AMENDED AND RESTATED
WAFER FABRICATION AGREEMENT
by and between
ADVANCED MICRO DEVICES, INC.,
a Delaware corporation
and
VANTIS CORPORATION,
a Delaware corporation
dated as of
APRIL 21, 1999
AMENDED AND RESTATED
WAFER FABRICATION AGREEMENT
THIS AMENDED AND RESTATED WAFER FABRICATION AGREEMENT (the
"AGREEMENT"), is entered into as of this 21st day of April, 1999 (to be
effective as of the Closing Date, as defined below), by and between ADVANCED
MICRO DEVICES, INC., a Delaware corporation having its principal place of
business at One AMD Place, Sunnyvale, California 94086 ("AMD"), and Vantis
Corporation, a Delaware corporation having its principal place of business at
995 Stewart Drive, Sunnyvale, California 94088 ("VANTIS").
1. BACKGROUND
1.1. AMD. AMD is in the business of designing, manufacturing,
testing and selling semiconductor devices, among other products. AMD
manufactures certain semiconductor devices along submicron process lines
within AMD's plant located at 5204 East Ben White Boulevard, Austin, Texas
78741 ("[*]" and "[*]") and within AMD's Submicron Development Center located
at 915 DeGuigne Drive, Sunnyvale, CA 94088 (the "[*]") [*] are collectively
referred to herein as the "FACILITIES").
1.2. VANTIS. Vantis is in the business of designing, developing and
marketing CMOS programmable logic devices, field programmable gate arrays and
related software.
1.3. SCOPE OF AGREEMENT. AMD has historically fabricated semiconductor
devices for AMD's programmable logic business (the "BUSINESS") at the
Facilities. AMD has transferred the Business to Vantis. AMD has entered into an
agreement with Lattice Semiconductor Corporation ("LATTICE") pursuant to which
Lattice has agreed to purchase, and AMD has agreed to sell, the stock of Vantis
to Lattice (the "PURCHASE AGREEMENT," such transaction the "PURCHASE"). After
the Purchase, the parties desire to continue a fabrication relationship between
the Business and AMD. Specifically, Vantis desires to develop and sell
programmable logic semiconductor devices and AMD desires to fabricate such
semiconductor devices (the "WAFERS") at the Facilities.
1.4 PURPOSE OF AMENDED AGREEMENT. In connection with the Purchase, AMD
and Vantis have agreed to amend and restate, in this Agreement, the Wafer
Fabrication Agreement between them dated as of September 27, 1997, as amended,
to be effective as of the Closing Date (as defined in the Purchase Agreement),
so as to assure that during the term of this Agreement AMD will continue to
provide to Vantis, for the benefit of Lattice, wafer fabrication services
following the Closing (as defined in the Purchase Agreement).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
2. DEFINITIONS
2.1. "ACCEPTANCE CRITERIA" has the meaning specified in Article 7.3.2.
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2.2. "ANNUAL FORECAST" has the meaning specified in Article 9.1.
2.3. "BASE AMOUNT" has the meaning specified in Article 9.2.2.
2.4. "BASE WAFER PRICE" has the meaning specified in Exhibit E.
2.5. "BUSINESS" has the meaning specified in Article 1.3.
2.6. "CHANGE IN CONTROL" means, with respect to an entity: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the entity and its subsidiaries taken as a
whole to any Person or (ii) the consummation of any transaction (including
without limitation any merger or consolidation) the result of which is that any
Person becomes the direct or indirect "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) of more than 50% of
the voting stock of the entity.
2.7. "COMMERCIALLY REASONABLE EFFORTS" means such efforts taken by or
expected to be taken by a prudent commercial entity in the same or similar
business as the party being held to such standard, acting under like
circumstances.
2.8. "COMMITTED BUILD AMOUNT" has the meaning specified in Article 9.3.
2.9. "COMMUNICATION" has the meaning specified in Article 9.2.1.
2.10. "CONFIDENTIAL INFORMATION" has the meaning specified in Article
12.1.
2.11. "DEVICE" means any integrated circuit comprising [*].
2.12. "DIE" means one of the semiconductor devices on a Wafer.
2.13. "DIRECT COMPETITOR" of an entity means a Person who designs,
manufactures or sells products which compete with those designed, manufactured
or sold by the entity at the time of determination.
2.14. "[*] PROCESS" means any of the Processes commonly referred to as
[*].
2.15. "ENGINEERING WAFERS" has the meaning specified in Article 7.3.1.
2.16. "EXCESS CAPACITY LOSS" for any period means the amount equal to
(i) the aggregate Base Wafer Price of all Wafers comprising the Minimum
Purchased Capacity Amount of Wafers for such period MINUS (ii) the aggregate
Base Wafer Price of all Wafers comprising the Purchased Products for such
period; PROVIDED, that any such amount shall be reduced by the aggregate Base
Wafer Price of all Wafers comprising the Minimum Purchased Capacity Amount of
Wafers that would have been built for Vantis using the production capacity used
or filled by AMD in accordance with Article 5.2 or Article 9.2.4.
2.17. "EXCHANGE ACT" means the Securities Exchange Act of 1934.
2.18. "EXPECTED NET DIE PER WAFER" has the meaning specified in Exhibit
A.
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2.19. "EXPIRATION DATE" has the meaning specified in Article 13.1.
2.20. "[*]" has the meaning specified in Article 1.1.
2.21. "[*]" has the meaning specified in Article 1.1.
2.22. "FACILITIES" has the meaning specified in Article 1.1
2.23. "FORECASTED AMOUNT" has the meaning specified in Article
9.2.2(b).
2.24. "FORECASTED ANNUAL AMOUNT" has the meaning specified in Article
9.2.2(a).
2.25. "[*] OUT MINIMUM" means, for any [*], [*] of the
Forecasted Amount specified for such [*] in the Communication responding to
the Rolling [*] Forecast in which that [*] was the fourth full [*] of the
forecast.
2.26. "HOT LOT" means a Wafer fabrication lot processed at two-thirds
standard cycle time (as defined in Exhibit C).
2.27. "LONG-TERM COMMITTED CAPACITY AMOUNT" has the meaning specified
in Article 9.2.1(a).
2.28. "MAXIMUM CAPACITY AMOUNT" means, for any period, the aggregate of
the Maximum Fab Capacity Amount of all Facilities.
2.29. "MAXIMUM COMMITTED CAPACITY AMOUNT" means, for any Facility and
Process in 1999, 2000 and 2001, the amount of Wafers specified in any of those
years for such Facility and Process on Schedule 2.29.
2.30. "MAXIMUM FAB CAPACITY AMOUNT" means, for any period, the maximum
amount of Wafers that may be fabricated using all of AMD's wafer fabrication
production capacity at a particular Facility during such period.
2.31. "MINIMUM ANNUAL PURCHASED CAPACITY AMOUNT" means, for any
calendar year, the largest of the Next Year Minimum, Second Year Minimum and
Third Year Minimum for such calendar year.
2.32. "MINIMUM [*] PURCHASED CAPACITY AMOUNT" means, for any [*], the
largest of the [*] Minimums applicable to such [*]; PROVIDED, HOWEVER, THAT if
in any monthly Communication AMD states that a [*] Minimum previously applicable
to any [*] is waived, the Minimum [*] Purchased Capacity Amount for any such [*]
shall be calculated only with reference to the [*] Minimum contained in the
Communication from AMD for such [*] in lieu of the waived [*] Minimum(s)
previously applicable to such [*].
2.33. "MINIMUM PURCHASED CAPACITY AMOUNT" means, for any [*],
the Minimum [*] Purchased Capacity Amount, and for any [*], the Minimum [*]
Purchased Capacity Amount.
2.34. "MONTH" means an AMD fiscal month.
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2.35. "[*] MINIMUM" means, for any [*], the [*] Out Minimum, [*] Out
Minimum, [*] Out Minimum or [*] Out Minimum applicable to such [*].
2.36. "[*] OUT MINIMUM" means, for any [*], [*] of the Forecasted
Amount specified for such [*] in the Communication responding to the Rolling [*]
Forecast in which that [*] was the first full [*] of the forecast.
2.37. "NEXT YEAR MINIMUM" means, for [*], [*], for [*], [*] and for
[*], [*], of the Long-Term Committed Capacity Amount of Die specified for such
year in the Communication responding to the [*] Forecast in which that [*]
was the first [*] of the forecast.
2.38. "PERSON" means any individual, firm, sole proprietorship,
partnership, joint venture, trust, incorporated organization, association,
corporation, institution, public benefit corporation, entity, government
(whether federal, state, county, city, municipal or otherwise, including,
without limitation, any instrumentality, division, agency, body or department
thereof) or group (as such term is defined in Section 13(d)(3) of the Exchange
Act).
2.39. "PRICING PERIOD" has the meaning specified in Article 8.1.5.
2.40. "PRIOR LONG-TERM COMMITTED CAPACITY AMOUNT" has the meaning
specified in Article 9.2.2.
2.41. "PRIOR SHORT-TERM COMMITTED CAPACITY AMOUNT" has the meaning
specified in Article 9.2.2.
2.42. "PROCESS" means any semiconductor wafer, semiconductor die or
integrated circuit fabrication process owned, licensed or developed by AMD. Each
Process is comprised of (a) all process flows, process steps, process conditions
(and modifications thereto) used to manufacture Wafers at the Facilities as well
as (b) all methods, formulae, procedures, technology and know-how associated
with such process flows, process steps and process conditions. The Processes do
not and shall not include any methods, formulae, procedures, technology or
know-how licensed or received from Vantis under this Agreement or other existing
agreements between the parties or executed between the parties in the future,
unless otherwise agreed in writing.
2.43. "PROCESS FORECAST LEAD TIME" for any Process means [*] plus the
cycle time in days specified for such Process in Exhibit C as of the date of
determination.
2.44. "PRODUCTS" means the various types of Wafers and/or Die
fabricated at the Facilities pursuant to this Agreement using different
Processes and identified by unique series or product names or numbers. The list
of Products fabricated pursuant to this Agreement is set forth in Exhibit F,
which list shall be deemed to include, even if not expressly listed, all
Products which have been fabricated by AMD for Vantis from September 27, 1997 to
the date of this Agreement. Any additional products that the parties desire to
fabricate at the Facilities shall be determined by the mutual agreement of AMD
and Vantis. The parties acknowledge, however, that the final determination of
what Products shall be fabricated may depend on the results of joint development
and product qualification and shall be limited to Products to be sold in the
Business.
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2.45. "PRODUCT SPECIFIC HARDWARE" has the meaning specified in Article
7.8.1.
2.46. "PURCHASE" has the meaning specified in Article 1.3.
2.47. "PURCHASE AGREEMENT" has the meaning specified in Article 1.3.
2.48. "PURCHASE ORDER" means a [*] blanket purchase order for an
amount of Die equivalent to the Minimum [*] Purchased Amount of Die for the
next [*]placed by Vantis with AMD in accordance with Article 8.4.1, which
purchase order shall be for the convenience of the parties and shall not
constitute a request by Vantis to purchase Die and/or Wafers.
2.49. "PURCHASED PRODUCTS" means, for any period, Wafers and/or Die
delivered in such period by AMD to Vantis (and accepted by Vantis) pursuant to
Vantis Purchase Orders.
2.50. "RELATED AGREEMENTS" means this Agreement, the Amended and
Restated Assembly, Test, Mark and Pack Agreement by and between AMD and Vantis
dated as of April 21, 1999, the Amended and Restated Administrative Services
Agreement by and between AMD and Vantis dated as of April 21, 1999 and the
Amended and Restated Patent Cross License Agreement by and among AMD, Vantis and
Lattice dated April 21, 1999.
2.51. "REPURCHASED CAPACITY AMOUNT" means, for any [*] in which AMD
fails to supply the Committed Build Amount pursuant to Article 4.3.5, the
product of (x) [*] TIMES (y) [*].
2.52. "RISK PRODUCTION LOTS" has the meaning specified in Article
7.2.7.
2.53. "ROCKET LOT" means a Wafer fabrication lot processed at
one-and-one-half times theoretical cycle time (as defined in Exhibit C).
2.54. "ROLLING [*] FORECAST" has the meaning specified in Article 9.1.
2.55. "[*] OUT MINIMUM" means, for any [*], [*] of the Forecasted
Amount specified for such [*] in the Communication responding to the Rolling
[*] Forecast in which that [*] was the second full [*] of the forecast.
