-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, LG1YQcOBunHKz/VxLin6dFiz/cARaBIL/Etu/iA05Zr45L0o+B8GCJJzT2KbbPa8 hAsNVB6WrgERxl38YWYVBQ== 0000891618-94-000107.txt : 19940513 0000891618-94-000107.hdr.sgml : 19940513 ACCESSION NUMBER: 0000891618-94-000107 CONFORMED SUBMISSION TYPE: 10-K/A PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19931226 FILED AS OF DATE: 19940503 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ADVANCED MICRO DEVICES INC CENTRAL INDEX KEY: 0000002488 STANDARD INDUSTRIAL CLASSIFICATION: 3674 IRS NUMBER: 941692300 STATE OF INCORPORATION: DE FISCAL YEAR END: 1227 FILING VALUES: FORM TYPE: 10-K/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-07882 FILM NUMBER: 94525918 BUSINESS ADDRESS: STREET 1: 901 THOMPSON PL STREET 2: P O BOX 3453 CITY: SUNNYVALE STATE: CA ZIP: 94088 BUSINESS PHONE: 4087322400 10-K/A 1 AMD AMENDMENT NO.1 TO FORM 10K 1 - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM 10-K/A (NO. 1) (MARK ONE) /X/ AMENDMENT NO. 1 TO ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934. FOR THE FISCAL YEAR ENDED DECEMBER 26, 1993 / / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM ---------------TO ---------------. COMMISSION FILE NUMBER 1-7882 ADVANCED MICRO DEVICES, INC. (Exact name of registrant as specified in its charter) DELAWARE 94-1692300 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification Number) ONE AMD PLACE SUNNYVALE, CALIFORNIA 94088-3453 (Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 732-2400 ------------------------ Securities registered pursuant to Section 12(b) of the Act: (NAME OF EACH EXCHANGE ON (TITLE OF EACH CLASS) WHICH REGISTERED) $.01 PAR VALUE COMMON STOCK NEW YORK STOCK EXCHANGE PREFERRED STOCK PURCHASE RIGHTS NEW YORK STOCK EXCHANGE DEPOSITARY CONVERTIBLE EXCHANGEABLE NEW YORK STOCK EXCHANGE PREFERRED SHARES
------------------------ Securities registered pursuant to Section 12(g) of the Act: NONE Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes No X Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. /X/ Aggregate market value of the voting stock held by nonaffiliates as of February 28, 1994. $1,980,075,847 Indicate the number of shares outstanding of each of the registrant's classes of common stock, as of the latest practicable date. 92,627,503 SHARES AS OF FEBRUARY 28, 1994. DOCUMENTS INCORPORATED BY REFERENCE (1) Portions of the Annual Report to Shareholders for the fiscal year ended December 26, 1993, are incorporated into Parts I, II and IV hereof. (2) Portions of the Proxy Statement dated on or before March 27, 1994, for the Annual Meeting of Stockholders to be held on April 27, 1994 are incorporated into Part III hereof. - - -------------------------------------------------------------------------------- - - -------------------------------------------------------------------------------- 2 PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) 1. Financial Statements The financial statements listed in the accompanying Index to Consolidated Financial Statements and Financial Statement Schedules Covered by Report of Independent Auditors are filed or incorporated by reference as part of this annual report. The following is a list of such Financial Statements:
PAGE REFERENCES ------------------- 1993 ANNUAL FORM REPORT TO 10-K STOCKHOLDERS ---- ------------ Report of Independent Auditors............................................. -- 29 Consolidated Statements of Operations for each of the three fiscal years in the period ended December 26, 1993........................................... -- 17 Consolidated Balance Sheets at December 27, 1992 and December 26, 1993..... -- 18 Consolidated Statements of Cash Flows for each of the three fiscal years in the period ended December 26, 1993........................................... -- 19 Notes to consolidated financial statements................................. -- 20-28 Supplementary financial data: Fiscal years 1992 and 1993 by quarter (unaudited)........................ -- 30-31
2. Financial Statement Schedules The financial statement schedules listed in the accompanying Index to Consolidated Financial Statements and Financial Statement Schedules Covered by Report of Independent Auditors are filed or incorporated by reference as part of this annual report. The following is a list of such Financial Statement Schedules:
PAGE REFERENCES ------------------- 1993 ANNUAL FORM REPORT TO 10-K STOCKHOLDERS ---- ------------ I Marketable Securities............................................... F-3 -- II Amounts receivable from officers and employees...................... F-4 -- V Property, plant and equipment....................................... F-5 -- Accumulated depreciation and amortization of property, plant and VI equipment........................................................... F-6 -- VIII Valuation and qualifying accounts................................... F-7 -- X Supplementary operations statement information...................... F-8 --
