1
Exhibit 10.29
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
DATED THIS 1ST DAY OF OCTOBER 1999
BETWEEN
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AND
ANALOG DEVICES INC.
- --------------------------------------------------------------------------------
ASSURED SUPPLY AND DEMAND AGREEMENT
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ASSURED SUPPLY AND DEMAND AGREEMENT
THIS AGREEMENT is made the 1st day of October 1999 by and between :-
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in
Singapore and having its place of business at 60 Woodlands Industrial
Park D, Street 2, Singapore 738406 ("CSM"); and
(2) ANALOG DEVICES, INC. a company incorporated in Delaware and having its
place of business at One Technology Way, Norwood, MA 02062, USA
("ADI").
WHEREAS
(A) CSM and ADBV, an affiliate of ADI, had entered into a Deposit Agreement
dated 30 January 1996 (the "Deposit Agreement") for the purpose of ADBV
depositing certain funds with CSM and for CSM to make available to ADBV
certain wafer manufacturing capacity. ADBV subsequently assigned its
rights and obligations under the Deposit Agreement to ADI.
(B) To strengthen the relationship between CSM and ADI and to meet the
changing business needs of both Parties, CSM and ADI have decided to
enter into this Assured Supply and Demand Agreement to supersede the
Deposit Agreement to effect new terms and conditions under which the
said deposit may be credited back to ADI.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the Parties agree as follows:-
1. DEPOSIT AGREEMENT SUPERSEDED
With effect from July 1, 1999 ("the Effective Date"), all terms and
conditions of the Deposit Agreement shall be superseded by the terms
and conditions of this Agreement, and shall cease to have any force or
effect.
2. THE DEPOSIT
2.1 The Parties acknowledge that ADI has deposited with CSM the sum of
US$20,000,000 (the "Deposit") for the purposes of securing wafer
manufacturing capacity at CSM's facilities.
2.2 With effect from the Effective Date, the Parties agree that CSM will
refund the Deposit to ADI on the terms and conditions set out as
follows. Partial refunds shall occur on a per wafer basis as outlined
in Table B of ANNEX A and on a per product basis as outlined in TABLE A
of Annex A. Product based refunds shall occur upon successful
completion of Tapeout, Lot Acceptance or Qualification, as defined
below and as indicated in TABLE A of Annex A. Wafer refunds per Table B
of Annex A shall include wafers purchased by ADI, its affiliates and
others of ADI products. If CSM is unable to accept an order for
CSM/ADI CONFIDENTIAL 2
3
Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
2.3 wafers within the CSM commitment described in this Agreement, ADI shall
be entitled to that same refund amount per wafer for any orders not
accepted by CSM. Refunds shall be calculated at the end of each
calendar quarter and shall be credited or paid to ADI within 30 days
after the close of the quarter.
2.4 "Tapeout" shall be deemed to have occurred when ADI provides to CSM a
full GDS database of a given product and CSM has communicated in
writing to ADI that there has been no design rule violation or has
agreed to accept the design and layout "as is." Acceptance of a
purchase order by CSM from ADI for more than [**] wafers of a product
shall constitute written "as is" design acceptance, unless mutually
agreed in writing.
2.5 "Lot Acceptance" by ADI shall be defined as the successful fabrication
of 4 production lots including 1 prototype or skew lot and 3
qualification lots, which pass all relevant CSM WAT criteria.
2.6 "Qualification" by ADI shall be defined as the attainment of
competitive yield and the successful completion of standard Reliability
screens as used by ADI in the qualification of similar products,
according to ADI specification ADI-0012.
2.7 If ADI successfully qualifies products as described in Table A of Annex
A in accordance with the mutually agreed qualification plan in ANNEX C,
ADI will be entitled to portions of the Deposit in accordance with
Annex A. Any part of the Deposit that is not refunded or due to be
refunded to ADI pursuant to Annex A on or before 30 June 2004, will not
be refunded thereafter. However, i) if ADI shall Tapeout one or more
products, proven to meet similar Lot Acceptance and Qualification
criteria at another vendor, on each of three or more of the
technologies listed in Table A of Annex A and CSM does not attain Lot
Acceptance and Qualification by 1 January 2002, on two or more of the
technologies listed in Table A of Annex A, or ii) CSM shall fail to
make industry-compatible versions of three or more of the technologies
listed in Table A of Annex A available to ADI for production use by 1
January 2002, then any remaining deposit on 29 June 2004 shall be then
refunded to ADI. For this purpose, an industry compatible process is
one which can accept and qualify the same layout as accepted and
qualified at a competitor wafer fab, after only minor revisions which
do not affect die size.