2.56. "[*] Minimum" means, for [*], [*] and for [*], [*] of the
Long-Term Committed Capacity Amount of Die specified for such [*] in the
Communication responding to the [*] Forecast in which that [*] was the [*] of
the forecast.
2.57. "SHORT-TERM COMMITTED CAPACITY AMOUNT" has the meaning specified
in Article 9.2.1(b).
2.58. "SUBSIDIARY" means any corporation, partnership, joint venture or
other legal entity whose ownership rights are 100% owned or controlled directly
or indirectly, by AMD or Vantis, as the case may be.
2.59. "TERM" has the meaning specified in Article 13.1.
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2.60. "TERMINATING [*]" has the meaning specified in Article 13.6.
2.61. "[*] OUT MINIMUM" means, for any [*], [*] of the Forecasted
Amount specified for such [*] in the Communication responding to the Rolling [*]
Forecast in which that [*] was the third full [*] of the forecast.
2.62. "[*] MINIMUM" means, for 2001, [*] of the Long-Term Committed
Capacity Amount of Die specified for such year in the Communication responding
to the Five Year Forecast in which that year was the third full calendar year of
the forecast.
2.63. "WAFERS" means the semiconductor wafers fabricated by AMD at the
Facilities for Vantis. Vantis agrees that the Wafers fabricated by AMD for
Vantis shall be utilized solely in the production of Programmable Logic Devices
for sale by Vantis and/or Lattice.
2.64. "WAFER SORT EQUIPMENT" means the Wafer sort testers and other
Wafer sorting equipment owned by Vantis and installed in the Facilities for
purposes of electrically testing individual Die or Wafers.
2.65. "WAFER SPECIFICATIONS" means the design and quality
specifications for Wafers contained in AMD Specification Nos. [*], as currently
in effect.
3. REPRESENTATIONS
3.1. REPRESENTATIONS OF AMD. In order to induce Vantis to enter into
this Agreement, AMD hereby represents and warrants that:
3.1.1 CORPORATE STATUS. (a) AMD is duly organized, validly
existing and in good standing under the laws of Delaware, (b) has the corporate
power to own or lease its assets and to transact the business in which it is
currently engaged and (c) is in compliance with all requirements of law except
to the extent that the failure to comply therewith shall not materially affect
the ability of AMD to perform its obligations under this Agreement.
3.1.2 CORPORATE AUTHORITY. (a) AMD has the corporate power,
authority and legal right to execute, deliver and perform this Agreement and has
taken as of the date hereof all necessary corporate action to execute this
Agreement, (b) the person executing this Agreement has actual authority to do so
on behalf of AMD and (c) there are no outstanding assignments, grants, licenses,
encumbrances, obligations or agreements, either written, oral or implied, that
prohibit execution of this Agreement.
3.2. REPRESENTATIONS OF VANTIS. In order to induce AMD to enter into
this Agreement, Vantis hereby represents and warrants that:
3.2.1 CORPORATE STATUS. Vantis (a) is duly organized, validly
existing and in good standing under the laws of Delaware, (b) has the corporate
power to own or lease its assets and to transact the business in which it is
currently engaged and (c) is in compliance with all requirements of law except
to the extent that the failure to comply therewith shall not materially affect
the ability of Vantis to perform its obligations under this Agreement.
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3.2.2 CORPORATE AUTHORITY. (a) Vantis has the corporate power,
authority and legal right to execute, deliver and perform this Agreement and has
taken as of the date hereof all necessary corporate action to execute this
Agreement, (b) the person executing this Agreement has actual authority to do so
on behalf of Vantis and (c) there are no outstanding assignments, grants,
licenses, encumbrances, obligations or agreements, either written, oral or
implied, that prohibit execution of this Agreement.
4. WAFER BUILD AND SUPPLY COMMITMENT
4.1. CAPACITY AND BUILD COMMITMENTS.
4.1.1 CAPACITY COMMITMENT. Subject to the terms and conditions set
forth in this Agreement, each [*] shall reserve capacity at the Facilities
sufficient to fabricate an amount of Die equivalent to the lesser of (a) the
Maximum Committed Capacity Amount of Die applicable to such [*], (b) the
Long-Term Committed Capacity Amount of Die for such [*] and (c) the Short-Term
Committed Capacity Amount of Die for such [*] determined in accordance with
the provisions of Article 9.2.
4.1.2 BUILD COMMITMENT. Each [*] AMD shall fabricate and deliver
to Vantis an amount of Die equivalent to the Committed Build Amount of Die for
such [*] determined in accordance with the provisions of Article 9.3.
4.2. ADDITIONAL CAPACITY. At the request of Vantis, AMD shall use
Commercially Reasonable Efforts to make production capacity at the Facilities
available to Vantis that is in addition to the production capacity necessary for
AMD to fabricate the Committed Build Amount of Die; PROVIDED, HOWEVER, that in
no event shall AMD be required by this Agreement to produce Wafers in any period
in excess of the Maximum Capacity Amount for such period.
4.3. FAILURE TO FABRICATE COMMITTED BUILD AMOUNT OF DIE.
4.3.1 FAILURE DUE TO AMD'S ERROR OR MISPROCESSING OF MATERIAL. In
the event that (a) AMD fails to fabricate the Committed Build Amount of Die
applicable to a specific [*] in the manner specified by this Agreement by the
end of such [*] or (b) AMD believes that it will be unable to fabricate the
Committed Build Amount of Die applicable to such [*] end of such [*],
and, in each case, such failure is due to AMD's error or misprocessing of
material, then AMD shall take the following measures:
First, AMD shall promptly describe the nature of the difficulty to
Vantis and provide a corrective action plan.
Second, AMD shall use Commercially Reasonable Efforts to remedy
the difficulty in an expeditious manner before the end of the second full [*]
following the Month in which AMD was unable to fabricate the Committed Build
Amount of Die.
Third, (a) with respect to any such failure affecting a Product
fabricated in [*], AMD shall use its best efforts and (b) with respect to any
deficiency affecting a Product fabricated in [*], AMD shall use Commercially
Reasonable Efforts, to make available during the above-referenced period
sufficient production capacity at the affected Facilities to cover the
difference between the Committed Build Amount of Die applicable to such period
and the
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amount of Wafers needed to make up the deficiency experienced in the previous
Month, including, but not limited to, allocating additional Hot Lot or Rocket
Lot capacity to Vantis without any additional charge or premium normally
associated with the provision of such capacity and making production capacity
available to Vantis that is in addition to the production capacity necessary for
AMD to fabricate the Committed Build Amount of Die applicable to such period.
Fourth, in the event that the above measures are insufficient,
Vantis may cancel or reallocate any outstanding orders for Wafers up to an
amount of Wafers equivalent to the deficiency experienced in the [*] of AMD's
failure; PROVIDED, HOWEVER, that the aggregate amount of any Wafers not
purchased as a result of such cancellation or reallocation of orders shall be
counted as Purchased Products when calculating the obligations of Vantis
pursuant to Article 5.1.2, if any, for the period in which the deficiency
occurred.
4.3.2 CONTINUAL FAILURE DUE TO AMD'S ERROR OR MISPROCESSING OF
MATERIAL. In the event that AMD fails to fabricate the Committed Build Amount of
Die for [*] consecutive [*], and, in each [*], such failure is due to AMD's
error or misprocessing of material, then (a) AMD shall use Commercially
Reasonable Efforts to find an alternative source of Wafers for Vantis'
forecasted needs and (b) Vantis may terminate this Agreement without liability
upon [*] prior written notice to AMD.
4.3.3 FAILURE DUE TO VANTIS. Notwithstanding anything contained in
this Article 4.3 to the contrary, in the event that AMD fails to fabricate the
Committed Build Amount of Die in any [*] due to (a) design defects caused by
Vantis, (b) design changes requested by Vantis, (c) process flow changes
requested by Vantis or (d) any other reason caused by Vantis, AMD shall only be
required to make reasonable efforts to fabricate the Committed Build Amount of
Die in such [*].
4.3.4 FAILURE DUE TO BOTH PARTIES. Notwithstanding anything
contained in Article 4.3.1, 4.3.2, 4.3.3 or 5.1 to the contrary, in the event
that AMD fails to fabricate the Committed Build Amount of Die in any [*] due
to difficulties caused jointly by Vantis and AMD, the parties shall each use
Commercially Reasonable Efforts to mutually agree in writing upon a fair and
equitable solution.
4.3.5 FAILURE BY AMD TO SUPPLY A PORTION OF THE CAPACITY COMMITTED
TO VANTIS. If at any time prior to June 30, 2001, AMD fails to supply the
capacity at the Facilities previously reserved for Vantis pursuant to Article
4.1.1 for any specific [*] as a result of (a) an intentional reallocation by AMD
of such reserved capacity to a Person, including AMD, other than Vantis (other
than in accordance with Article 9.2.4) or (b) an intentional act, omission or
failure to act by AMD intended to cause AMD to not comply with the standards
imposed on AMD in Article 7.8.2 of this Agreement, in each case such that AMD
fails to deliver the Committed Build Amount of Die applicable to such [*] by the
end of such [*], then AMD shall pay Vantis the Repurchased Capacity Amount.
Nothing set forth herein shall in any way limit AMD's obligation to maintain and
make available to Vantis the capacity set forth in this Agreement; PROVIDED,
HOWEVER, that the payment of the Repurchased Capacity Amount shall constitute
the sole remedy of Vantis, and the sole obligation of AMD, with respect to the
acts described in clauses (a) and (b) of this Article 4.3.5. The Repurchased
Capacity Amount for any
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[*] shall be paid by AMD to Vantis, in cash, not later than [*] from the due
date of the Vantis invoice therefor.
5. PURCHASE COMMITMENT; DISPOSITION OF EXCESS CAPACITY
5.1. PURCHASE OF DIE AND/OR FABRICATED WAFERS; MINIMUM PURCHASE
COMMITMENT; LIQUIDATED DAMAGES.
5.1.1 PURCHASE OF DIE AND/OR FABRICATED WAFERS. Each [*], Vantis
agrees to purchase from AMD an amount of Die and/or Wafers equal to the
Committed Build Amount of Die specified in the Communication from AMD to Vantis
for such [*].
5.1.2 MINIMUM [*] PURCHASED CAPACITY AMOUNT OF WAFERS; [*] EXCESS
CAPACITY LOSS. If during any [*] during the Term the aggregate number of
Purchased Products in such [*] is less than the Minimum [*] Purchased Capacity
Amount of Wafers for such [*] determined in accordance with Exhibit B, then
Vantis shall pay AMD, as liquidated damages, the Excess Capacity Loss for such
[*]. The Excess Capacity Loss for such [*] shall be paid by Vantis to AMD, in
cash, not later than [*] from the date of the AMD invoice therefor.
5.1.3 MINIMUM [*] PURCHASED CAPACITY AMOUNT OF WAFERS; [*]
EXCESS CAPACITY LOSS. If during any calendar year during the Term, or for 1999,
during the period specified in Exhibit B, the aggregate number of Purchased
Products in such calendar year or period is less than the Minimum Annual
Purchased Capacity Amount of Wafers for such calendar year or period determined
in accordance with Exhibit B, then Vantis shall pay AMD, as liquidated damages,
the Excess Capacity Loss for such [*] or period. The Excess Capacity
Loss for such [*] or period shall be paid by Vantis to AMD, in cash,
not later than [*] from the date of the AMD invoice therefor.
5.1.4 OFFSET AGAINST ANNUAL EXCESS CAPACITY LOSS. The [*]
Excess Capacity Loss, if any, payable by Vantis pursuant to Article 5.1.3 for
any [*] shall be offset by the [*] Excess Capacity Loss, if any, paid by
Vantis pursuant to Article 5.1.2 for each of the [*] in such [*].
5.2. DISPOSITION OF EXCESS CAPACITY. AMD shall use Commercially
Reasonable Efforts to sell excess production capacity to other customers or to
utilize such excess capacity for AMD's own readily suitable capacity needs in
accordance with Article 9.2.4.