1 3 3. EXHIBITS The exhibits listed in the accompanying Index to Exhibits are filed or incorporated by reference as part of this annual report. The following is a list of such Exhibits:
EXHIBIT NUMBER DESCRIPTION OF EXHIBITS - - ---------- ---------------------------------------------------------------------------- 3.1 Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the Corporation's Annual Report on Form 10-K for the fiscal period ended December 27, 1987, is hereby incorporated by reference. 3.2 Certificate of Designations for Convertible Exchangeable Preferred Shares, filed as Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 27, 1987, is hereby incorporated by reference. 3.3 Certificate of Designations for Series A Junior Participating Preferred Stock, filed as Exhibit 3.3 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, is hereby incorporated by reference. 3.4 By-Laws, as amended, filed as Exhibit 3.4 to the Corporations Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 4.1 Deposit Agreement with respect to the $30 Convertible Exchangeable Preferred Shares, filed as Exhibit 4.3 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 29, 1987, is hereby incorporated by reference. 4.2 Indenture with respect to the 6% Convertible Subordinated Debentures due in 2012, filed as Exhibit 4.4 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 29, 1987, is hereby incorporated by reference. 4.3 The Corporation hereby agrees to file on request of the Commission a copy of all instruments not otherwise filed with respect to long-term debt of the Corporation or any of its subsidiaries for which the total amount of securities authorized under such instruments does not exceed 10% of the total assets of the Corporation and its subsidiaries on a consolidated basis. 4.4 Rights Agreement between the Corporation and Bank of America N.T. & S.A., filed as Exhibit 4.1 to the Corporation's Current Report on Form 8-K dated February 7, 1990, is hereby incorporated by reference. *10.1 AMD 1982 Stock Option Plan, as amended. *10.2 AMD 1986 Stock Option Plan, as amended. *10.3 AMD 1992 Stock Incentive Plan, as amended. *10.4 AMD 1980 Stock Appreciation Rights Plan, as amended. *10.5 AMD 1986 Stock Appreciation Rights Plan, as amended. *10.6 MMI 1975 Stock Option Plan, as amended, filed as Exhibit 10.6 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.7 MMI 1981 Incentive Stock Option Plan, as amended. *10.8 Forms of Stock Option Agreements, filed as Exhibit 10.8 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.9 Form of Limited Stock Appreciation Rights Agreement, filed as Exhibit 4.11 to the Corporation's Registration Statement on Form S-8 (No. 33-26266) is hereby incorporated by reference. *10.10 AMD 1987 Restricted Stock Award Plan, as amended.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBITS - - ---------- ---------------------------------------------------------------------------- *10.11 Forms of Restricted Stock Agreements, filed as Exhibit 10.11 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.12 Resolution of Board of Directors on September 9, 1981, regarding acceleration of vesting of all outstanding stock options and associated limited stock appreciation rights held by officers under certain circumstances, filed as Exhibit 10.10 to the Corporation's Annual Report on Form 10-K for fiscal year ended March 31, 1985, is hereby incorporated by reference. *10.13(a) Employment Agreement dated July 1, 1991, between the Corporation and W. J. Sanders III, filed as Exhibit 10.1 to the Corporation's Form 8-K dated September 3, 1991, is hereby incorporated by reference. *10.13(b) Amendment dated August 27, 1991, to Employment Agreement between the Corporation and W. J. Sanders III, filed as Exhibit 10.2 to the Corporation's Form 8-K dated September 3, 1991, is hereby incorporated by reference. *10.14 Management Continuity Agreement between the Corporation and W. J. Sanders III, filed as Exhibit 10.14 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.15 Bonus Agreement between the Corporation and Richard Previte, filed as Exhibit 10.15 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.16 Executive Bonus Plan, filed as Exhibit 10.16 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.17 Bonus Agreement between the Corporation and Anthony B. Holbrook, filed as Exhibit 10.17 for the fiscal year ended December 27, 1992, is hereby incorporated by reference. *10.18 Form of Bonus Deferral Agreement, filed as Exhibit 10.12 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 30, 1986, is hereby incorporated by reference. *10.19 Form of Executive Deferral Agreement, filed as Exhibit 10.17 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, is hereby incorporated by reference. *10.20 Director Deferral Agreement of R. Gene Brown, filed as Exhibit 10.18 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, is hereby incorporated by reference. 