2.8 ADI may introduce its design customers and/or licensees to use CSM's
manufacturing facilities. If CSM agrees to provide manufacturing
services to any such third party, wafers manufactured based on an ADI
design pursuant to such an arrangement shall entitle ADI to the same
wafer credits indicated in Table B of Annex A. Wafers manufactured for
ADI under other agreements between CSM and ADI or its subsidiaries
shall entitle ADI to the same wafer credits indicated in Table B.
CSM/ADI CONFIDENTIAL 3
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2.8 All wafers shall be manufactured and supplied in accordance with CSM's
procedures and relevant ADI and CSM specifications, including the
existing ADI/CSM procurement spec, as to the current revision or as
amended by mutual agreement. Copies of CSM's procedures shall be
available upon written request by ADI.
2.9 ADI acknowledges that some of the process technologies referred to in
Annex A may be run in either or both of CSM's joint venture fabs
operated by Silicon Manufacturing Partners Pte Ltd ("SMP") and
Chartered Silicon Partners Pte Ltd ("CSP"). In the event that CSM needs
to supply ADI with any wafers out of SMP and/or CSP, ADI agrees to
allow CSM to assign the relevant portions of this Agreement to SMP or
CSP, as the case may be, or to enter into a separate agreement with SMP
or CSP on similar terms as the terms of this Agreement. All 8" wafers
purchased by ADI, its subsidiaries and assignees from CSM and its
affiliates, regardless of the actual process, fabrication source, or
fabrication site, shall be eligible for credit under the terms of this
Agreement.
3. ADI'S LOADING COMMITMENT
3.1 ADI agrees to place with CSM purchase orders of such quantity of 8-inch
wafers as forecasted for delivery during each calendar quarter of the
term of this Agreement.
3.2 While there are no liquidated damages associated with forecasts, both
Parties recognize the difficulty in CSM factories accommodating sharp
forecast changes or changes from forecast. Also, both Parties recognize
that a certain level of capacity must be committed by CSM to ADI to
accommodate ADI's revenue needs and to enable ADI to earn back the
deposit as set forth in Annex A. For these reasons, the Parties have
agreed on certain forecast guidelines below.
3.3 Forecast Timing. Forecasts refer to wafer purchase projections beyond
the normal lead-time published by CSM and agreed by ADI. Nominally, the
order lead-time is otherwise assumed to be 3 months for the purpose of
such forecasts. Forecasts shall refer to wafer delivery quantities and
dates and shall be non-binding. CSM shall acknowledge each forecast in
writing within 10 business days, either (i) accepting such forecast,
even though aspects may exceed the forecast quantity or variation
guidelines noted in Section 3.8, or (ii) identifying those aspects
which exceed guidelines and CSM's ability to sustain as their Base
Loading Commitment. Any forecast accepted by CSM in writing within 10
business days shall become the new Base Loading Commitment.
3.4 All wafer commitments within the agreed lead-time are made via ADI
Purchase Orders as acknowledged and accepted by CSM. Purchase Orders
accepted by CSM are considered binding agreements for CSM to deliver
and ADI to accept the stated quantity and type of wafers, in accordance
with all relevant CSM procedures and all agreed ADI and CSM
specifications, including the existing ADI/CSM procurement spec, as to
the current revision or as amended by mutual agreement. Purchase Orders
are time sensitive documents and must be acknowledged and accepted in
writing by CSM within 10 business days or they are considered null and
void. Wafer orders which are not delivered within the agreed delivery
lead-time, plus a grace period of no more than 30 days, upon placement
and acceptance of the Purchase Order, are subject to cancellation by
ADI on 2
CSM/ADI CONFIDENTIAL 4
5
business days notice. There is no penalty for cancellation due to late
delivery as described in this section. To the extent that the terms of
Purchase Orders and other documents are inconsistent with the terms of
this Agreement, this Agreement shall take precedence, unless CSM and
ADI specifically agree to amended terms in a separate agreement. The
terms of a quotation and purchase order shall not constitute such
amendment.