6. WARRANTY
AMD warrants that Die and/or Wafers delivered hereunder will meet the
applicable specifications and shall be free from defects in material and
workmanship under normal use and service for [*] calendar months from shipment
from AMD. If, during such period (i) AMD is notified promptly in writing upon
discovery of any defect in the Die and/or Wafers, including a detailed
description of such defect, (ii) samples of such Die and/or Wafers are returned
to AMD; and (iii) AMD's examination of such Die and/or Wafers discloses that
such Die and/or Wafers are defective and such defects are not caused by
accident, abuse, misuse, neglect, improper installation, repair, alteration or
other action by someone other than AMD, improper testing or use contrary to any
instructions issued by AMD or Vantis, within a reasonable time, AMD shall,
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at AMD's sole option, either replace or credit Vantis for such Die and/or
Wafers. AMD shall return any Die and/or Wafers replaced under this warranty to
Vantis, transportation prepaid. The foregoing warranty constitutes AMD's
exclusive liability, and the exclusive remedy of Vantis, for any breach of any
warranty or other nonconformity of the Die and/or Wafers. Prior to any return of
Die and/or Wafers by Vantis pursuant to this Article 6, Vantis shall afford AMD
the opportunity to inspect such Die and/or Wafers at Vantis' location, and any
such Die and/or Wafers so inspected shall not be returned to AMD without its
prior written consent. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE
HEREBY EXPRESSLY DISCLAIMED.
7. FABRICATION AND PURCHASE AND SALE OF PRODUCTS
7.1. START OF PRODUCTION. Qualification testing for the Products shall
be conducted in the manner to be mutually agreed upon in writing by the parties.
Once any Product has been qualified, AMD shall begin mass production of such
Product in accordance with the Wafer Specifications for such Product.
7.2. PRODUCTION CONTROL.
7.2.1 OPERATION OF FACILITIES TO PERFORMANCE METRICS. Without
otherwise limiting its obligations hereunder, AMD shall operate the Facilities
in the production of Wafers in accordance with the performance metrics specified
in Exhibit C.
7.2.2 FAST TRACK COMMITMENT. As requested by Vantis from time to
time because of business needs and as otherwise reasonably agreed to by AMD, AMD
shall provide Vantis with expedited production cycle times ("HOT LOT" and
"ROCKET LOT" capacity) for engineering qualification and other expedited
production needs. AMD shall make available an aggregate of at least [*] Hot Lots
and at least [*] Rocket Lots at each Facility (other than [*]). Vantis shall
have the right to use a percentage of the Hot Lots available at each Facility
(other than [*]) equivalent to the percentage determined by dividing (a) the
Committed Build Amount of Wafers in the applicable Facility by (b) such
Facility's Maximum Fab Capacity Amount of Wafers (rounded down to the nearest
whole lot, but not less than one lot). Vantis shall have a right to use a
percentage of the Rocket Lots available at each Facility (other than [*])
equivalent to the percentage determined by dividing (x) the Committed Build
Amount of Wafers in the applicable Facility by (y) such Facility's Maximum Fab
Capacity Amount of Wafers (rounded down to the nearest whole lot, but not less
than one lot). In addition to the minimum commitments specified in this Article
7.2.2, AMD shall use Commercially Reasonable Efforts, based on then current
work-in-process, to meet Vantis' Hot Lot and Rocket Lot requirements.
7.2.3 WAFER PACKAGING; PRODUCT SHIPMENT. AMD shall package the
Wafers in accordance with AMD's packaging specifications set forth in AMD
Specification No. [*], as amended, supplemented or replaced by AMD from time to
time. Products which have completed the wafer fabrication and wafer sort
Processes and met all Acceptance Criteria shall be delivered to the custody of a
designated carrier pursuant to Article 8.3 within one business day of meeting
all Wafer Acceptance Criteria in accordance with AMD Specification Nos. [*], as
amended, supplemented or replaced by AMD from time to time.
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7.2.4 NOTIFICATION EVENTS. AMD shall promptly notify Vantis of the
following: (a) any issues known to AMD which will adversely affect AMD's ability
to fabricate the Committed Build Amount of Die in any period or otherwise
adversely affect performance and/or quality of the Products; (b) intended
changes to Processes or materials used to fabricate the Wafers, except to the
extent that minor changes may be made to such Processes, Acceptance Criteria or
related materials pursuant to AMD Specification Nos. [*], as amended,
supplemented or replaced by AMD from time to time; (c) intended changes in any
of the material suppliers which supply AMD with raw wafers, aluminum targets and
photomasks; and (d) intended closure of any Facility or cessation of all Wafer
fabrication activities at any Facility.
7.2.5 PREAPPROVAL RIGHTS. AMD shall not take any of the following
actions without the prior written approval of Vantis (which approval may not be
unreasonably withheld): (a) change any Processes or Acceptance Criteria, or
material used to fabricate the Wafers, except to the extent that minor changes
may be made to such Processes, Acceptance Criteria or related materials pursuant
to AMD Specification Nos. [*], as amended, supplemented or replaced by AMD from
time to time; (b) change any of the material suppliers which supply AMD with raw
wafers, aluminum targets and photomasks; (c) change any AMD Specification used
in connection with fabrication of the Wafers; and (d) change the Facility at
which a Product is fabricated. Vantis agrees to cooperate with AMD to use
Commercially Reasonable Efforts to approve changes which will result in improved
yields of Wafers and/or Products and/or reduced fabrication costs and which will
not materially adversely impact Product performance.
7.2.6 PRODUCT/DESIGN QUALIFICATION. AMD shall not commence
production of Products on new fabrication Processes or mask sets without
obtaining the prior qualification and release of such Processes and mask sets
from Vantis.
7.2.7 RISK PRODUCTION LOT STARTS. Prior to completion of full
qualification of fabrication Processes and/or mask sets for a particular
Product, Vantis may authorize AMD in writing to start fabrication of additional
Wafers for such Product ("RISK PRODUCTION LOTS"). Vantis shall bear, and pay to
AMD upon request, all costs and financial risk for Wafers from Risk Production
Lots which ultimately do not meet Wafer Acceptance Criteria; PROVIDED, HOWEVER,
that Vantis shall have no liability to AMD for Wafers from Risk Production Lots
which fail Wafer Acceptance Criteria because of a defect in material or
workmanship unrelated to implementation of the new fabrication Process and/or
mask sets.
7.3. ENGINEERING.
7.3.1 DEVELOPMENT ENGINEERING LOTS. At the request of Vantis, AMD
shall fabricate Wafers for use by Vantis in conducting engineering studies
("ENGINEERING WAFERS") subject to the maximum amount of Wafers that may be
fabricated using the wafer production capacity dedicated by AMD for conducting
such development engineering work. Prices for Engineering Wafers shall be as
specified in Article 8.1.4. Engineering Wafer lots shall be processed with
altered processing conditions specified by Vantis, and AMD shall not further
alter such processing conditions without prior written authorization from
Vantis. The cycle time for Engineering Wafer lots shall be as follows:
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(a) The cycle time for Engineering Wafer lots fabricated with
minor parametric variations or minor alterations in Process conditions
(e.g., "corner lots") shall be not more than [*] of the standard
production cycle time specified in Exhibit C.
(b) The cycle time for Engineering Wafer lots fabricated with
changes in Process flow or major alterations in Process conditions
shall be as agreed in each instance between the Parties.
Vantis shall bear, and pay to AMD upon request, all costs and financial
risk for Wafers from Engineering Wafer lots which ultimately do not meet
Acceptance Criteria; PROVIDED, HOWEVER, that Vantis shall have no liability to
AMD for Wafers from Engineering Wafer lots which fail Acceptance Criteria
because of a defect in material or workmanship unrelated to the altered
processing conditions specified by Vantis for such lots.
7.3.2 ACCEPTANCE CRITERIA; DELIVERY OF WAFERS TO VANTIS. Except
for Risk Production Lots and Engineering Wafer Lots contemplated by Article
7.2.7 and 7.3.1, every Wafer lot (and every Wafer where 100% testing is
required) shall meet the acceptance requirements documented in the sampling plan
specified in AMD Specification Nos. [*], as amended by AMD in writing (and as
approved by Vantis in writing pursuant to Article 7.2.5) or as supplemented or
replaced by Vantis in writing (and as approved by AMD in writing) from time to
time and all other AMD acceptance requirements which vary from the foregoing
specifications by Product number (the "ACCEPTANCE CRITERIA"). AMD shall not make
any exceptions to the Acceptance Criteria without written authorization from
Vantis. Vantis shall accept, and shall not have the right to reject, Wafers
delivered to Vantis by AMD which have passed the Acceptance Criteria.
7.3.3 CONTINUOUS YIELD IMPROVEMENT TEAM. AMD and Vantis shall each
designate one person to lead a Continuous Yield Improvement Team. The person
designated by Vantis shall be the team leader. The overall goal of the team
shall be to increase the Expected Net Die Per Wafer for each Product and
Process. Specific responsibilities of the Continuous Yield Improvement Team
shall include: setting yield targets by Product and monitoring progress toward
such yield targets; identifying and driving yield improvement opportunities by
Product and Process; establishing statistical process control targets for
critical Process parameters and ensuring performance remains within such
statistical control targets; and reporting continuous yield improvement progress
at the [*] Management Review Meeting.
7.3.4 COOPERATION CLAUSE. In the event of unusually high customer
returns of Product or other unspecified degradation of Product performance, AMD
and Vantis agree to cooperate to improve the manufacturability and yield of such
Product by (a) reviewing the fabrication process, including any AMD Processes
and AMD specifications and (b) proposing possible revisions to such Processes
and specifications.
7.3.5 WAFER LEVEL RELIABILITY TESTING. At least [*], AMD shall
conduct routine wafer level reliability testing at each Facility, including, but
not limited to, [*].
7.3.6 AMD PROVIDED ENGINEERING SERVICES. AMD shall provide
engineering services to the Facilities as necessary to maintain adequate
production capacity and consistent Wafer yield, Product and quality performance.
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7.4. INFORMATION ACCESS.
7.4.1 MANUFACTURING INFORMATION. AMD and Vantis shall consult and
cooperate to develop a mechanism to provide Vantis with daily electronic access
to all manufacturing, inventory, and engineering data related to the Wafers
manufactured in the Facilities pursuant to this Agreement. AMD shall provide
Vantis with a performance report of Wafer fabrication work in process at each
Facility for each Product weekly, including statistical process control data
relating to such work in process, the details to be as agreed upon by the
parties. To enable Vantis to track process control, AMD shall provide Vantis
with regular, at least quarterly, updates to forecasted, actual and estimated
parametric measurements and trends for each of the AMD manufacturing Processes
used to manufacture Wafers and/or Die for Vantis. Specific measurements and the
format of information to be provided shall be defined by the Continuous Yield
Improvement Team.
7.4.2 [*] MANAGEMENT REVIEW MEETING. Each [*] during the Term of
the Agreement, Vantis and AMD shall conduct a "[*] Management Review Meeting."
The purpose of the [*] Management Review Meeting shall be to review the
immediately preceding [*] performance relative to the metrics set forth in
Exhibit C, as well as discuss Vantis' future Wafer fabrication requirements.
7.4.3 RETENTION OF DOCUMENTS. In accordance with AMD Policy No.
[*], AMD shall retain all records, reports, logs, test data, calculations and
estimates generated in connection with fabrication of the Wafers for Vantis
pursuant to this Agreement. Upon termination of this Agreement, AMD shall
archive such materials in accordance with AMD Specification No. [*]. AMD shall
notify Vantis before destroying or otherwise disposing of such materials.
7.5. FACILITIES ACCESS.
7.5.1 ON SITE INSPECTION. Vantis representatives shall be allowed
to visit the Facilities during normal working hours upon at least three business
days' advance notice to AMD.
7.5.2 AUDITS. AMD shall allow Vantis to perform an audit of each
Facility [*] during the Term; PROVIDED, that AMD shall have received written
notice from Vantis at least [*] prior to the commencement of each such audit;
and provided further that each such audit shall be conducted during AMD's
regular business hours and without undue disruption of AMD's business. At the
request of Vantis, AMD shall allow customers of Vantis to perform audits of the
Facilities, subject to the mutual agreement of AMD, Vantis and such customer as
to the timing, scope and details of such an audit.
7.5.3 VANTIS RESIDENT ENGINEERS. Vantis shall have the right to
locate at the Facilities up to [*] resident engineers employed by Vantis,
mutually acceptable to both AMD and Vantis, to work cooperatively with AMD's
employees at the Facilities. AMD shall provide to such engineers, at the expense
of AMD: (i) office space located at the Facilities; and (ii) the ordinary
services, including, but not limited to, secretarial services (but not including
a reserved or exclusive secretary) provided to other similarly situated AMD
employees.
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7.6. SAFEGUARDING OF INVENTORY AND PHOTOMASKS. AMD shall use
Commercially Reasonable Efforts to safeguard against loss or damage to its
finished and unfinished Wafer inventory and any inventory of photomasks supplied
by Vantis for the manufacture of Wafers.