10.21 License Agreement with Western Electric Company, Incorporated, filed as Exhibit 10.5 to the Corporation's Annual Report on Form 10-K for fiscal year ended 1979, is hereby incorporated by reference. 10.22 Intellectual Property Agreements with Intel Corporation, filed as Exhibit 10.21 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. 10.23 Award of Arbitrator in Case No. 626879 between the Corporation and Intel Corporation, filed as Exhibit 28.2 on Form 8-K dated February 24, 1992, is hereby incorporated by reference. 10.24 Form of Indemnification Agreements with former officers of Monolithic Memories, Inc., filed as Exhibit 10.22 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1987, is hereby incorporated by reference.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBITS - - ---------- ---------------------------------------------------------------------------- 10.25 Agreement and Plan of Reorganization between Monolithic Memories Inc., the Corporation and Advanced Micro Devices Merger Corporation, filed as Annex A to the Corporation's Amendment No. 1 to Registration Statement on Form S-4 (No. 33-15015), dated June 25, 1987, is hereby incorporated by reference. *10.26 Form of Management Continuity Agreement, filed as Exhibit 10.25 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. **10.27(a) Joint Venture Agreement between the Corporation and Fujitsu Limited. **10.27(b) Technology Cross-License Agreement between the Corporation and Fujitsu Limited. **10.27(c) AMD Investment Agreement between the Corporation and Fujitsu Limited. **10.27(d) Fujitsu Investment Agreement between the Corporation and Fujitsu Limited. **10.27(e) Joint Venture License Agreement between the Corporation and Fujitsu Limited. **10.27(f) Joint Development Agreement between the Corporation and Fujitsu Limited. 10.28 Credit Agreement dated as of January 4, 1993, among Advanced Micro Devices, Inc., Bank of America National Trust and Savings Association as Agent, The First National Bank of Boston as Co-Agent, filed as Exhibit 10.27 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(a) Amended and Restated Guaranty dated as of January 4, 1993, by Advanced Micro Devices, Inc. in favor of CIBC Inc., filed as Exhibit 10.28(a) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(b) Building Lease by and between CIBC Inc. and AMD International Sales & Service, Ltd. dated as of September 22, 1992, filed as Exhibit 10.28(b) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(c) First Amendment to Building Lease dated December 22, 1992, by and between CIBC Inc. and AMD International Sales & Service, Ltd., filed as Exhibit 10.28(c) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(d) Land Lease by and between CIBC Inc. and AMD International Sales & Service, Ltd. dated as of September 22, 1992, filed as Exhibit 10.28(d) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(e) First Amendment to Land Lease dated December 22, 1992, by and between CIBC Inc. and AMD International Sales & Service, Ltd., filed as Exhibit 10.28(e) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. *10.30 Executive Savings Plan. *10.31 Form of Split Dollar Agreement. *10.32 Form of Collateral Security Assignment Agreement. *10.33 Forms of Stock Option Agreements to the 1992 Stock Incentive Plan, filed as Exhibit 4.3 to the Corporation's Registration Statement on Form S-8 (No. 33-46577) is hereby incorporated by reference. *10.34 1992 United Kingdom Share Option Scheme, Filed as Exhibit 4.2 to the Corporation's Registration on Form S-8 (No. 33-46577) is hereby incorporated by reference.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBITS - - ---------- ---------------------------------------------------------------------------- 11.1 Statement re computation of per share earnings. 13. 1993 Annual Report to Stockholders which has been incorporated by reference into Parts I, II and IV of this annual report. To the extent filed, refer to the front page hereinabove. 22. List of AMD subsidiaries. 24. Consent of Independent Auditors, refer to page F-2 hereinabove. 25. Power of Attorney.
