate or otherwise cease his or
her employment with PDF or become an employee of Toshiba or any competitor of
PDF. A company's status as a competitor of PDF shall be determined by PDF in its
sole discretion.
8.10 PUBLICITY. Neither party shall disclose the terms of this Agreement
to any third party, or in any manner advertise or publish statements to such
effect, without the prior written consent and mutual agreement as to the
content, medium, and manner of the public announcement of the other party.
Customer agrees during the term to work in good faith with PDF Solutions to
produce mutually acceptable public announcements by PDF Solutions of PDF
Solutions' engagement with Customer under this Agreement. Notwithstanding the
above, should one of the parties be required to disclose either the existence or
terms of this Agreement to a court of law, a governmental agency, an auditor or
a bank, such party may do so without the prior written consent of the other
party provided that the disclosing party: (i) notifies the recipient of the
confidential nature of the information, (ii) requests confidential treatment of
such information, (iii) limits the disclosure to only such information as is
required under the circumstances, and (iv) delivers prompt notice to the other
party of such requested or actual disclosure.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first
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set forth above.
PDF SOLUTIONS, INC. TOSHIBA CORPORATION
By: /s/ John K. Kibarian By: /s/ Yasuo Morimoto
Name: John K. Kibarian Name: Yasuo Morimoto
Title: President Title: President & CEO,
Semiconductor Company
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EXHIBIT A
STATEMENT OF WORK
*******************
For
**************************
*********************************
This Statement of Work is made between PDF Solutions, Inc. ("PDF") and
Toshiba Corporation ("TOSHIBA") pursuant to and attached as an exhibit to that
certain Technology Cooperation Agreement dated as of ************** (the
"AGREEMENT") between PDF and Toshiba. All terms and conditions contained in this
Statement of Work are subject to the terms and conditions set forth in the
Agreement. The date of commencement of services under this Agreement was
************* (the "ENGAGEMENT COMMENCEMENT DATE").
PROJECT DESCRIPTION & GOALS
PDF Solutions agrees to provide Toshiba with *******************
services for Toshiba's ********************** technology development. Services
in support of this project are divided into two major components:
(1)******** ***************************
(2)******** **************************
(a) PROJECTS, DELIVERABLES AND FEE
Two sections are outlined below that review the project services.
The two sections each have Project Phases and Deliverables.
(1) ******** ******************* PROJECT (START DATE = ********)
Seven phases are included in this project;
(i) *******************************************
(ii) ******************************
(iii) **************************************
(iv) **********************
(v) ******************
(vi) *************************
(vii)******************************************
Five deliverables are included in this project;
(i) *****************************
(ii) ****************************
(iii)************** **************
(iv) *************************************
(v) ******** ************************
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(a) DESCRIPTION OF PHASES (START DATE : **********)
- -----------------------------------------------------------------------------------------------------------
PROJECT PHASE PDF SOLUTIONS WORK STEPS DURATION
- -----------------------------------------------------------------------------------------------------------
********** ***** ***
********** ***** ***
********** ***** ***
********** ***** ***
********** ***** ***
********** ***** ***
********** ***** ***
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(b) DELIVERABLES
- -----------------------------------------------------------------------------------------------------
DELIVERABLE DESCRIPTION PLANED DELIVER- QUARTERLY ESTIMATED
DELIVERY ABLE FEE *********** PERIOD OF
MONTH FEE ***********
FEE
- -----------------------------------------------------------------------------------------------------
********** ***** *** *** *** ***
********** ***** *** *** *** ***
********** ***** *** *** *** ***
********** ***** *** *** *** ***
********** ***** *** *** *** ***
********** ***** *** *** *** ***
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(2) ****************** PROJECT
Four major phases are included in this project;
(i) **********************************
(ii) *********************
(iii) ****************************************************
(iv) **********************************************************
Six deliverables are included in this project;
(i) *********************
(ii) *********
(iii) *********************
(iv) ***************
(v) **************** ***********
(vi) ********************************************************
(a) DESCRIPTION OF PHASES (START DATE : *********)
(i) ************************************PHASE (START DATE = **********)