7.7. PHOTOMASK SUPPLY. Vantis shall bear all costs to produce the
initial photomask set to manufacture any Wafer or new photomasks to complete
design or process changes initiated by Vantis. Vantis may obtain photomasks
directly or through the AMD photomask procurement process specified in AMD
Specification [*], as amended, supplemented or replaced from time to time.
Vantis will bear all costs for replacement of photomasks damaged or worn during
production (except to the extent such damage results from AMD's negligence or
misconduct).
7.8. EQUIPMENT.
7.8.1 EQUIPMENT OWNERSHIP AND INSTALLATION. The parties
acknowledge and agree that AMD is the owner of the semiconductor wafer
fabrication equipment installed at the Facilities. The parties acknowledge and
agree that Vantis is the owner of (a) the Wafer Sort Equipment (including all
associated calibration and host computer systems) installed at the Facilities
and listed on Schedule 7.8.1(a) (as it may be amended from time to time to
reflect additions to or removals from service) and (b) the Product specific
hardware ("PRODUCT SPECIFIC HARDWARE"), installed or located at the Facilities
and listed on Schedule 7.8.1(b) (as it may be amended from time to time to
reflect additions to or removals from service) (collectively, the "VANTIS
EQUIPMENT"). Any Vantis Equipment installed at the Facilities shall be installed
in a manner satisfactory to AMD. The parties acknowledge and agree that the
Vantis Equipment installed at the Facilities as of the date of this Agreement
has been installed in a satisfactory manner.
7.8.2 AMD EQUIPMENT MAINTENANCE; CAPITAL PURCHASES. AMD shall be
responsible for (a) conducting routine maintenance and upkeep on its wafer
fabrication equipment and Vantis' Wafer Sort Equipment and (b) providing all
wafer fabrication equipment, and obtaining all raw materials and other supplies
necessary for the production of Wafers using any EE Process, required for AMD to
maintain production capacity necessary to fabricate the Committed Build Amount
of Die applicable to a specific period, including any capital equipment
purchases necessary to maintain adequate production capacity. AMD's routine
maintenance and upkeep shall be sufficient to ensure that the system
availability metrics listed in Exhibit C for Vantis' Wafer Sort Equipment are
met or exceeded.
7.8.3 VANTIS EQUIPMENT OWNERSHIP; MAINTENANCE; CAPITAL PURCHASES.
Vantis shall be responsible for (a) conducting routine maintenance and upkeep on
the Vantis Equipment, other than the Wafer Sort Equipment and (b) providing all
Vantis Equipment required for AMD to maintain production capacity necessary to
sort the Committed Build Amount of Die applicable to a specific period,
including any capital equipment purchases necessary to maintain adequate
production capacity. Vantis will bear all costs for replacement and repair of
Vantis Equipment damaged or worn during production (except to the extent such
damage results from AMD's gross negligence or misconduct). AMD shall not be
obligated to supply or maintain any Product Specific Hardware, including,
without limitation, load boards, DUT boards and device probe cards, that may be
necessary or desirable for AMD to fabricate the Committed Build Amount of Die
applicable to a specific period.
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7.9. PROCEDURES CONCERNING DELIVERY OF PHOTOMASKS AND WAFERS. Prior to
the delivery of photomasks to AMD by Vantis or Wafers and/or Die to Vantis by
AMD, Vantis shall have agreed upon specific procedures (or the absence of
specific procedures) for any such delivery with AMD operating personnel
responsible for such deliveries, which procedures may include, but shall not be
limited to, scheduling, warehousing and special handling requirements, if any.
8. WAFER PRICING, PAYMENT, SHIPPING AND PURCHASE ORDERS.
8.1. BASE WAFER PRICE.
8.1.1 STABLE SORT YIELDS. Notwithstanding anything to the contrary
contained herein, the parties acknowledge and agree that pricing and all
purchases of Products manufactured pursuant to Processes that have exhibited a
stable sort yield shall be made on a "per die" basis. Accordingly, the price of
sorted Die shall equal (x) the Base Wafer Price applicable to a Process (as
indicated on Exhibit E hereto), divided by (y) the Expected Net Die Per Wafer
for such Process (as indicated on Exhibit A hereto); provided, however, that the
price per die for the 1999 calendar year shall be as indicated on Exhibit F
hereto; and provided further, that if in 1999 a particular die price is not
identified on Exhibit F, then such price shall be determined using the formula
set forth in this Article 8.1.1.
8.1.2 SORT YIELDS NOT YET ESTABLISHED. The price of Wafers
manufactured pursuant to Processes for which an Expected Net Die Per Wafer has
not yet been established, but for which the defect density is following on the
expected defect density curve for such Process, shall equal the Base Wafer Price
applicable to such Process.
8.1.3 UNSTABLE YIELDS. The price of Wafers manufactured pursuant
to Processes which have not yet demonstrated stable yields shall be as agreed in
each instance between the parties.
8.1.4 ENGINEERING WAFERS. The price of Engineering Wafers shall be
as follows:
(a) The price of Engineering Wafers fabricated with minor
parametric variations or minor alterations in Process conditions (e.g.,
"corner lots") shall equal the Base Wafer Price applicable to the
Process pursuant to which such Wafers are fabricated.
(b) The price of Engineering Wafers fabricated with changes
in Process flow or major alterations in Process conditions shall be as
agreed in each instance between the parties.
8.1.5 EFFECTIVENESS OF WAFER PRICES. Expected Net Die Per Wafer
standards, Facilities performance metrics and Base Wafer Prices (as indicated on
Exhibits A, C and E, as amended, supplemented or replaced by the parties from
time to time) shall be in effect for a [*]-month period (the "PRICING PERIOD")
from the date of execution of any amendment to this Agreement attaching the
newly agreed standards, metrics and pricing terms during the Term. Once every
[*], commencing in the calendar [*] after the Closing, the parties shall proceed
to negotiate in good faith as to any modifications to the Expected Net Die Per
Wafer standards, Facilities performance metrics and Base Wafer Prices then in
effect. If the parties are unable to agree as to any modifications to the
standards, metrics and prices in effect during a Pricing
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Period before the end of such Pricing Period, the Expected Net Die Per Wafer
standards, Facilities performance metrics and Base Wafer Prices in effect on the
last day of such Pricing Period shall automatically become the Expected Net Die
Per Wafer standards, Facilities performance metrics and Base Prices in effect
for the next Pricing Period unless and until the parties otherwise agree.
8.1.6 COST REDUCTIONS ([*] OR MORE). Declines in the cost of a
Wafer which in the aggregate equal [*] or more of the cost of a Wafer applicable
immediately prior to implementation of the cost reducing improvement and
increases in the actual net die per Wafer which in the aggregate equal [*] or
more of the Expected Net Die Per Wafer then specified in Exhibit A, shall be
shared equally by AMD and Vantis. Vantis' share in any such Wafer cost
reductions or yield improvements shall be immediately reflected in a
corresponding decrease in the Base Wafer Price or a corresponding increase in
the Expected Net Die per Wafer.
8.2. PAYMENT TERMS. Vantis shall pay AMD the Base Wafer Price
applicable to each Purchased Product. All prices shall be quoted and invoices
shall be rendered and paid in United States currency. All invoices for Purchased
Products shall be accumulated by AMD for a given [*] and rendered to Vantis
within [*] of the end of such [*]. Each invoice shall be paid by Vantis no
later than the [*] day after receipt by Vantis of such invoice.
8.3. SHIPPING. Delivery of Wafers from AMD to Vantis shall be made
C.P.T. ("carriage paid to") the default shipping location for each Product
specified in AMD Specification [*], as amended, supplemented or replaced by AMD
from time to time, or any other destination identified by Vantis to AMD in
writing at least three days before delivery of the completed Die and/or Wafers
to the custody of a designated carrier. Title to the completed Die and/or Wafers
and risk of loss of, or damage to, the Die and/or Wafers shall pass to Vantis
upon delivery of the completed Die and/or Wafers to the custody of a designated
carrier.
8.4. PURCHASE ORDERS AND ACKNOWLEDGMENTS.
8.4.1 [*] PURCHASE ORDERS. At least two weeks before the end of
each [*], Vantis shall issue to AMD a blanket Purchase Order expressed in Die
equivalent to the Committed Capacity Amount of Die for the next [*] period. AMD
shall manufacture and ship against each Purchase Order. Each Purchase Order
shall indicate the then current Base Wafer Price and, if applicable, sorted Die
price for each respective Process.
8.4.2 ACCEPTANCE. All Wafers and/or Die manufactured and delivered
by AMD pursuant to Purchase Orders submitted by Vantis to AMD shall be counted
as Purchased Products when delivered by AMD and accepted by Vantis pursuant to
Article 7.3.2.
8.4.3 NO EFFECT ON THIS AGREEMENT. The terms of this Agreement
shall govern any sales contract between the parties for the sale and purchase of
the Wafers and/or Die. Any terms or conditions printed on the face or the
reverse side of a Purchase Order or Communication shall not be part of this
Agreement nor shall they constitute the terms and conditions of the sales
contract for the Wafers even in the event that such Purchase Order or
Communication is signed and returned by AMD to Vantis or Vantis to AMD.
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9. FORECASTS; ACCEPTANCE; COMMITTED BUILD AMOUNT.
9.1. DIE DEMAND FORECASTS.
9.1.1 ANNUAL FORECASTS. At least six Months before the end of each
AMD fiscal year, Vantis shall furnish AMD with a non-binding three-year forecast
plan of Vantis' Die and Wafer demand needs by Process, with [*] detail Wafer
demand for the first year and annual detail Wafer demand for each calendar year
(each an "ANNUAL FORECAST"). The existing Annual Forecast for calendar years
1999, 2000 and 2001 is set forth on Schedule 9.1.1. By [*] of each calendar
year, Vantis shall furnish AMD with a binding final update of the Annual
Forecast.
9.1.2 ROLLING [*] FORECASTS. At least the amount of time equal
to the applicable Process Forecast Lead Time prior to the end of each [*],
Vantis shall provide AMD with a rolling [*] forecast plan of Vantis' Die and
Wafer demand needs by Process, with [*] detail Die and Wafer demand for each [*]
("ROLLING [*] FORECAST"); PROVIDED, HOWEVER, that the Rolling [*] Forecast for
[*] is set forth on Schedule 9.1.2.
9.2. ACCEPTANCE OF FORECASTED DIE DEMAND AMOUNTS.
9.2.1 AMD COMMUNICATION OF COMMITTED CAPACITY AMOUNTS.
(a) At least [*] weeks before the end of each calendar year,
AMD shall send Vantis a written notification (a "COMMUNICATION") specifying for
each year in the updated Annual Forecast provided by Vantis by October 1 of such
year (1) for the years [*]: the amount of Wafers for each period in the Annual
Forecast that AMD commits to fabricate, determined in accordance with Exhibit B
(the "LONG-TERM COMMITTED CAPACITY AMOUNT") and (2) for the years [*]: the
amount of Wafers for each period in the Annual Forecast that AMD, on a
good-faith non-binding basis, is willing to fabricate. Any Communication
responding to an Annual Forecast shall be signed by AMD's Group Vice President,
Wafer Fabrication Group, or an officer of AMD holding similar functions.
(b) If for any year, the Long-Term Committed Capacity Amount
for such year determined in accordance with Exhibit B would exceed the Maximum
Committed Capacity Amount applicable to such year, (1) the Long-Term Committed
Capacity Amount for such year shall equal the Maximum Committed Capacity Amount
applicable to such year and (2) Vantis may request additional production
capacity from AMD in accordance with Article 4.2.
(c) Within three weeks of AMD's receipt of Vantis' Rolling
[*] Forecast, AMD shall send Vantis a Communication specifying for each [*] in
such updated Rolling [*] Forecast provided by Vantis, the amount of Die and/or
Wafers for each [*] in the Rolling [*] Forecast that AMD commits to fabricate,
determined in accordance with Exhibit B (the "SHORT-TERM COMMITTED CAPACITY
AMOUNT"). Any Communication responding to a Rolling [*] Forecast shall be signed
by AMD's Director of Strategic Planning or any other representative of AMD
authorized to sign such Communication on behalf of AMD.
(d) If for any [*], the Short-Term Committed Capacity Amount
for such [*] determined in accordance with Exhibit B would exceed the Maximum
Committed Capacity Amount applicable to such [*], (1) the Short-Term Committed
Capacity Amount for such [*]
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shall equal the Maximum Committed Capacity Amount applicable to such [*] and (2)
Vantis may request additional production capacity from AMD in accordance with
Article 4.2.