The Corporation will furnish a copy of any exhibit on request and payment of the Corporation's reasonable expenses of furnishing such exhibit. * Management contracts and compensatory plans or arrangements required to be filed as an Exhibit to comply with Item 14(a)(3). ** Confidential treatment has been requested as to certain portions of these Exhibits. Amendment No. 1 to this Report includes copies of these Exhibits which contain certain information not included in the copies filed with the original Report. (b) Reports on Form 8-K. 1. A current Report on Form 8-K dated January 27, 1994, was filed announcing an agreement with Compaq Computer Corporation. 2. A current Report on Form 8-K dated February 10, 1994, was filed announcing an agreement with Digital Equipment Corporation. 5 7 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized. ADVANCED MICRO DEVICES, INC. Registrant May 3, 1994 By: /s/ MARVIN D. BURKETT Marvin D. Burkett Senior Vice President, Chief Administrative Officer and Secretary; Chief Financial Officer and Treasurer 8 ADVANCED MICRO DEVICES, INC. ------------------------ INDEX TO EXHIBITS (ITEM 14(A)(3))
EXHIBIT NUMBER DESCRIPTION - - ---------- ------------------------------------------------------------------ 3.1 Certificate of Incorporation, as amended, filed as Exhibit 3.1 to the Corporation's Annual Report on Form 10-K for the fiscal period ended December 27, 1987, is hereby incorporated by reference. 3.2 Certificate of Designations for Convertible Exchangeable Preferred Shares, filed as Exhibit 3.2 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 27, 1987, is hereby incorporated by reference. 3.3 Certificate of Designations for Series A Junior Participating Preferred Stock, filed as Exhibit 3.3 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, is hereby incorporated by reference. 3.4 By-Laws, as amended, filed as Exhibit 3.4 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 4.1 Deposit Agreement with respect to the $30 Convertible Exchangeable Preferred Shares, filed as Exhibit 4.3 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 29, 1987, is hereby incorporated by reference. 4.2 Indenture with respect to the 6% Convertible Subordinated Debentures due in 2012, filed as Exhibit 4.4 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 29, 1987, is hereby incorporated by reference. 4.3 The Corporation hereby agrees to file on request of the Commission a copy of all instruments not otherwise filed with respect to long-term debt of the Corporation or any of its subsidiaries for which the total amount of securities authorized under such instruments does not exceed 10% of the total assets of the Corporation and its subsidiaries on a consolidated basis. 4.4 Rights Agreement between the Corporation and Bank of America N.T. & S.A., filed as Exhibit 4.1 to the Corporation's Current Report on Form 8-K dated February 7, 1990, is hereby incorporated by reference. *10.1 AMD 1982 Stock Option Plan, as amended. *10.2 AMD 1986 Stock Option Plan, as amended. *10.3 AMD 1992 Stock Incentive Plan, as amended. *10.4 AMD 1980 Stock Appreciation Rights Plan, as amended. *10.5 AMD 1986 Stock Appreciation Rights Plan. *10.6 MMI 1975 Stock Option Plan, as amended, filed as Exhibit 10.6 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.7 MMI 1981 Incentive Stock Option Plan, as amended. *10.8 Forms of Stock Option Agreements, filed as Exhibit 10.8 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.9 Form of Limited Stock Appreciation Rights Agreement, filed as Exhibit 4.11 to the Corporation's Registration Statement on Form S-8 (No. 33-26266) is hereby incorporated by reference. *10.10 AMD 1987 Restricted Stock Award Plan, as amended. *10.11 Forms of Restricted Stock Agreements, filed as Exhibit 10.11 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference.