3.5 Quarterly Forecast. ADI's monthly wafer delivery requirements forecast
for those products to be manufactured over the next 18 months will be
provided quarterly on an agreed timetable (the "Quarterly Forecast").
The first such forecast is set out in ANNEX B (the "Original
Forecast"). The first 3 months of each Quarterly Forecast shall be
backed by Purchase Orders for those 3 months as described above.
Subject to Section 3.8 hereof, the Original Forecast shall be updated
by ADI at the end of every calendar quarter. Future Quarterly Forecasts
shall cover the period from 10 to 18 months from the forecast date,
indicating total wafer demand by process. The period from 4 to 9 months
shall be covered by the monthly forecast as outlined below.
3.6 Monthly Forecast. On a monthly basis, ADI shall provide CSM with a
6-month rolling forecast, by product and process, of its monthly volume
requirements for wafers covering the period from 4 to 9 months from the
forecast date. ADI will update the 6-month forecast on or before the
26th of each month (the "Monthly Forecast"). ADI shall indicate on the
forecast those products for which ADI requests CSM to obtain circuit
probe capacity and commit to execute circuit probing within the order
lead time.
3.7 Base Loading Commitment. For the purposes of establishing CSM's
capacity commitment to ADI, the concept of Base Loading Commitment is
introduced and is defined as the first Monthly Forecast, (as defined in
Section 3.6) of each quarter as accepted by CSM in writing plus the
corresponding Quarterly Forecast (as defined in section 3.5) of the
same date as submitted by ADI as adjusted for flexibility in accordance
with Section 3.8.
CSM/ADI CONFIDENTIAL 5
6
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
3.8 Loading Commitment Flexibility.
3.8.1 ADI's loadings per month shall not vary from one third of the relevant
quarter's Base Loading Commitment by more than [**].
3.8.2 On a quarterly basis, ADI may modify the Base Loading Commitment as
follows:
Period Pre-approved Modification
(Forecast Quarter = Quarter 0; (Percentage of the same month forecast made in
current month = month 0 the previous Base Loading Commitment)
e.g. Mar 2000)
Quarter 1 (e.g. Apr - Jun 2000) +/- 0% as covered by Accepted Purchase Orders
Quarter 2 (e.g. Jul - Sep 2000) The lesser of + / - [**] wafers
Quarter 3 (e.g. Oct - Dec 2000) The lesser of + / - [**] wafers
Quarter 4 (e.g. Jan - Mar 2001) The lesser of + / - [**] wafers
Quarter 5 (e.g. Apr - Jun 2001) The lesser of + / - [**] wafers
Quarter 6 (e.g. Jul - Sep 2001) The lesser of + / - [**] wafers
3.8.3 Notwithstanding the foregoing, should any ADI forecast exceed the
pre-approved modification for any calendar quarter, CSM shall have the
right to accept or reject that revised forecast. CSM shall have 14
business days to either accept or reject the modified forecast in
writing. If CSM accepts the modified forecast, then it shall become the
new Base Loading Commitment.
A table to demonstrate how the above flexibility model operates with
respect to the Original Forecast is set out in ANNEX B.
4. CSM'S SUPPLY COMMITMENT
4.1 In consideration of the retention of the Deposit, CSM hereby agrees to
supply wafers as per the Base Loading Commitment. Unless otherwise
agreed to by CSM in writing, CSM shall not be contractually obligated
to provide more than [**] wafers under this Agreement in a given month
through December 31, 2000. Thereafter, and unless otherwise agreed to
by CSM in writing, CSM shall not be contractually obligated to provide
more am [**]wafers per month or [**] wafers per month per [**]
outstanding Deposit balance, whichever is greater.