9.2.2 MINIMUM COMMITTED CAPACITY AMOUNTS.
(a) During the portion of the Term up to and including [*]:
The Long-Term Committed Capacity Amount for each year in any Communication
responding to a Annual Forecast shall not be less than the lower of (i) the
Maximum Committed Capacity Amount applicable to such year or (ii) the Long-Term
Committed Capacity Amount for such year specified by AMD in the Communication
responding to the immediately preceding Annual Forecast (the "PRIOR LONG-TERM
COMMITTED CAPACITY AMOUNT"); PROVIDED, HOWEVER, that if the forecasted die
demand amount for such year (the "FORECASTED ANNUAL AMOUNT") is less than the
lower of (I) the Maximum Committed Capacity Amount applicable to such year or
(II) the Prior Long-Term Committed Capacity Amount for such year, the Long-Term
Committed Capacity Amount for such year may be lower than the Maximum Committed
Capacity Amount applicable to such year or Prior Long-Term Committed Capacity
Amount, but in any event shall not be less than the Forecasted Annual Amount.
(b) During the portion of the Term up to and including [*]:
The Short-Term Committed Capacity Amount for each [*] in any Communication
responding to a Rolling [*] Forecast shall not be less than the lower of (i) the
Long-Term Committed Capacity Amount specified for such [*] in the Communication
responding to the Annual Forecast immediately preceding such Rolling [*]
Forecast (the "BASE AMOUNT") or (ii) the Short-Term Committed Capacity Amount
for such [*] specified by AMD in the Communication responding to the immediately
preceding Rolling [*] Forecast (the "PRIOR SHORT-TERM COMMITTED CAPACITY
AMOUNT"); PROVIDED, HOWEVER, that if the forecasted die demand amount for such
[*] (the "FORECASTED AMOUNT") is less than the lower of (I) the Base Amount for
such [*] or (II) the Prior Short-Term Committed Capacity Amount for such [*],
the Short-Term Committed Capacity Amount for such [*] may be lower than the Base
Amount or Prior Short-Term Committed Capacity Amount but in any event shall not
be less than the appropriate percentage of the [*] Minimum for such [*]
determined in accordance with Exhibit B.
(c) During the portion of the Term from and after [*]: The
Short-Term Committed Capacity Amount for each [*] in any Communication
responding to a Rolling [*] Forecast shall not be less than (i) the lower of the
appropriate percentage of the [*] Minimum for such [*] determined in accordance
with Exhibit B or (ii) the Prior Short-Term Committed Capacity Amount.
9.2.3 WAIVER OF PRIOR COMMITTED CAPACITY AMOUNTS.
(a) In the event that, in accordance with Article 9.2.2(a),
the Long-Term Committed Capacity Amount for a [*] specified by Vantis is less
than the Prior Long-Term Committed Capacity Amount for such year, AMD shall have
the right to waive the Prior Long-Term Committed Capacity Amount for such year
for purposes of calculating the Minimum Annual Purchased Capacity Amount of
Wafers applicable to such year. Any such waiver shall be contained in writing in
the Communication specifying the new Long-Term Committed Capacity Amount for
such year.
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(b) In the event that, in accordance with Article 9.2.2 (b)
or (c), the Short-Term Committed Capacity Amount for a [*] specified by Vantis
is less than the Prior Short-Term Committed Capacity Amount for such [*], AMD
shall have the right to waive the Prior Short-Term Committed Capacity Amount for
such [*] for purposes of calculating the [*] Minimum Quarterly Purchased
Capacity Amount of Wafers applicable to such [*]. Any such waiver shall be
contained in writing in the Communication specifying the new Short-Term
Committed Capacity Amount for such [*].
9.2.4 DISPOSITION OF EXCESS WAFER CAPACITY. If, after Vantis
delivers the latest Rolling [*] Forecast, a [*] Minimum applicable to any [*] is
lower than the [*] Minimum previously applicable to such [*], but AMD does not
waive the [*] Minimum for such [*] for purposes of calculating the Minimum [*]
Purchased Capacity Amount of Wafers applicable to such [*], AMD shall use
Commercially Reasonably Efforts to use, or cause to be used, the amount of
production capacity that AMD would need to maintain to fabricate a quantity of
Wafers equivalent to the difference between the [*] Minimum previously
applicable to such [*] and the latest [*] Minimum.
9.3. COMMITTED BUILD AMOUNT; MAXIMUM COMMITTED BUILD AMOUNT. AMD shall
set forth in each Communication responding to a Rolling [*] Forecast an amount
of Wafers equal to [*] of the [*] Minimum for the next [*] that AMD shall
fabricate (the "COMMITTED BUILD AMOUNT"). AMD shall not be under any obligation
to set forth in any Communication a Committed Build Amount for the next [*] in
excess of a Short-Term Committed Capacity Amount for such [*] specified in a
Communication responding to a prior Rolling [*] Forecast.
9.4. COOPERATION CLAUSE. If and when requested by AMD, Vantis shall use
Commercially Reasonable Efforts to submit its Die and/or Wafer demand needs to
AMD in a format which is compatible with AMD's Total Order Management ("TOM")
planning methodology.
10. SUPPLY EXCLUSIVITY
10.1. SUPPLY EXCLUSIVITY. During the Term AMD shall not, other than on
behalf of Vantis pursuant to this Agreement, use any EE Process to manufacture
Wafers for use in the production of Devices.
11. INTELLECTUAL PROPERTY; TRANSFER OF FABRICATION ACTIVITY; PROCESS
SHARING.
11.1. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITIES.
11.1.1 AMD'S MANUFACTURING RIGHTS. AMD warrants that it has all
necessary rights to manufacture and sell to Vantis the Wafers.
11.1.2 AMD'S INDEMNIFICATION OF VANTIS. AMD will, at its sole cost
and expense, indemnify, defend, and hold Vantis harmless from and against any
cost, loss, expense, or liability arising from any actual or alleged
infringement of any patent, mask work right, copyright, trademark, or other
intellectual property right to the extent such actual or alleged infringement
arises from AMD Processes.
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11.1.3 VANTIS' INDEMNIFICATION OF AMD. Vantis will, at its sole
cost and expense, indemnify, defend, and hold AMD harmless from and against any
cost, loss, expense, or liability arising from any actual or alleged
infringement of any patent, mask work right, copyright, trademark, or other
intellectual property right to the extent such actual or alleged infringement
arises from AMD's compliance with any of Vantis' designs, specifications,
instructions, or other contribution of Vantis to the design (or AMD's
manufacture or sale) of Wafers for (or to) Vantis. The foregoing indemnification
shall not apply to any liability arising prior to the Closing Date or to any
claims based on any act or omission occurring prior to the Closing Date.
11.1.4 INDEMNIFICATION PROCEDURE. The indemnifying party shall
defend, at its sole costs and expense, including attorneys' fees, any action
brought against the indemnified party alleging any such infringement, and the
indemnified party agrees (i) to give prompt notice of any such action to the
indemnifying party, (ii) to allow the indemnifying party, through competent
counsel of its choice (and personally acceptable to the indemnified party), to
defend such action, and (iii) to provide the indemnifying party all reasonable
information, assistance, and authority requested by the indemnifying party, at
the indemnifying party's expense, for the indemnifying party to defend such
action.
11.1.5 MITIGATION. In the event that an injunction is issued in
support of the infringement claim or the indemnified party otherwise reasonably
believes that the infringement claim is likely to be upheld: (a) the
indemnifying party shall, at its expense, use Commercially Reasonable Efforts to
avoid the infringement claim, either by modifying its technology and/or design
or by obtaining a license or nonassertion covenant from the claimant; (b) if
Vantis is the indemnified party, it shall have the right to return any allegedly
infringing Products to AMD and receive a full refund for the cost to Vantis of
the Die contained in such Products; and (c) if AMD is the indemnified party, it
shall have the right to stop production of any allegedly infringing Wafers by
giving written notice to Vantis, and Vantis shall pay AMD for all Wafers started
prior to such notice at the established purchase price (such purchase price to
be prorated based on the percentage of completion of such Wafers).
11.1.6 GENERAL. The foregoing Article 11.1 states the entire
obligation and the exclusive remedy of each party with respect to any alleged
infringement of intellectual property rights by any Wafer furnished under this
Agreement.
11.2. AMD INITIATED TRANSFER OF WAFER FABRICATION BETWEEN AMD
FACILITIES; SALE/SHUTDOWN OF A FACILITY.
11.2.1 AMD'S RIGHT TO TRANSFER. Subject to Article 7.2.5(d), AMD
may at any time transfer any portion of its wafer fabrication activity hereunder
from one Facility to another Facility.
11.2.2 RESPONSIBILITY FOR TRANSFER OF PROCESSES BETWEEN AMD'S
FACILITIES. If AMD initiates a transfer of any portion of its wafer fabrication
activity hereunder from one Facility to another Facility, AMD shall be
responsible for effecting the transfer of any Process associated with such
fabrication to the new Facility and otherwise implementing such Process in the
new Facility, and AMD shall bear [*] costs and expenses associated with such
transfer, including mask tooling expenses and Process and Product qualification
costs for Vantis' Products (including the cost of Wafers used in the
qualification process, assembly and test
[Confidential Treatment Request]
20
expenses related to qualifying Wafers and reliability expenses). AMD shall
provide Vantis engineering support [*] to assist Vantis in the Process and
Product qualifications related to such transfer and to otherwise assist Vantis
in the implementation in the new Facility of each Process transferred.
11.2.3 SALE OF A FACILITY. If AMD sells or otherwise transfers the
rights to operate a Facility to a third party (other than Lattice), an express
condition to the consummation of such transaction shall be the assumption by the
third party for the remaining Term of this Agreement of AMD's obligations under
this Agreement with respect to the Products fabricated in such Facility at the
time of consummation of such transaction, including without limitation AMD's
commitment to reserve capacity at such Facility sufficient to fabricate an
amount of Die equivalent to the Committed Capacity Amount of Die each [*]
relating to any affected Products. Vantis shall have the right to approve any
potential purchaser or operator of a Facility that is a Direct Competitor of
Vantis; PROVIDED, HOWEVER, that Vantis' approval of any such third party shall
not be unreasonably withheld.
11.2.4 CONTINUED SUPPLY OBLIGATION AFTER FACILITY SHUTDOWN. If AMD
elects to close any Facility or cease all Wafer fabrication activities at any
Facility, AMD remains subject to its obligations under this Agreement with
respect to any affected Products, including without limitation AMD's commitment
to reserve capacity at its other Facilities sufficient to fabricate an amount of
Die equivalent to the Committed Capacity Amount of Die each [*] relating to
any affected Products and AMD's obligation to fabricate and deliver to Vantis an
amount of Die equivalent to the Committed Build Amount of Die for each [*]
relating to any affected Products.
11.2.5 TRANSFER OF [*] PROCESS FROM [*] TO [*]. Pursuant to
Article 7.2.5(d), Vantis hereby approves the transfer of the [*] Process and
all related Product Wafer fabrication activities from [*] to [*]. In
accordance with Article 11.2.2, AMD shall be responsible for effecting the
transfer of the [*] Process associated with such fabrication to [*] and
otherwise implementing such Process in [*], and AMD shall bear all costs and
expenses associated with such transfer. AMD shall use Commercially Reasonable
Efforts to complete all Process and Product Qualifications related to such
transfer by December 31, 1999. Within one calendar quarter after the Month in
which all Process and Product Qualifications are completed in [*], the cycle
time in [*] shall be as specified in Exhibit C. Until completion of all [*]
Process and Product Qualifications in [*], the performance metrics specified
in Exhibit C for [*] shall continue to be effective and AMD shall continue to
reserve capacity at [*] sufficient to fabricate an amount of Die equivalent
to the Short-Term Committed Capacity Amount of Die each month relating to any
Products affected by the Transfer of the [*] Process from [*] to [*].
11.3. VANTIS INITIATED TRANSFER OF WAFER FABRICATION OUT OF AMD
FACILITIES.
11.3.1 VANTIS' RIGHT TO TRANSFER.
(a) [*] PROCESSES. Subject to Article 11.3.1(b), Vantis
may at any time designate a third party to fabricate on behalf of Vantis,
pursuant to [*] Processes, semiconductor wafers for which the designs,
specifications and working drawings for the wafers are furnished by, and
originate with, Vantis or were prepared by a contractor of Vantis on behalf
of Vantis, and
[Confidential Treatment Request]
21
such designs, specifications and working drawings are in sufficient detail that
no additional designing by the manufacturer is required other than adaptation to
the production processes and standards normally used by the manufacturer which
changes the characteristics of the wafers only to a negligible extent.