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EXHIBIT NUMBER DESCRIPTION - - ---------- ------------------------------------------------------------------ *10.12 Resolution of Board of Directors on September 9, 1981, regarding acceleration of vesting of all outstanding stock options and associated limited stock appreciation rights held by officers under certain circumstances, filed as Exhibit 10.10 to the Corporation's Annual Report on Form 10-K for fiscal year ended March 31, 1985, is hereby incorporated by reference. *10.13(a) Employment Agreement dated July 1, 1991, between the Corporation and W. J. Sanders III, filed as Exhibit 10.1 to the Corporation's Form 8-K dated September 3, 1991, is hereby incorporated by reference. *10.13(b) Amendment dated August 27, 1991, to Employment Agreement between the Corporation and W. J. Sanders III, filed as Exhibit 10.2 to the Corporation's Form 8-K dated September 3, 1991, is hereby incorporated by reference. *10.14 Management Continuity Agreement between the Corporation and W. J. Sanders III, filed as Exhibit 10.14 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.15 Bonus Agreement between the Corporation and Richard Previte, filed as Exhibit 10.15 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.16 Executive Bonus Plan, filed as Exhibit 10.16 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. *10.17 Bonus Agreement between the Corporation and Anthony B. Holbrook, filed as Exhibit 10.17 for the fiscal year ended December 27, 1992, is hereby incorporated by reference. *10.18 Form of Bonus Deferral Agreement, filed as Exhibit 10.12 to the Corporation's Annual Report on Form 10-K for the fiscal year ended March 30, 1986, is hereby incorporated by reference. *10.19 Form of Executive Deferral Agreement, filed as Exhibit 10.17 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, is hereby incorporated by reference. *10.20 Director Deferral Agreement of R. Gene Brown, filed as Exhibit 10.18 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 31, 1989, is hereby incorporated by reference. *10.21 License Agreement with Western Electric Company, Incorporated, filed as Exhibit 10.5 to the Corporation's Annual Report on Form 10-K for fiscal year ended 1979, is hereby incorporated by reference. 10.22 Intellectual Property Agreements with Intel Corporation, filed as Exhibit 10.21 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. 10.23 Award of Arbitrator in Case No. 626879 between the Corporation and Intel Corporation, filed as Exhibit 28.2 on Form 8-K dated February 24, 1992, is hereby incorporated by reference. 10.24 Form of Indemnification Agreements with former officers of Monolithic Memories, Inc., filed as Exhibit 10.22 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1987, is hereby incorporated by reference. 10.25 Agreement and Plan of Reorganization between Monolithic Memories Inc., the Corporation and Advanced Micro Devices Merger Corporation, filed as Annex A to the Corporation's Amendment No. 1 to Registration Statement on Form S-4 (No. 33-15015), dated June 25, 1987, is hereby incorporated by reference. *10.26 Form of Management Continuity Agreement, filed as Exhibit 10.25 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 29, 1991, is hereby incorporated by reference. **10.27(a) Joint Venture Agreement between the Corporation and Fujitsu Limited. **10.27(b) Technology Cross-License Agreement between the Corporation and Fujitsu Limited.
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EXHIBIT NUMBER DESCRIPTION - - ---------- ------------------------------------------------------------------ **10.27(c) AMD Investment Agreement between the Corporation and Fujitsu Limited. **10.27(d) Fujitsu Investment Agreement between the Corporation and Fujitsu Limited. **10.27(e) Joint Venture License Agreement between the Corporation and Fujitsu Limited. **10.27(f) Joint Development Agreement between the Corporation and Fujitsu Limited. 10.28 Credit Agreement dated as of January 4, 1993, among Advanced Micro Devices, Inc., Bank of America National Trust and Savings Association as Agent, The First National Bank of Boston as Co-Agent, filed as Exhibit 10.27 to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(a) Amended and Restated Guaranty dated as of January 4, 1993, by Advanced Micro Devices, Inc. in favor of CIBC Inc., filed as Exhibit 10.28(a) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(b) Building Lease by and between CIBC Inc. and AMD International Sales & Service, Ltd. dated as of September 22, 1992, filed as Exhibit 10.28(b) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(c) First Amendment to Building Lease dated December 22, 1992, by and between CIBC Inc. and AMD International Sales & Service, Ltd., filed as Exhibit 10.28(c) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(d) Land Lease by and between CIBC Inc. and AMD International Sales & Service, Ltd. dated as of September 22, 1992, filed as Exhibit 10.28(d) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. 10.29(e) First Amendment to Land Lease dated December 22, 1992, by and between CIBC Inc. and AMD International Sales & Service, Ltd., filed as Exhibit 10.28(e) to the Corporation's Annual Report on Form 10-K for the fiscal year ended December 27, 1992, is hereby incorporated by reference. *10.30 Executive Savings Plan. *10.31 Form of Split Dollar Agreement. *10.32 Form of Collateral Security Assignment Agreement. *10.33 Forms of Stock Option Agreements to the 1992 Stock Incentive Plan, filed as Exhibit 4.3 to the Corporation's Registration Statement on Form S-8 (No. 33-46577) is hereby incorporated by reference. *10.34 1992 United Kingdom Share Option Scheme, Filed as Exhibit 4.2 to the Corporation's Registration on Form S-8 (No. 33-46577) is hereby incorporated by reference. 11.1 Statement re computation of per share earnings. 13. 1993 Annual Report to Stockholders which have been incorporated by reference into Parts I, II, and IV of this annual report. To the extent filed, refer to the front page hereinabove. 22. List of AMD subsidiaries. 24. Consent of Independent Auditors, refer to page F-2 hereinabove. 25. Power of Attorney.