- ------------------------------------------------------------------------------------------
PROJECT PHASE PDF SOLUTIONS WORK STEPS ESTIMATED DURATION
- ------------------------------------------------------------------------------------------
**********
(ii) ************************************PHASES (START DATE = **********)
- ------------------------------------------------------------------------------------------
PROJECT PHASE PDF SOLUTIONS WORK STEPS ESTIMATED DURATION
- ------------------------------------------------------------------------------------------
**********
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(iii) ************* ********** ******* ****** *********** (START DATE = *******)
- ------------------------------------------------------------------------------------------
PROJECT PHASE PDF SOLUTIONS WORK STEPS ESTIMATED
DURATION
- ------------------------------------------------------------------------------------------
**********
- ------------------------------------------------------------------------------------------
(iv) *********** ** ********** **** ** *********** **** ******* (START DATE = *********)
- ------------------------------------------------------------------------------------------
PROJECT PHASE PDF SOLUTIONS WORK STEPS ESTIMATED
DURATION
- ------------------------------------------------------------------------------------------
********** ************
- ------------------------------------------------------------------------------------------
**********
- ------------------------------------------------------------------------------------------
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(b) DELIVERABLES
- -----------------------------------------------------------------------------------------------------
DELIVERABLE DESCRIPTION PLANED DELIVER- ********* ESTIMATED
DELIVERY ABLE FEE *********** PERIOD OF
MONTH FEE ***********
FEE
- -----------------------------------------------------------------------------------------------------
**********
- -----------------------------------------------------------------------------------------------------
*1 : ******* *** ********* ******* *********** ** ******** *** ** **** ********
****** ***** ******** ******* *********** ******* ******** **** **** ****
*******.
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(b) TEAM STRUCTURE
The team is structured to divide the decision-making, project leadership
and analysis management between three bodies in the form of "TEAM STRUCTURE" in
the form attached to this Statement of Work as Exhibit C.
Toshiba will establish a Steering Committee (the "STEERING COMMITTEE")
which will consist of (a) ******************** and any other Toshiba manager who
is necessary in order for yield improvement decisions to be made, and (b)
****************** or another senior executive of PDF. The Steering Committee
will be limited to four representatives of Toshiba and one representative of
PDF. The Steering Committee will have sufficient authority to make the relevant
decisions concerning this Project. The Steering Committee is responsible for
giving the team its charter, deciding which yield improvement actions to take
and who in the Toshiba organization will be responsible for carrying out the
improvement.
Project leadership responsibility will be shared by *****************
(the "TOSHIBA PROJECT MANAGER") on behalf of Toshiba, and *******************
(the "PDF PROJECT MANAGER"), on behalf of PDF. Their primary responsibility will
be to ensure overall project status include delivery timing and the deliverables
of the work chartered by the Steering Committee. In order to maximize the
likelihood that the team is making good progress, the Project Managers will
monitor the team's work on a monthly basis and help reduce any organizational
obstacles which may impede the team's progress.
Technical responsibility will be shared by **************** for
************* project, **************** for *************** project,
**************** for ********* and others (the "TOSHIBA ENGAGEMENT MANAGER") on
behalf of Toshiba, and ************** ************************, ****************
for ******************* (the "PDF ENGAGEMENT MANAGER"), on behalf of PDF. Their
primary responsibility will be to ensure that the team is making good progress
toward delivery of the work. Engagement Managers will monitor the team's work on
a weekly basis and ensure the project from technical view point.
The day-to-day analyses will be conducted by a ******************* Team
("****") of engineers from Toshiba and PDF. A PDF Engagement Manager will manage
the activities of the ****. The PDF Engagement Manager will be responsible for
directing all team members in their analyses as well as aggregating and
synthesizing the results of all the analyses conducted by the entire team. In
addition, the Engagement Managers will be the principal point of contact for any
technical questions regarding the project.
Up to *************** Toshiba engineers will be asked to participate
actively with the ****. Toshiba team members should be assigned to **** and be
skilled at ********************************************************************.