(b) AMD'S RIGHT TO APPROVE VANTIS TRANSFEREES.
(1) [*] AND LOWER PROCESSES. AMD shall have no right
to approve any third party designated by Vantis pursuant to Article
11.3.1(a) to fabricate semiconductor wafers pursuant to [*] Processes.
(2) [*] PROCESSES. Until September 30, 1999, AMD shall
have the right to approve any third party designated by Vantis pursuant
to Article 11.3.1(a) to fabricate semiconductor wafers pursuant to [*]
Process; PROVIDED, HOWEVER, that AMD's approval of any such third party
shall not be unreasonably withheld. Thereafter, AMD shall have no right
to approve any third party designated by Vantis to fabricate
semiconductor wafers pursuant to [*] Processes.
11.3.2 RESPONSIBILITY FOR TRANSFER OF PROCESSES INTO THIRD PARTY
FACILITIES (TRANSFER INITIATED BY VANTIS). In the event that Vantis enters into
a contract in accordance with Article 11.3.1(a) for the fabrication by a third
party of semiconductor wafers pursuant to [*], Vantis shall be responsible for
effecting the transfer of any Process associated with such fabrication to the
third party and otherwise implementing such Process in the third party's
fabrication facilities, and Vantis shall bear all costs and expenses associated
with such transfer, including the Process and Product qualification costs for
Vantis' Products; PROVIDED, that AMD shall have no obligation to make any
modifications to any Process in connection with implementation of any such
Process in a third party's fabrication facilities.
11.3.3 EFFECT OF TERMINATION ON TRANSFERRED PROCESSES. The
termination of this Agreement shall not affect the continued use of any Process
to fabricate wafers on behalf of Vantis implemented in, or being transferred to,
a third party's fabrication facilities at the time of such termination;
PROVIDED, that, upon termination of this Agreement, AMD shall not be obligated
to further assist Vantis with the transfer of any Process which is in the course
of being transferred into a third party's fabrication facilities at the time of
such termination.
12. CONFIDENTIAL INFORMATION
12.1. CONFIDENTIAL INFORMATION. Each party acknowledges that the
information disclosed in connection with any transactions between the parties,
including any transactions contemplated by the Related Agreements, may contain
confidential information, know-how and trade secrets of the disclosing party
("CONFIDENTIAL INFORMATION"), and that any such Confidential Information shall
remain the property of the disclosing party. A recipient party shall use
Commercially Reasonable Efforts to keep and hold any such Confidential
Information of the disclosing party in strict confidence as it would its own
similar Confidential Information and shall not disclose such Confidential
Information of the disclosing party to any Person without the prior written
consent of the disclosing party, except as provided herein. A recipient party
shall not, except as may be authorized by the disclosing party in writing or by
the express terms of any of the Related Agreements, use any Confidential
Information of the disclosing party
[Confidential Treatment Request]
22
except for the purpose for which it was disclosed in connection with the Related
Agreements. Notwithstanding the foregoing, no written information shall be
considered Confidential Information unless identified and marked as
confidential. Information disclosed orally or visually under circumstances
reasonably identifying such information as confidential shall be presumed to be
Confidential Information unless otherwise agreed in writing by both parties.
12.2. EMPLOYEES AND CONSULTANTS. A recipient party shall limit
dissemination of and access to any Confidential Information of the disclosing
party to those employees or consultants of the recipient party who have a good
faith need for such access to effectuate a transaction between the parties,
including any transactions contemplated by the Related Agreements, and who have
executed a standard nondisclosure agreement with the recipient party.
12.3. SURVIVAL. Each party agrees to maintain confidentiality in a
manner given to such party's own similar Confidential Information for two years
after the date of expiration or termination of the last of the Related
Agreements to expire or terminate.
12.4. SUBCONTRACTORS. The recipient party may disclose Confidential
Information to subcontractors performing services for the recipient party, to
the extent such disclosure is necessary to perform the recipient party's duties
in a transaction between the parties, including any transactions contemplated by
the Related Agreements. The recipient party shall cause its permitted
subcontractors to sign a confidentiality agreement with the recipient party in
substantially the same terms and conditions of this Article 12 prior to
disclosing Confidential Information of the disclosing party to such
subcontractors.
12.5. PERMITTED DISCLOSURE. Neither party shall have any obligation to
the other party with respect to any Confidential Information of the other party
or any portion thereof which:
(a) is or hereafter becomes publicly known through no wrongful act
of the first party;
(b) is rightfully received from a third party without restriction
on disclosure and without breach of this Agreement;
(c) is now or hereafter independently developed by the first party
and without reliance in any degree upon any Confidential Information of the
other party; or
(d) is revealed by the first party pursuant to a requirement of a
governmental agency or law, provided that the first party provides prompt
written notice of such requirement or law so as to afford the other party an
opportunity to intervene and oppose disclosure.
12.6. REMEDIES. The parties agree that any material breach of this
Article 12 shall cause irreparable injury and that, notwithstanding any dispute
resolution provisions herein to the contrary, injunctive relief in a court of
competent jurisdiction shall be appropriate to prevent either an initial or
continuing breach of such nondisclosure and confidentiality provisions herein in
addition to any other relief to which the owner of such Confidential Information
may be entitled.
12.7 RESIDUALS. Notwithstanding any other provision of this Agreement,
the recipient party shall be free to use Residuals for any purpose; PROVIDED
that the recipient party shall
23
maintain the confidentiality of Confidential Information as set forth herein.
For purposes hereof, "RESIDUALS" shall mean information retained in the unaided
memory of an individual who has had access to or worked with Confidential
Information, unless such individual has made a conscious attempt to memorize
such Confidential Information for purposes of applying this Article 12.7. The
foregoing shall not be deemed to grant to the recipient party a license under
the disclosing party's intellectual property.
13. TERM AND TERMINATION OF AGREEMENT
13.1. TERM; RENEWAL BY MUTUAL AGREEMENT. The term of this Agreement
(the "TERM") shall commence on the date first written above and expire at 11:59
p.m. on [*] (the "EXPIRATION DATE"), unless terminated earlier pursuant to
Article 13.2, 13.3, 13.4 or 13.5. Either party may, by written notice to the
other party delivered no earlier than [*] calendar months before the Expiration
Date, propose that the Expiration Date be extended on mutually agreeable terms,
unless terminated earlier pursuant to Article 13.2, 13.3, 13.4 or 13.5. This
Agreement shall terminate on the originally scheduled Expiration Date, unless
the parties agree in writing no later than [*] calendar months before the
Expiration Date upon the terms and conditions of such an extension of the
Expiration Date.
13.2. IMMEDIATE TERMINATION EVENTS. Either party may terminate or
suspend this Agreement immediately and without liability upon written notice to
the other party if any one of the following events occurs:
(a) the other party files a voluntary petition in bankruptcy or
otherwise seeks protection under any law for the protection of debtors;
(b) a proceeding is instituted against the other party under any
provision of any bankruptcy law which is not dismissed within ninety (90) days;
(c) the other party is adjudged bankrupt;
(d) a court assumes jurisdiction of all or a substantial portion
of the assets of the other party under a reorganization law;
(e) a trustee or receiver is appointed by a court for all or a
substantial portion of the assets of the other party;
(f) the other party becomes insolvent or ceases or suspends all or
substantially all of its business; or
(g) the other party makes an assignment of the majority of its
assets for the benefit of creditors.
13.3. TERMINATION UPON CHANGE IN CONTROL TO A DIRECT COMPETITOR. Within
5 days of the earlier of (a) the signing of definitive documentation relating to
a proposed Change in Control of Vantis or its ultimate parent entity or (b) the
consummation of a Change in Control of Vantis or its ultimate parent entity,
Vantis shall provide AMD with written notice of such event. Within 15 days of
the receipt of such notice, AMD may then immediately terminate this Agreement in
accordance with the provisions of Article 13.6 by providing Vantis with written
[Confidential Treatment Request]
24
notice of AMD's determination that the acquirer or proposed acquirer of Vantis
or its ultimate parent entity is a Direct Competitor of AMD.
13.4. TERMINATION FOR BREACH. Except as provided in Articles 4.3.2, 6
and 11.1.6, if AMD fails to perform or violates any material obligation of this
Agreement or Vantis fails to pay an invoice within [*] of the due date for such
invoice, then the parties shall first attempt in good faith to resolve such
breach pursuant to the dispute resolution process specified in Article 14.2.
Thirty days after delivery of written notice to the breaching party that a
breach described in this Article 13.4 has occurred, the non-breaching party may
terminate this Agreement without liability for such termination; PROVIDED, that
if the breaching party has begun substantial corrective action to remedy the
breach, the non-breaching party may only terminate this Agreement without
liability for such termination [*] days after delivery of its written notice to
the breaching party, if such breach remains uncured as of such date; PROVIDED,
HOWEVER, that if allowing [*] for the breaching party to cure the breach would
cause irreparable harm to the business prospects of the non-breaching party,
notwithstanding any dispute resolution provisions herein to the contrary,
temporary or preliminary injunctive relief in a court of competent jurisdiction
shall be appropriate to prevent either an initial or continuing breach in
addition to any other relief to which the non-breaching party may be entitled.
13.5. TERMINATION BY VANTIS ON [*] NOTICE. At any time, Vantis may
unilaterally terminate this Agreement, without liability, upon [*] prior written
notice to AMD.
13.6. RAMPDOWN UPON CERTAIN TERMINATION EVENTS. In the event that AMD
terminates this Agreement pursuant to Article 13.3 or Vantis terminates this
Agreement pursuant to Article 13.5:
(a) the Minimum [*] Purchased Amount applicable to the [*] in
which the notice of termination is received (the "TERMINATING [*]") shall remain
unchanged;
(b) the Minimum [*] Purchased Capacity Amounts applicable to the
[*] remaining in the Term (other than the Terminating [*]) shall be restated to
ramp down linearly from the Short-Term Committed Capacity Amount of Die in the
Terminating [*] as follows:
Minimum [*] Purchased Capacity Amounts as a Percentage of Short-Term
Committed Capacity Amount of Die in the Terminating [*]
[*] PERCENT
[*] [*]%
[*] [*]%
[*] [*]%
[*] [*]%
[*] [*]%
13.7. ADDITIONAL REMEDY OF AMD. In the event AMD terminates this
Agreement as provided in Article 13.2 or 13.4, AMD, upon written notice to
Vantis, may also declare immediately due and payable from Vantis, in whole or in
part, (a) all unpaid obligations, and prorated portions thereof, of Vantis to
AMD hereunder and (b) reimbursement for all reasonable
[Confidential Treatment Request]
25
direct costs and expenses incurred by AMD in connection with the termination of
work then in progress.
13.8. ADDITIONAL REMEDY OF VANTIS. In the event Vantis terminates this
Agreement as provided in Article 4.3.2, 4.3.5, 13.2, 13.4 or 13.5, Vantis, upon
written notice to AMD, may also remove the Wafer Sort Equipment from the
Facilities, on or after the termination of this Agreement, in its then "as is"
condition. Vantis shall be responsible to pay the reasonable cost to remove the
Wafer Sort Equipment from the Facilities and to return any affected portion of
the Facilities to good order (normal wear and tear excepted) and in a
structurally sound condition (and shall post a bond or deposit reasonably
adequate to do so, prior to commencing removal). Any immaterial components,
parts or items of the Wafer Sort Equipment which no longer exist at such time
shall no longer be considered part of the Wafer Sort Equipment.
13.9. SURVIVAL OF OBLIGATIONS. The following Articles shall survive any
expiration, termination or cancellation of this Agreement, and the parties shall
continue to be bound by the terms and conditions thereof: 10, 11, 12, 13.7, 13.8
and 13.9.
14. MISCELLANEOUS
14.1. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without reference to or
application of conflicts of law principles.
14.2. DISPUTE RESOLUTION. The parties shall attempt in good faith to
resolve any dispute arising out of or relating to this Agreement or the Exhibits
and Schedules attached hereto. In particular, those executives of the respective
parties who have authority to settle the controversy and have direct
responsibility for administration of the relationships established pursuant to
this Agreement shall attempt in good faith to negotiate a settlement pursuant to
the following process:
14.2.1 Any party having a dispute or claim shall give the other
party written notice stating the nature of the dispute in reasonable detail.