Exhibits 10.27(a)-(f) are the only Exhibits attached to Amendment No. 1 to this Report. The Corporation will furnish a copy of any exhibit on request and payment of the Corporation's reasonable expenses of furnishing such exhibit. * Management contracts and compensatory plans or arrangements required to be filed as an Exhibit to comply with Item 14(a)(3). ** Confidential treatment has been requested as to certain portions of these Exhibits. The exhibits to Amendment No. 1 to this Report contain certain information not included in Exhibits 10.27(a)-(f) of the original report. EX-10 2 JOINT VENTURE AMD AND FUJITSU 1 EXHIBIT 10.27(a) ---------------------------- JOINT VENTURE AGREEMENT BETWEEN ADVANCED MICRO DEVICES, INC. AND FUJITSU LIMITED ---------------------------- Confidential portions of this document have been deleted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 2 JOINT VENTURE AGREEMENT TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Article 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 2 Section 1.1 "AMD INVESTMENT AGREEMENT". . . . . . . . . . 2 Section 1.2 "APPLICABLE LAW". . . . . . . . . . . . . . . 2 Section 1.3 "ARTICLES OF INCORPORATION" . . . . . . . . . 2 Section 1.4 "ASSOCIATED AGREEMENTS" . . . . . . . . . . . 2 Section 1.5 "BOARD OF DIRECTORS". . . . . . . . . . . . . 2 Section 1.6 "BUSINESS PLAN" . . . . . . . . . . . . . . . 2 Section 1.7 "COMBINED FINANCIAL CONTRIBUTION". . . . . . . . . . . . . . . . 3 Section 1.8 "CONFIDENTIAL INFORMATION". . . . . . . . . . 3 Section 1.9 "EFFECTIVE DATE". . . . . . . . . . . . . . . 3 Section 1.10 "EPROM". . . . . . . . . . . . . . . . . . . 3 Section 1.11 "FLASH MEMORY" . . . . . . . . . . . . . . . 3 Section 1.12 "FUJITSU INVESTMENT AGREEMENT" . . . . . . . 4 Section 1.13 "GOVERNMENTAL APPROVALS" . . . . . . . . . . 4 Section 1.14 "GOVERNMENTAL AUTHORITY" . . . . . . . . . . 4 Section 1.15 "INDEPENDENT ACCOUNTING FIRM". . . . . . . . 4 Section 1.16 "INVESTMENT AGREEMENTS". . . . . . . . . . . 4 Section 1.17 "JOINT DEVELOPMENT AGREEMENT". . . . . . . . 4 Section 1.18 "JOINT VENTURE LICENSE AGREEMENT". . . . . . . . . . . . . . . . . 5 Section 1.19 "JV PRODUCT" . . . . . . . . . . . . . . . . 5 Section 1.20 "LAND LEASE" . . . . . . . . . . . . . . . . 5 Section 1.21 "NONDISCLOSURE AGREEMENTS" . . . . . . . . . 5 Section 1.22 "PERCENTAGE INTEREST". . . . . . . . . . . . 5 Section 1.23 "REGULATIONS OF THE BOARD OF DIRECTORS". . . . . . . . . . . . . . . . . 5 Section 1.24 "TECHNOLOGY CROSS-LICENSE AGREEMENT". . . . . . . . . . . . . . . . . 5 Article 2. INCORPORATION. . . . . . . . . . . . . . . . . . . . . . . 5 Section 2.1 Formation of JV . . . . . . . . . . . . . . . 5 Section 2.2 The Name of JV. . . . . . . . . . . . . . . . 5 Section 2.3 Articles of Incorporation . . . . . . . . . . 6 Section 2.4 Capital Contributions . . . . . . . . . . . . 6 Section 2.5 Reimbursement of Incorporation Expenses. . . . . . . . . . . . . . . . . . . 7 Article 3. MANAGEMENT OF JV . . . . . . . . . . . . . . . . . . . . . 7 Section 3.1 Meetings and Resolutions of Shareholders. . . . . . . . . . . . . . . . . 7 Section 3.2 Election of Directors and Statutory Auditors. . . . . . . . . . . . . . 8 Section 3.3 Representative Directors and Directors with Titles . . . . . . . . . . . . 9 Section 3.4 Meetings and Resolutions of the Board of Directors. . . . . . . . . . . . . . 9 Section 3.5 Statement of Policy.. . . . . . . . . . . . . 12