4.2 CSM's Supply Commitment set out in Section 4.1 above shall be limited
to the mix of technologies set out in the Original Forecast in Annex B
or in subsequent forecasts as accepted by CSM and shall continue for so
long as any portion of the Deposit remains outstanding, unless the
Agreement is terminated under Section 6.
CSM/ADI CONFIDENTIAL 6
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4.3 CSM's Supply Commitment under this Agreement shall be considered
separate from and in addition to CSM's Supply Commitment under other
agreements between the Parties.
5. EFFECTIVE DATE
5.1 The effective date of this Agreement shall be July 1st, 1999.
6. TERMINATION DATE
6.1 Unless terminated earlier by the Agreement of the parties or on the
complete refund of the Deposit, this Agreement shall terminate
automatically on June 30, 2004. Any remaining amount of the Deposit
unrefunded as of June 30, 2004 and not pending reimbursement via
mechanisms in Annex A shall be retained by CSM with no recourse for
recovery by ADI, as provided in Section 2.6.
7. PRICING AND PAYMENT TERMS
7.1 The purchase price of wafers charged to ADI shall be in accordance with
the terms of the relevant CSM price quotation agreed to by the Parties
from time to time for the relevant lots of wafers purchased. CSM
commits to provide wafers at market competitive prices.
7.2 Unless otherwise set out in the applicable Agreed Price Quotation,
payment for wafers ordered shall be made by ADI in United States
dollars within 45 days from the date of the applicable invoices issued
by CSM. ADI shall make payment by telegraphic transfer to an account
nominated by CSM. Any late payment for Wafers shall be subject to
interest charges of 1.5% per month.
7.3 All invoices issued by CSM shall identify the wafers and the relevant
ADI Purchase Order number, Product part number, Purchase Order line and
release number, description of items, and quantity of items shipped.
Unless otherwise agreed by ADI and CSM in writing, invoices may be
dated no earlier than the relevant date of delivery.
7.4 In the event of any dispute over the amount invoiced, ADI shall first
make payment of the undisputed portion in accordance with Section 7.2
pending resolution of the dispute between the Parties.
7.5 ADI shall pay, in addition to the prices of wafers stipulated herein,
the amount of any freight, insurance, handling and other duties levied
on the shipment of wafers to ADI. ADI shall also pay for all sales,
use, excise or other similar taxes levied on the purchase of wafers by
ADI hereunder.
7.6 CSM may, in its discretion upon written notice to ADI, change the terms
of payment to cash, cash-on-delivery or letter of credit or place ADI
on credit hold in the event that ADI is late in its payments under this
Agreement.
CSM/ADI CONFIDENTIAL 7
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8. PROCEDURE FOR RETURN OF WAFERS
8.1 The return of wafers shall be in accordance with the current CSM
specification QX-038. The time limit for the return of wafers due to
low sort yield is 60 days from the delivery date of such wafers, and
the time limit for the return of Wafers due to reliability failures is
1 year from the delivery date of such wafers.
8.2 CSM shall have no liability and shall not be obliged to accept the
return of wafers after the relevant period of 60 days or 1 year, as the
case may be. In addition, CSM shall be under no liability for defects
in the wafers caused by static discharge, abnormal working conditions,
fair wear and tear, accident, willful damage, abuse, misuse, neglect,
improper installation, repair or alteration by persons other than CSM,
improper testing and/or improper storage and/or improper handling or
use contrary to any instructions issued by CSM which are in keeping
with generally accepted industry practices. Further, CSM shall be under
no liability for any parts or materials it has not manufactured.
8.3 CSM shall have the discretion to decide whether or not to conduct
failure analysis on the wafers returned by ADI, and if such failure
analysis is conducted, CSM will, at ADI's request, provide ADI with
copies of the results of such analysis. If it is mutually agreed that
the defects are due to causes other than the causes specified in
Section 8.2, then ADI may at its option elect for either a full credit
for the purchase price paid for such wafers, or CSM's replacement of
the defective wafers returned to CSM. If ADI elects for the replacement
of defective wafers, the manufacture of such wafers shall have high
priority on CSM's production schedule, at no further cost to ADI.