Within five business days after delivery of the notice, the receiving party
shall submit to the other a written response also in reasonable detail. Within
five business days after delivery of the written response, decisionmakers from
both parties shall meet (in person or by telephone) at a mutually acceptable
time and place (including telephonic conference), and thereafter as often as
they reasonably deem necessary, to attempt to resolve the dispute. All
reasonable requests for information made by one party to the other shall be
honored.
14.2.2 If the matter has not been resolved by the persons referred
to above within ten days of the first meeting of such persons, the dispute shall
be referred to more senior executives of each party who have authority to settle
the dispute and who shall likewise meet (in person or by telephone) to attempt
to resolve the dispute. Within five business days after the referral of the
dispute to more senior executives of each party, the senior executives of both
parties shall meet at a mutually acceptable time and place (including telephonic
conference), and thereafter as often as they reasonably deem necessary, to
attempt to resolve the dispute.
26
14.2.3 If the matter has not been resolved within ten days from
the referral of the dispute to such senior executives, then the parties may
pursue litigation or, if mutually agreed, alternative dispute resolution
mechanisms.
14.3. NO CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL
DAMAGES (INCLUDING LOST PROFITS) WHETHER BASED ON WARRANTY, CONTRACT, TORT OR
ANY OTHER LEGAL THEORY REGARDLESS OF WHETHER SUCH PARTY HAD ACTUAL OR
CONSTRUCTIVE NOTICE OF SUCH DAMAGES.
14.4. INJUNCTION. Either party may seek a preliminary injunction or
other preliminary judicial relief if, in its judgment, such action is necessary
to avoid irreparable damage.
14.5. ASSIGNMENT. Without the prior written consent of the other party,
which consent may not be unreasonably withheld, neither party, either
voluntarily or by operation of law, shall assign, transfer or otherwise dispose
of (collectively "Transfer") this Agreement in whole or in part; PROVIDED,
HOWEVER, that this Agreement may be Transferred (i) without the consent of a
party, to any subsidiary of the other party; (ii) without the consent of AMD, by
Vantis to Lattice, or any affiliate controlled by Lattice; (iii) without the
consent of Vantis, in connection with a Change in Control of AMD; and (iv)
without the consent of AMD, in connection with a Change in Control of Vantis or
its ultimate parent entity. Any attempted or purported Transfer of this
Agreement which does not comply with this Article 14.5 shall be null and void,
have no force or effect, and confer no rights upon any third parties. Subject to
compliance with the provisions of this Article 14.5, the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, assigns and Transferees.
14.6. PUBLIC ANNOUNCEMENTS. Neither party shall publicly disclose the
terms and conditions of this Agreement without first submitting the text of such
announcement to the other party and receiving the approval of the other party of
such text, which approval, unless public disclosure is required by a court or a
government agency, may be withheld for any reason. However, either party or
Lattice may disclose the existence and the terms of this Agreement (i) in a
registration statement or other document filed by either party or Lattice with
the Securities and Exchange Commission, (ii) in accordance with generally
accepted accounting procedures if required under the rules of the Securities and
Exchange Commission or National Association of Securities Dealers Automated
Quotation System or (iii) in connection with any confidential due diligence
necessary and associated with a financing, Change in Control or other
significant corporate transaction not in the ordinary course, and such
disclosure is reasonably required for the accomplishment of the transaction.
14.7. NOTICE AND COMMUNICATIONS. All notices and other communications
hereunder shall be in writing and shall be sent by personal delivery, by
telecopy, or by registered or certified mail (return receipt requested). Notice
shall be deemed to have been duly given (a) upon receipt if delivered
personally, (b) upon completion of the transmission if telecopied (with
confirmation from the sending device that the entire notice or other
communication was received by the addressee) or (c) upon execution of the return
receipt if mailed by registered or certified mail (return receipt requested); in
each case, the notice or other communication must be directed to the parties at
the following addresses (or at such other address for a party as shall be
specified
27
by like notice):
To AMD:
P.O. Box 3453
Sunnyvale, California 94088-3453
Attention: General Counsel
Facsimile: (408) 774-7399
To Vantis:
995 Stewart Drive
Sunnyvale, California 94088
Attention: Director of Legal Affairs
Facsimile: (408) 616-7800
With a copy to:
Lattice Semiconductor Corporation
5555 NE Moore Court
Hillsboro, Oregon 97124
Attention: General Counsel
Facsimile: (503) 268-8077
14.8. RELATIONSHIP OF THE PARTIES. At such time or times as AMD
directly or indirectly owns or controls less than 100% of the ownership rights
of Vantis: (i) AMD and Vantis shall be independent contractors and neither of
them shall be nor represent themselves to be the legal agent, partner or
employee of the other party for any purpose; (ii) neither party has the
authority to make any warranty or representation on behalf of the other party
nor to execute any contract or otherwise assume any obligation or responsibility
in the name of or on behalf of the other party; and (iii) neither party shall be
bound by, nor liable to, any third Person for any act or any obligation or debt
incurred by the other party, except to the extent specifically agreed to in
writing by the parties.
14.9. WAIVER. Failure by either party, at any time, to require
performance by the other party or to claim a breach of any provision of this
Agreement shall not be construed as a waiver of any right accruing under this
Agreement, nor shall it affect any subsequent breach or the effectiveness of
this Agreement or any part hereof, or prejudice either party with respect to any
subsequent action. A waiver of any right accruing to either party pursuant to
this Agreement shall not be effective unless given in writing.
14.10. SEVERABILITY. In the event that any provision of this Agreement
shall be unlawful or otherwise unenforceable, such provision shall be severed,
and the entire agreement shall not fail on account thereof, the balance
continuing in full force and effect, and the parties shall endeavor to replace
the severed provision with a similar provision that is not unlawful or otherwise
unenforceable.
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14.11. RIGHTS AND REMEDIES CUMULATIVE. Except to the extent expressly
set forth to the contrary in Articles 4.3.3, 4.3.5, 6, and 11.1.6 the rights and
remedies provided herein shall be cumulative and not exclusive of any other
rights or remedies provided by law or otherwise.
14.12. HEADINGS. The Article headings in this Agreement are for
convenience only, and shall not be considered a part of, or affect the
interpretation of, any provision of this Agreement.
14.13. NO THIRD-PARTY BENEFICIARIES. No Person not a party to this
Agreement, other than Lattice, shall have any rights under this Agreement as a
third-party beneficiary or otherwise other than Persons entitled to
indemnification as expressly set forth herein.
14.14. FORCE MAJEURE.
14.14.1 "Force Majeure" shall mean causes beyond the reasonable
control of a party, including, without limitation, acts of God; acts of a public
enemy; war; rebellion; insurrection; riot; epidemic; quarantine restrictions;
acts of any governmental authority or any political subdivision or any
department or regulatory agency thereof or entity created thereby; orders of any
court or arbitral body, acts of any Person or Persons engaged in subversive
activity or sabotage; fires, floods, explosions, storms, earthquakes, or other
catastrophes; strikes or labor disputes; embargoes; unavoidable delays or
inability to obtain equipment, labor, fuel, steam, water, electricity or
materials or anything else necessary to operate the Facilities.
14.14.2 In the event either party hereto is prevented or delayed
in the performance of any material term, condition or obligation under this
Agreement (other than the payment of money) due to Force Majeure, such party
shall give prompt notice to the other of the commencement, expected duration and
termination of any such Force Majeure contingency. Except as otherwise provided
below, such party's nonperformance shall be excused and the time for performance
extended for the period of delay or inability to perform due to such Force
Majeure.
14.14.3 Notwithstanding Article 14.14.2, whenever the total of all
periods of delay or inability to perform due to Force Majeure exceeds 30 days,
the party not failing to perform due to Force Majeure shall have the right to
either terminate this Agreement or continue to excuse the other's nonperformance
and extend the time for such party's performance for the period or periods of
any delay or inability to perform due to Force Majeure.
14.14.4 Any termination of this Agreement pursuant to this Article
14.14 shall be without liability to either party and, upon such termination, all
prior nonperformance of AMD, Vantis or both AMD and Vantis due to Force Majeure
shall be excused.
14.14.5 Whenever possible, the party claiming a Force Majeure
shall endeavor to use reasonable diligent efforts to perform in spite of the
Force Majeure.
14.15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and to this Agreement were upon the same instrument.
14.16. INTEGRATION. This Agreement sets forth the entire agreement and
understanding between the parties as to its subject matter and supersedes all
prior agreements, understandings
29
and negotiations, both written and oral, between the parties with respect
thereto. No amendments or supplements to this Agreement shall be effective for
any purpose unless executed in writing by the parties.
14.17. EXPORT CONTROL.
14.17.1 PRODUCTS AND TECHNICAL DATA. Each party hereby assures the
other that it shall not knowingly, without prior authorization of the Office of
Export Administration of the U.S. Department of Commerce, if required, export or
re-export (as defined in Section 779.1 (b)-(c) of the Export Administration
Regulations and any amendments thereto) technical data relating to this
Agreement or direct products thereof.
14.17.2 OTHER RESTRICTIONS. In exercising its rights under this
Agreement, each party agrees to comply strictly and fully with all other export
controls imposed on technology and products by any country or organization or
nations within whose jurisdiction each party operates or does business. Each
party agrees not to export or permit export of any technical data relating to
this Agreement or any direct product of any such technical data, without
complying with the export control laws in the relevant jurisdiction.
14.18. NO IMPLIED LICENSES. No licenses are granted hereunder by
implication, estoppel or otherwise. Each party may make reasonable references by
name to any other party in its advertising material relative to Wafers, provided
that the advance written consent of an authorized representative of the other
party has been obtained.
30
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first above written.
ADVANCED MICRO DEVICES, INC.
By: /s/ Richard Previte
------------------------
Name: Richard Previte
Title: President and Co-Chief
Operating Officer
VANTIS CORPORATION
By: /S/ Frank Barone
------------------------
Name: Frank Barone
Title: Acting President and Chief
Operating Officer
31
EXHIBIT A
[CONTENTS OF TABLE REDACTED]
EXHIBIT B
MINIMUM [*] PURCHASED CAPACITY AMOUNT
SHORT-TERM COMMITTED CAPACITY AMOUNT
MINIMUM ANNUAL PURCHASED CAPACITY AMOUNT
LONG-TERM COMMITTED CAPACITY AMOUNT
1) NOTE. For capacity planning purposes, Vantis' die demand will be
converted to equivalent Wafer demand using the current AMD NDW planning
yields by Product.
2) [*] TAKE OR PAY/SHORT-TERM COMMITTED CAPACITY AMOUNT. In accordance
with the terms of the Agreement, Vantis must purchase the following
amount of each Rolling [*] Forecast, and AMD must reserve the following
amount of capacity at the Facilities for each [*] in such forecast.
MONTHLY
SHORT-TERM COMMITTED
MONTH IN TAKE OR PAY PURCHASE OBLIGATION CAPACITY AMOUNT
FORECAST [*] MINIMUM (SHOWN AS A % OF
(SHOWN AS A % OF [*] ROLLING FORECAST) [*]MINIMUM)
---------- ---------------------------------------- ----------------------
M1
M2
M3 [CONTENTS OF TABLE REDACTED]
M4
M5
M6
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
EXHIBIT B (CONTINUED)
3) ANNUAL TAKE OR PAY/LONG-TERM COMMITTED CAPACITY AMOUNT. In accordance
with the terms of the Agreement, Vantis must purchase the following
amount of each Annual Forecast, and AMD must reserve the following
amount of capacity at the Facilities for each year in such forecast:
ANNUAL
TAKE OR PAY PURCHASE OBLIGATION
Minimum Annual LONG-TERM COMMITTED
Purchased Capacity CAPACITY AMOUNT
Operative Year in Amount (shown as a NOTE: ONLY OPERATIVE
Period Forecast % of Annual Forecast) [*]
- ----------- ---------- ----------------------- ----------------------------
(1)
[CONTENTS OF TABLE REDACTED]
- -----------------------------------
(1) Because of the anticipated time of effectiveness of the Agreement, this
percentage, instead of being a percentage of the total [*] Forecast for [*],
shall be a percentage of the aggregate amount of the Rolling [*] Forecast for
the period [*]. The Rolling [*] Forecast for the period [*] is attached to the
Agreement as Schedule 9.1.2.