i 3 Section 3.6 Manufacturing Activity. . . . . . . . . . . . 12 Section 3.7 [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. . . . . . . . . . . . 13 Section 3.8 Accounting and Reporting Obligations . . . . . . . . . . . . . . . . . 13 Article 4. RIGHTS AND OBLIGATIONS OF THE PARTIES. . . . . . . . . . . . . 15 Section 4.1 Financing . . . . . . . . . . . . . . . . . . 15 Section 4.2 Land Lease. . . . . . . . . . . . . . . . . . 15 Section 4.3 Transfer of Shares; Right of First Refusal. . . . . . . . . . . . 17 Section 4.4 Transfer of Fujitsu Employees . . . . . . . . 19 Section 4.5 Transfer and Assignment of AMD Employees . . . . . . . . . . . . . . . . . . 19 Section 4.6 Confidentiality . . . . . . . . . . . . . . . 19 Article 5. ASSOCIATED AGREEMENTS. . . . . . . . . . . . . . . . . . . . . 22 Article 6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 23 Section 6.1 Representations and Warranties of Fujitsu . . . . . . . . . . . . . . . . . . . 23 Section 6.2 Representations and Warranties of AMD. . . . . . . . . . . . . . . . . . . . 24 Article 7. TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . . . 26 Section 7.1 Effective Date. . . . . . . . . . . . . . . . 26 Section 7.2 Term. . . . . . . . . . . . . . . . . . . . . 26 Section 7.3 Triggering Events . . . . . . . . . . . . . . 27 Section 7.4. Causes of Dissolution . . . . . . . . . . . . 28 Section 7.5. Election of Non-Triggering Party . . . . . . . . . . . . . . . . . . . . 29 Section 7.6 Noncompetition; Nonsolicitation . . . . . . . 29 Section 7.7. Name. . . . . . . . . . . . . . . . . . . . . 30 Section 7.8. Rights Under Associated Agreements. . . . . . . . . . . . . . . . . . 30 Article 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 31 Section 8.1. Force Majeure. . . . . . . . . . . . . . . . 31 Section 8.2. Assignment . . . . . . . . . . . . . . . . . 31 Section 8.3. Survival . . . . . . . . . . . . . . . . . . 31 Section 8.4. Notices. . . . . . . . . . . . . . . . . . . 32 Section 8.5. Export Control . . . . . . . . . . . . . . . 33 Section 8.6. Arbitration. . . . . . . . . . . . . . . . . 34 Section 8.7. Entire Agreement . . . . . . . . . . . . . . 35 Section 8.8. Modification . . . . . . . . . . . . . . . . 35 Section 8.9. Announcement . . . . . . . . . . . . . . . . 35 Section 8.10. Severability . . . . . . . . . . . . . . . . 35 Section 8.11. No Waiver. . . . . . . . . . . . . . . . . . 36 Section 8.12. Governing Law. . . . . . . . . . . . . . . . 36 Section 8.13. Language . . . . . . . . . . . . . . . . . . 36 Section 8.14. No Agency. . . . . . . . . . . . . . . . . . 36 Section 8.15. No Third Party Beneficiaries . . . . . . . . 37 Section 8.16. Headings . . . . . . . . . . . . . . . . . . 37
ii 4
Section 8.17. Construction and Reference . . . . . . . . . 37 Section 8.18. Governmental Approvals . . . . . . . . . . . 37 Section 8.19. Counterparts . . . . . . . . . . . . . . . . 37