8.4 THE FOREGOING STATES CSMS ENTIRE LIABILITY, WHETHER IN CONTRACT OR IN
TORT FOR DEFECTS IN WAFERS. THE EXPRESS TERMS OF THIS AGREEMENT ARE IN
LIEU OF ALL WARRANTIES, CONDITIONS, TERMS, UNDERTAKINGS, AND
OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE USAGE, COURSE
OF DEALING OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED TO
THE FULLEST EXTENT PERMITTED BY LAW AND CSM SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. PRODUCTION HALTS
9.1 ADI may at any time request CSM to halt the manufacture of wafers still
in-process and CSM shall effect production stoppage, within 2 business
days at a point in the process that is consistent with subsequent
successful completion. The manufacture of Wafers shall remain on hold
pending written directions from ADI. If such hold extends beyond 90
days, CSM will deem the hold to be a cancellation of the order and ADI
will be invoiced in accordance with Section 9.2.
CSM/ADI CONFIDENTIAL 8
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9.2 If ADI places an order on hold beyond 90 days or decides to cancel an
order for reasons other than late delivery, ADI shall pay to CSM a
Cancellation Fee based on the formula below:
CF = [(CS DIVIDED BY TS) X (P - R)] + R + T
where
'CF' means the cancellation fee payable by Customer.
'CS' means the number of completed manufacturing steps as at the
date of cancellation.
'TS' means the total number of manufacturing steps required to
produce the Wafers had there not been any cancellation.
'P' refers to the purchase price of the Wafer as set out in the
applicable Agreed Price Quotation.
'R' refers to the raw wafer cost incurred by CSM.
'T' refers to any applicable sales, use, excise or other similar
taxes levied on or otherwise payable in connection with the
Cancellation Fee.
9.3 CSM shall, if commercially feasible, re-start the manufacture of wafers
within a reasonable time after receipt of ADI's written request,
subject to ADI's agreement to bear all expenses incurred by CSM in
production stoppage and re-start. CSM will make no commitments of
yield, reliability and conformance with the Acceptance Criteria in
respect of wafers stopped in-process (a) more than one time regardless
of the number of days of stoppage, or (b) if the stoppage lasts for
more than 90 days.
10. DELIVERY
10.1 CSM shall use its commercially reasonable efforts to deliver the exact
quantity of wafers stipulated in the relevant ADI Purchase Order.
However if for each Purchase Order the aggregate quantity of wafers
delivered by CSM is either within plus or minus 5% of the quantity
ordered or within plus or minus 1 wafer, whichever is greater, such
quantity shall constitute compliance with ADI Purchase Order.
10.2 Unless otherwise agreed by the Parties, Wafers shall be delivered
Ex-Works (CSM's factory in Singapore) (INCOTERMS 1990). CSM shall use
its commercially reasonable efforts to deliver within the scheduled
delivery date. However if for each purchase order, wafers are delivered
within plus or minus 7 days of the scheduled delivery date, such
delivery shall constitute compliance with ADI Purchase Order. CSM shall
promptly give ADI written notice of any prospective failure to deliver
within the scheduled deliver date.
CSM/ADI CONFIDENTIAL 9
10
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
10.3 All quantities of wafers shall be delivered in CSM standard containers
with proper labels identifying the specific product and lot number and
shall be accompanied by a packing list specifying the relevant purchase
order number, wafer lot number, Wafer quantity and number of good
un-inked die (if wafers have been sorted) and agreed upon processing
documentation.
10.4 If ADI fails to take delivery of any quantity of wafers or fails to
give adequate delivery instructions (otherwise than by reason of any
cause beyond ADI's reasonable control or by reason of CSM's fault),
then without prejudice to any other right or remedy available to CSM,
CSM may at its option, store such wafers until actual delivery and
charge ADI for reasonable costs (including insurance) of storage.