Toshiba engineers will be placed on the Team after approval by PDF for the
purpose of gathering data and conducting analyses. The Toshiba team members will
work at the direction of the Engagement Managers.
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(c) TOOLS
Toshiba will provide PDF with office space and other reasonable and
customary business resources. In particular, Toshiba will provide PDF with
secure office space large enough to accommodate the required PDF personnel in
addition to the Toshiba engineers assigned to work on the ***. Toshiba will
provide PDF with office equipment reasonably requested by PDF from time to time
including **** international access telephones (including such analog lines as
PDF shall request), an international access Facsimile machine and line, and a
photocopier. Toshiba will provide PDF with 24-hour access to the team office so
work can continue at night and on weekends.
Toshiba will provide PDF with computing resources that PDF reasonably
deems necessary to conduct ********************. The details of such request
will be sent in a separate document to the Toshiba Engineering Manager but in
general, Toshiba will provide **** engineering workstations connected to both
the Toshiba network and the Internet. Toshiba will also provide such other
accessories as PDF shall reasonably request including, but not limited to, a
removable data storage device, such as a tape drive and a printer.
(d) LOCATION
The Project will be conducted by Toshiba's and PDF's personnel at
Toshiba's **********************************************************************
************, and PDF's facilities in San Jose, CA. In certain cases, PDF may
require Toshiba engineers to work at the PDF facility in San Jose, California.
PDF engineers may also work in ***** and **** factory when the engagement
manager believes this is necessary to achieve progress. If Toshiba shall provide
PDF employees with an English version of the employee rules and regulations in
force at the Toshiba facilities, then PDF employees shall comply with such rules
and regulations in all material respects in an equivalent manner as other
Toshiba employees generally. Any failure to comply with such rules and
regulations shall not constitute a default of a material obligation constituting
a basis for termination of this Agreement unless (A) Toshiba has repeatedly
given notices of such failure to PDF and PDF has repeatedly failed to remedy
such noncompliance as specified in such notices, (B) Toshiba shall notify PDF in
writing that failure to cure such repeated non compliance within 45 days shall
constitute a basis for termination of the Agreement and PDF shall fail to remedy
such non compliance, and (C) Toshiba gives final notice of termination within
ten (10) days following such 45 day period. PDF shall take all reasonable steps
necessary to ensure that all employees resident at or visiting a Toshiba
facility shall treat as confidential in accordance with Section 6 all material
information of a proprietary nature observed by or disclosed to such employee,
and shall comply in all material respects with the all export control
obligations contained in Section 8.8.
FEES AND EXPENSES.
Toshiba will pay PDF Fees consisting of three components: (1) the
*********** Fees and (2) the *********** Fees and (3) the ******* Fees, each as
defined below:
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(i) DELIVERABLE FEES. Toshiba will pay PDF a deliverable fee described in
each deliverable tables after each deliverable are provided to Toshiba
(the "DELIVERABLE FEES"). The payment will be made within thirty (30)
days of receipt of an invoice covering such Deliverable Fees.
(ii) ************************************************************************
(iii) ************************************************************************
EXPENSES.
Toshiba will reimburse PDF for all reasonable and customary Expenses
incurred by PDF in performing the services, delivering the Deliverables and
fulfilling its obligations under the Project. The Expenses will be billed to
Toshiba at PDF's cost and will not exceed an average of ******** per calendar
quarter without the written consent of Toshiba. PDF will submit to Toshiba
invoices specifying the Expenses and Toshiba will pay the Expenses within thirty
(30) days of the receipt of the invoice. Invoices will be submitted to Toshiba
no more frequently than a monthly basis. Payments of invoices for PDF's expenses
will be made in accordance with the provisions of Section 2.2 of the Agreement.
Notwithstanding the foregoing if PDF is entitled to receive reimbursement of the
same travel, lodging and other similar expenses from both Toshiba and other
customers, then PDF will allocate any expenses that are for the benefit of both
Toshiba and such other customers, among Toshiba and such other customers on a
basis that PDF shall determine is fair, just and equitable to Toshiba and such
other customers taking into account all relevant factors.
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