[Confidential Treatment Request]
EXHIBIT C
MANUFACTURING PERFORMANCE METRICS
[*]
PROCESS YIELD (%)
[*] [*] [*]
---- ---- ----
[CONTENTS OF TABLE REDACTED]
CYCLE TIME (DAYS)
[*] [*] [*]
---- ---- ----
[CONTENTS OF TABLE REDACTED]
PERFORMANCE TO MIX*
[*] [*] [*]
---- ---- ----
[CONTENTS OF TABLE REDACTED]
* Based on current Perf-to-Mix methodology, TOM will have different baselines.
SORT EQUIPMENT AVAILABILITY
[CONTENTS OF TABLE REDACTED]
THEORETICAL CYCLE TIME (DAYS)
[CONTENTS OF TABLE REDACTED]
[Confidential Treatment Request]
SCHEDULE 7.8.1(a)
VANTIS WAFER SORT EQUIPMENT
INSTALL
ASSET # DESCRIPTION DT CAP BASE BOOK VALUE SERIAL #
- --------- -------------------------- --------- ---------- ------------ ----------
[CONTENTS OF TABLE REDACTED]
EXHIBIT E
BASE WAFER PRICE TABLE
[CONTENTS OF TABLE REDACTED]
WAFER SORT PRICE TABLE
[CONTENTS OF TABLE REDACTED]
SCHEDULE 2.29
Maximum Committed Capacity Amount
[*]
WAFER OUTS (K) [*] [*] [*]
-------------- ---- ---- ----
[CONTENTS OF TABLE REDACTED]
* Estimated by Vantis as of April 19, 1999
SCHEDULE 9.1.1
Existing Annual Forecast
[*]
WAFER OUTS (K) [*] [*] [*]
-------------- ---- ---- ----
[CONTENTS OF TABLE REDACTED]
(1)
- ---------------------------
(1): The Die Outs and Wafer Outs shown for [*] will be fabricated in [*] until
completion of all [*] Process and Product Qualifications in the SDC. Thereafter,
the Die Outs and Wafer Outs shown for [*] will be fabricated in the [*].
[Confidential Treatment Request]
SCHEDULE 9.1.2
Rolling [*] Forecast*
([*])
DIE OUTS (K) [*] [*] [*] [*] [*] [*]
------------ --------- --------- ---------- --------- --------- ---------
[CONTENTS OF TABLE REDACTED]
(1)
WAFER OUTS [*] [*] [*] [*] [*] [*]
---------- --------- --------- ---------- --------- --------- ---------
[CONTENTS OF TABLE REDACTED]
(1)
- ---------------------------
(1): The Die Outs and Wafer Outs shown for [*] will be fabricated in [*] until
completion of all [*] Process and Product Qualifications in the SDC. Thereafter,
the Die Outs and Wafer Outs shown for [*] will be fabricated in the [*].
[Confidential Treatment Request]
SCHEDULE 9.2.1
Existing Long-Term Committed Capacity Amount)
[*]
WAFER OUTS (K) [*] [*] [*]
-------------- ---- ---- ----
[CONTENTS OF TABLE REDACTED]
(1)
- ---------------------------
(1): The Die Outs and Wafer Outs shown for [*] will be fabricated in [*] until
completion of all [*] Process and Product Qualifications in the SDC. Thereafter,
the Die Outs and Wafer Outs shown for [*] will be fabricated in the [*].
[Confidential Treatment Request]
FIRST AMENDMENT TO
AMENDED AND RESTATED WAFER FABRICATION AGREEMENT
This FIRST AMENDMENT TO AMENDED AND RESTATED WAFER FABRICATION
AGREEMENT ("Amendment") is entered into as of the 24th day of September, 1999,
by and between ADVANCED MICRO DEVICES, INC., a Delaware corporation having its
principal place of business at One AMD Place, Sunnyvale, California 94088
("AMD"), and VANTIS CORPORATION, a Delaware corporation having its principal
place of business at 995 Stewart Drive, Sunnyvale, California 94088 ("Vantis").
Unless otherwise defined herein, capitalized terms used herein shall have the
respective meanings assigned to them in the Amended and Restated Wafer
Fabrication Agreement, dated as of April 21, 1999, by and between AMD and Vantis
(the "Wafer Fab Agreement").
RECITALS
A. AMD and Vantis entered into the Wafer Fab Agreement, whereby AMD
agreed to fabricate certain semiconductor devices for Vantis.
B. AMD and Vantis desire to amend certain terms of the Wafer Fab
Agreement.
AGREEMENT
Now, therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. AMENDMENT
a. EXPECTED NET DIE PER WAFER. The Expected Net Die Per Wafer set
forth on Exhibit A - Expected Net Die Per Wafer for the following devices: [*],
in the third and fourth fiscal quarters of 1999, shall be deleted in their
entirety and replaced with the Net Die Per Wafer set forth in the table below.
-------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER
WAFER
-------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
-------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
-------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[Confidential Treatment Request]
1
B. BASE DIE PRICE TABLE. The Base Die Price set forth on Exhibit F - Base Die
Price Table for the following devices: [*], in the third and fourth fiscal
quarters of 1999, shall be deleted in their entirety and replaced with the Base
Die Price set forth in the table below.
-------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE
PRICE ($)
-------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
-------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
-------------------------------------------------------------
[*] [*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
[*] [*]
-------------------------------------------------------------
c. REFERENCES WITHIN THE WAFER FAB AGREEMENT. Each reference in
the Wafer Fab Agreement to "this Agreement" and the words "hereof," "herein" and
"hereunder," or words of like import, shall mean and be a reference to the Wafer
Fab Agreement as amended by this Amendment.
2. MISCELLANEOUS
a. WAFER FAB AGREEMENT OTHERWISE NOT AFFECTED. Except as
expressly amended pursuant hereto, the Wafer Fab Agreement shall remain
unchanged and in full force and effect and is hereby ratified and confirmed in
all respects.
b. AMENDMENT AND WAIVERS. The provisions of this Amendment may
only be amended or waived in accordance with the terms of the Wafer Fab
Agreement.
c. SUCCESSORS AND ASSIGNS. The provisions of this Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
d. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and to this Amendment were upon the same instrument.
e. SEVERABILITY. In the event that any provision of this Amendment
shall be unlawful or otherwise unenforceable, such provision shall be severed,
and the entire agreement shall not fail on account thereof, the balance
continuing in full force and effect, and the parties shall endeavor to replace
the severed provision with a similar provision that is not unlawful or otherwise
unenforceable.
f. NO THIRD-PARTY BENEFICIARIES. No person not a party to this
Amendment shall have any rights under this Amendment as a third-party
beneficiary or otherwise other than persons or entities entitled to
indemnification as expressly set forth herein.
[Confidential Treatment Request]
2
g. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of California, without
reference to conflicts of law principles.
h. INTEGRATION. This Amendment sets forth the entire agreement and
understanding between the parties as to its subject matter and supersedes all
prior agreements, understandings and memoranda between the parties. No
amendments or supplements to this Amendment shall be effective for any purpose
except by a written agreement signed by the parties.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[Confidential Treatment Request]
3
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
ADVANCED MICRO DEVICES, INC.
By: /s/ Donald L. Bolin
-----------------------------------
Name: Donald L. Bolin
---------------------------------
Title: Director Planning
--------------------------------
VANTIS CORPORATION
By: /s/ Ronald F. Brandt
-----------------------------------
Name: Ronald F. Brandt
---------------------------------
Title: Vice President Engineering and
--------------------------------
Manufacturing
--------------
4
SECOND AMENDMENT TO
AMENDED AND RESTATED WAFER FABRICATION AGREEMENT
This SECOND AMENDMENT TO AMENDED AND RESTATED WAFER FABRICATION
AGREEMENT ("Amendment") is entered into as of the 18th day of February, 2000, by
and between ADVANCED MICRO DEVICES, INC., a Delaware corporation having its
principal place of business at One AMD Place, Sunnyvale, California 94088
("AMD"), and VANTIS CORPORATION, a Delaware corporation having its principal
place of business at 995 Stewart Drive, Sunnyvale, California 94088 ("Vantis").
Unless otherwise defined herein, capitalized terms used herein shall have the
respective meanings assigned to them in the Amended and Restated Wafer
Fabrication Agreement, dated as of April 21, 1999, as amended by the First
Amendment to Amended and Restated Wafer Fabrication Agreement dated as of
September 24, 1999, by and between AMD and Vantis (the "Wafer Fab Agreement").
RECITALS
A. AMD and Vantis entered into the Wafer Fab Agreement, whereby AMD
agreed to fabricate certain semiconductor devices for Vantis.
B. AMD and Vantis desire to amend certain terms of the Wafer Fab
Agreement.
AGREEMENT
Now, therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. AMENDMENT
a. EXPECTED NET DIE PER WAFER. The Expected Net Die Per Wafer set
forth on Exhibit A - Expected Net Die Per Wafer for the first and second fiscal
quarters of 2000 shall be deleted in their entirety and replaced with the Net
Die Per Wafer set forth in the table below.
- --------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER WAFER
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
- --------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER WAFER
- --------------------------------------------------------------
[*] [*] [*]
- --------------------------------------------------------------
[Confidential Treatment Request]
1
- --------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER WAFER
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
- --------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER WAFER
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
- --------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER WAFER
- --------------------------------------------------------------
E[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
[Confidential Treatment Request]
2
- --------------------------------------------------------------
TECHNOLOGY DEVICE NET DIE PER WAFER
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
b. BASE DIE PRICE TABLE. The Base Die Prices set forth on Exhibit
F - Base Die Price Table for 2000 shall be deleted in their entirety and
replaced with the Base Die Prices set forth in the table below.
- --------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE PRICE
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
- --------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE PRICE
- --------------------------------------------------------------
[*] [*] [*]
- --------------------------------------------------------------
[Confidential Treatment Request]
3
- --------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE PRICE
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
- --------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE PRICE
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
- --------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE PRICE
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
[Confidential Treatment Request]
4
- --------------------------------------------------------------
TECHNOLOGY DEVICE BASE DIE PRICE
- --------------------------------------------------------------
[*] [*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
- --------------------------------------------------------------
c. REFERENCES WITHIN THE WAFER FAB AGREEMENT. Each reference in
the Wafer Fab Agreement to "this Agreement" and the words "hereof," "herein" and
"hereunder," or words of like import, shall mean and be a reference to the Wafer
Fab Agreement as amended by this Amendment.
2. MISCELLANEOUS
a. WAFER FAB AGREEMENT OTHERWISE NOT AFFECTED. Except as expressly
amended pursuant hereto, the Wafer Fab Agreement shall remain unchanged and in
full force and effect and is hereby ratified and confirmed in all respects.
b. AMENDMENT AND WAIVERS. The provisions of this Amendment may
only be amended or waived in accordance with the terms of the Wafer Fab
Agreement.
c. SUCCESSORS AND ASSIGNS. The provisions of this Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
d. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and to this Amendment were upon the same instrument.
e. SEVERABILITY. In the event that any provision of this Amendment
shall be unlawful or otherwise unenforceable, such provision shall be severed,
and the entire agreement shall not fail on account thereof, the balance
continuing in full force and effect, and the parties shall endeavor to replace
the severed provision with a similar provision that is not unlawful or otherwise
unenforceable.
f. NO THIRD-PARTY BENEFICIARIES. No person not a party to this
Amendment shall have any rights under this Amendment as a third-party
beneficiary or otherwise other than persons or entities entitled to
indemnification as expressly set forth herein.
[Confidential Treatment Request]
5
g. GOVERNING LAW. This Amendment shall be governed by and
construed in accordance with the laws of the State of California, without
reference to conflicts of law principles.
h. INTEGRATION. This Amendment sets forth the entire agreement and
understanding between the parties as to its subject matter and supersedes all
prior agreements, understandings and memoranda between the parties. No
amendments or supplements to this Amendment shall be effective for any purpose
except by a written agreement signed by the parties.
[THIS SPACE INTENTIONALLY LEFT BLANK]
[Confidential Treatment Request]
6
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
ADVANCED MICRO DEVICES, INC.
By: /s/ Thomas E. Bumch
------------------------------------
Name: Thomas E. Bunch
----------------------------------
Title: Director, Strategic Planning
---------------------------------
VANTIS CORPORATION
By: /s/ Frank Barone
------------------------------------
Name: Frank J. Barone
----------------------------------
Title: Chief Operating Officer
---------------------------------
AGREED TO AND ACCEPTED:
LATTICE SEMICONDUCTOR CORPORATION
By: /s/ Randy D. Baker
----------------------------------
Name: Randy D. Baker
--------------------------------
Title: Vice President, Manufacturing
-------------------------------
7