11. FORCE MAJEURE
11.1 Each Party's obligations under this Agreement shall be suspended upon
the occurrence of a force majeure event such as act of God, flood,
earthquake, fire, explosion, act of government, war, civil commotion,
insurrection, embargo, riots, lockouts, labour disputes affecting such
Party, for such period as such force majeure event may subsist. Upon
the occurrence of a force majeure event, the affected Party shall
notify the other Party in writing of the same and shall by subsequent
written notice after the cessation of such force majeure event inform
the other Party of the date on which that Party's obligation under this
Agreement shall be reinstated.
11.2 Notwithstanding anything in this Section 11, upon the occurrence of a
force majeure event affecting either Party, if such force majeure event
continues for a period exceeding 6 consecutive months without a
prospect of a cure of such event, the other Party shall have the
option, in its sole discretion, to terminate this Agreement. Such
termination shall take effect immediately upon the written notice to
that effect from the other Party to the Party affected by the force
majeure event.
11.3 If a force majeure event prevents CSM from supplying wafers to ADI, the
termination date set forth in Section 6 shall be automatically extended
by the duration of the force majeure event.
12. USE RESTRICTION AND LIMITATION OF LIABILITY
12.1 ADI accepts all responsibility for any use or action taken by ADI with
respect to wafers manufactured by CSM, once CSM has satisfactorily
delivered the said wafers to ADI or ADI's agent(s) in Singapore in
accordance with the terms of this Agreement.
12.2 ADI hereby agrees that the wafers are [**] for use as [**] in (a) any
[**]devices or systems; or (b) any [**] devices or systems [**]
(including but not limited to [**]). CSM
CSM/ADI CONFIDENTIAL 10
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Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
12.3 shall not be responsible or liable to ADI or any third party for any
unauthorized use of the wafers. As used herein:
(i) [**] devices or systems are devices or systems which are intended
(aa) for [**], or (bb) to [**], and [**] may result in [**].
(ii) A [**] component is any component of a [**] device or system [**]
may cause the [**].
12.4 ADI shall indemnify, hold harmless and defend CSM, its officers,
directors, employees and subcontractors from and against any claim,
suit, demand or action which arises in any way out of, involves or
relates to an unauthorized use of any wafers or products and ADI shall
indemnify and hold harmless CSM, its officers, directors, employees and
subcontractors against any and all direct losses, liabilities, damages,
awards of settlement (including court costs) and expenses (including
all reasonable attorney's fees, whether or not legal proceedings are
commenced) arising from any such claim, suit, demand or action. CSM
shall notify ADI of any such claim or allegation promptly after
receiving notice thereof.
12.5 THE TOTAL LIABILITY OF CSM ON ALL CLAIMS OF ANY KIND, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE
ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT OR USE OF
THE WAFERS SHALL NOT EXCEED [**] BY [**] FROM [**] IN RESPECT OF THE
[**] OF THE [**] WHICH [**] THE CLAIM.
12.6 In no event shall either Party be liable to the other with respect to
the subject matter of this Agreement under any contract, tort
(including negligence), strict liability or other legal or equitable
theory for any incidental, consequential, special or indirect damages
of any sort even if such Party has been informed of the possibility of
such damages.
13. CONFIDENTIALITY
13.1 All Confidential Information shall be kept confidential by the
recipient unless or until the recipient Party can reasonably
demonstrate that any such Confidential Information is, or part of it
is, in the public domain through no fault of its own, whereupon to the
extent that it is in the public domain or is required to be disclosed
by law this obligation shall cease. For the purposes of this Agreement,
"Confidential Information" shall mean all communications between the
Parties, and all information and other materials supplied to or
received by either of them from the other (a) prior to or on the date
of this Agreement whether or not marked confidential; (b) after the
date of this Agreement which is marked confidential with an appropriate
legend, marking, stamp or other obvious written identification by the
disclosing Party, and (c) all information concerning the business
transactions and the financial arrangements of the Parties with any
person with whom either of them is in a confidential relationship with
regard to the matter in question coming to the knowledge of the
recipient.
CSM/ADI CONFIDENTIAL 11
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13.2 The Parties shall take all reasonable steps to minimize the risk of
disclosure of Confidential Information, by ensuring that only they
themselves and such of their employees and directors whose duties will
require them to possess any of such information shall have access
thereto, and will be instructed to treat the same as confidential.
13.3 The obligation contained in this Section 13 shall endure, even after
the termination of this Agreement, for a period of 5 years from the
date of receipt of the Confidential Information except and until such
Confidential Information enters the public domain as set out above.
14. NOTICES
14.1 All notices, demands or other communications required or permitted to
be given or made under or in connection with this Agreement shall be in
writing and shall be sufficiently given or made (a) if delivered by
hand or commercial courier or (b) sent by pre-paid registered post or
(c) sent by legible facsimile transmission (provided that the receipt
of such facsimile transmission is confirmed and a copy thereof is sent
immediately thereafter by pre-paid registered post or commercial
courier) addressed to the intended recipient at its address or
facsimile number set out below. A Party may from time to time notify
the others of its change of address or facsimile number in accordance
with this Section 14.
CSM
---
60 Woodlands Industrial Park D
Street 2
Singapore 738406
Facsimile no: (65) 362 2909
Attention: The Legal Department
CSM/ADI CONFIDENTIAL 12
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ADI
---
One Technology Way
Norwood, MA 02062-9106, USA
Facsimile no: 1-781-461-3491
Attention: Corporate Counsel
With a copy to:
804 Woburn Street
Wilmington, MA 01887-3462, USA
Facsimile no: 1-781-937-2008
Attention: External Foundry Director
14.2 DEEMED DELIVERY
Any such notice, demand or communication shall be deemed to have been
duly served (a) if delivered by hand or commercial courier, or sent by
pre-paid registered post, at the time of delivery; or (b) if made by
successfully transmitted facsimile transmission, at the time of
dispatch (provided that the receipt of such facsimile transmission is
confirmed and that immediately after such dispatch, a copy thereof is
sent by pre-paid registered post or commercial courier).
15. WAIVER AND REMEDIES
15.1 No delay or neglect on the part of either Party in enforcing against
the other Party any term or condition of this Agreement or in
exercising any right or remedy under this Agreement shall either be or
be deemed to be a waiver or in any way prejudice any right or remedy of
that Party under this Agreement.
15.2 No remedy conferred by any of the provisions of this Agreement is
intended to be exclusive of any other remedy which is otherwise
available at law, in equity, by statute or otherwise and each and every
other remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law, in
equity, by statute or otherwise. The election of any one or more of
such remedies by either of the Parties shall not constitute a waiver by
such Party of the right to pursue any other available remedy.
16. SEVERANCE
16.1 If any provision or part of this Agreement is rendered void, illegal or
unenforceable in any respect under any enactment or rule of law, the
validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
CSM/ADI CONFIDENTIAL 13
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17. NO ASSIGNMENT OR SUB-CONTRACTING
17.1 Unless otherwise agreed in writing by the Parties, this Agreement may
not be assigned or sub-contracted by either Party to any third party
without the prior written consent of the other Party, which consent
shall not be unreasonably withheld.
18. GOVERNING LAW
18.1 This Agreement shall be governed by and construed in accordance with
the substantive laws of the Singapore.
18.2 The Parties hereby specifically exclude the application of the United
Nations Convention on Contracts for the International Sale of Goods to
this Agreement.
18.3 Except as otherwise expressly provided hereunder, any dispute or
controversy arising in connection with this Agreement which cannot be
settled by mutual or amicable agreement shall be finally settled
through binding arbitration in London, England pursuant to the Rules of
Arbitration of the International Chamber of Commerce by 1 arbitrator
appointed in accordance with the said Rules. Any such arbitration shall
be conducted in the English language.
19. ENTIRE AGREEMENT
19.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes and replaces
all prior or contemporaneous understandings, agreements, dealings, and
negotiations, oral or written, regarding the subject matter hereof
including, without limitation, the Deposit Agreement. No modification,
alteration or amendment of the Agreement shall be effective unless in
writing and signed by both Parties. This Agreement shall supersede the
1995 Manufacturing Agreement, dated 17 March 1995, only to the extent
of any inconsistent provision set forth herein.
CSM/ADI CONFIDENTIAL 14
15
IN WITNESS WHEREOF the Parties have hereunto entered into this Agreement as of
the date first above written.
/s/ Joseph E. McDonough
- -----------------------
Name: Joseph E. McDonough
Title: Vice President Finance & CFO
for and on behalf of
ANALOG DEVICES, INC.
/s/ Robert Baxter
- -----------------
Name: Robert Baxter
Title: Senior Vice-President, Business Operations
for and on behalf of
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
CSM/ADI CONFIDENTIAL 15
16
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
ANNEX A
-------
(Ref Sections 2.2, 2.6, 2.7, 2.9, 3.2 and 6.1)
The Refund of the Deposit to ADI shall be in accordance with the following
terms:
TABLE A: NON-WAFER CREDITS
- --------------------------------------------------------------------------------
EVENTS ENTITLING ADI TO REFUND: AMOUNT REFUNDABLE
NON-WAFER CREDITS (US$)
- ----------------------------------------- --------------------------------------
1. [**] [**]
- ----------------------------------------- --------------------------------------
2. [**] [**]
- ----------------------------------------- --------------------------------------
3. [**] [**]
- ----------------------------------------- --------------------------------------
4. [**] [**]
- ----------------------------------------- --------------------------------------
5. [**] [**]
- ----------------------------------------- --------------------------------------
6. [**] [**]
- ----------------------------------------- --------------------------------------
7. [**] [**]
- ----------------------------------------- --------------------------------------
8. [**] [**]
- ----------------------------------------- --------------------------------------
9. [**] [**]
- ----------------------------------------- --------------------------------------
10. [**] [**]
- ----------------------------------------- --------------------------------------
11. [**] [**]
- ----------------------------------------- --------------------------------------
MAXIMUM TOTAL OF ALL NON-WAFER CREDITS [**]AMOUNT PAID OUT IN WAFER CREDITS
- --------------------------------------------------------------------------------
TABLE B: WAFER CREDITS
- --------------------------------------------------------------------------------
EVENTS ENTITLING ADI TO REFUND: AMOUNT REFUNDABLE
WAFER CREDITS (US$)
- ----------------------------------------- --------------------------------------
[**] [**]
- ----------------------------------------- --------------------------------------
MAXIMUM TOTAL OF ALL WAFER CREDITS [**] AMOUNT PAID OUT IN NON-WAFER
CREDITS
- --------------------------------------------------------------------------------
CSM/ADI CONFIDENTIAL 16
17
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
NOTES:
1. The maximum amount of monetary credits to be refunded by Chartered
pursuant to the situations in Tables A and B above shall not exceed
US[**].
2. Notwithstanding product names or descriptions above, ADI shall have
sole discretion 1) as to which products are actually used for
qualification, provided they use the CSM process as described, and 2)
as to which products are subsequently run in volume generating wafer
credits.
CSM/ADI CONFIDENTIAL 17
18
Confidential Materials omitted and filed separately with the Securities
and Exchange Commission. Asterisks denote omissions.
ANNEX B
(Ref Sections 3.5, 3.8 & 4.2)
{Original Forecast & Flexibility Model - ADI to provide forecast}
Table A - Monthly Forecast
ADI WORLDWIDE MANUFACTURING
CSM AUG WAFER FORECAST PRINTED ON: 9121199 6:02:53 PM
VENDOR (P)ROBED 09/99A 10/99A 11/99A 12/99F 12/99F 01/00F 01/00F 02/00F
PRODUCT PART # (U)NPROBED ORDR ORDR ORDR PLAN MAX PLAN MAX PLAN
FOUNDRY: Chartered Semiconductor Manufacturing
Pte Ltd
ADI WORLDWIDE MANUFACTURING
CSM AUG WAFER FORECAST PRINTED ON: 9121199 6:02:53 PM
VENDOR (P)ROBED 02/00F 03/00F 03/00F 04/00F 04/00F 05/00F 05/00F
PRODUCT PART # (U)NPROBED MAX PLAN MAX PLAN MAX PLAN MAX
FOUNDRY: Chartered Semiconductor Manufacturing
Pte Ltd
[**]
CSM/ADI CONFIDENTIAL 18