iii 5 JOINT VENTURE AGREEMENT Joint Venture Agreement ("Agreement") dated as of March 30, 1993, by and between ADVANCED MICRO DEVICES, INC. ("AMD"), a Delaware corporation having its principal place of business at 901 Thompson Place, Sunnyvale, California 94088-3453, U.S.A., and FUJITSU LIMITED ("Fujitsu"), a Japanese corporation having its registered place of business at 1015 Kamikodanaka, Nakahara-ku, Kawasaki-shi, Kanagawa-ken 211, Japan. INTRODUCTION A. AMD is engaged in the manufacture and sale of integrated circuit devices and has a wide and rich experience in this field of industry. B. Fujitsu is also engaged in the manufacture and sale of integrated circuit devices and has a wide and rich experience in this field of industry. C. AMD and Fujitsu desire to form a company with limited liability (kabushiki kaisha) under the laws of Japan ("JV") for the purpose of manufacturing certain integrated circuit devices, such as certain densities of erasable programmable read only memory ("EPROM") and flash memory ("Flash Memory") as more specifically defined by this Agreement. D. AMD and Fujitsu desire to collaborate in developing certain process technologies and designs to be utilized in connection with such EPROM and Flash Memory. E. AMD and Fujitsu desire to license to JV and to cross- license to each other certain technologies which are necessary 1 6 for JV to manufacture such integrated circuit devices. ACCORDINGLY, in consideration of the foregoing premises and the covenants contained herein, the parties agree as follows: Article 1. DEFINITIONS. For the purpose of this Agreement, the following terms shall have the meanings hereinafter set forth: Section 1.1 "AMD INVESTMENT AGREEMENT" shall have the meaning set forth in Section 5.E. Section 1.2 "APPLICABLE LAW" shall mean, with respect to a party, any domestic or foreign, federal, state or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any Governmental Authority applicable to such party or its properties, business or assets. Section 1.3 "ARTICLES OF INCORPORATION" shall mean articles of incorporation of JV written in the Japanese language and attached hereto as Exhibit A-1, as amended from time to time. For the convenience of the parties an English translation of the Articles of Incorporation is attached hereto as Exhibit A-2. Section 1.4 "ASSOCIATED AGREEMENTS" shall have the meaning ascribed to such term in Article 5. Section 1.5 "BOARD OF DIRECTORS" shall mean the board of directors of JV as from time to time constituted pursuant to the terms of this Agreement. Section 1.6 "BUSINESS PLAN" shall mean a business plan of JV agreed to in writing by both parties hereto, as from time to 2 7 time amended by a resolution of the Board of Directors. Section 1.7 "COMBINED FINANCIAL CONTRIBUTION" shall mean, with respect to a party, the sum of (i) capital contributions made by such party pursuant to Section 2.4, (ii) loans to JV guaranteed by such party pursuant to Sections 4.1.C. and 4.1.D. and (iii) loans made directly to, or otherwise arranged by, such party pursuant to Section 4.1.E. Section 1.8 "CONFIDENTIAL INFORMATION" shall mean any trade secrets, know-how, data, formulas, processes, intellectual property or other information, tangible or intangible, of one party that becomes known by the other party. Section 1.9 "EFFECTIVE DATE" shall mean the latest to occur of (a) the date of this Agreement, (b) the date on which all requisite Governmental Approvals have been obtained, or (c) the first date on which all of the Associated Agreements, other than the Joint Venture License Agreement, are in effect. Section 1.10 "EPROM" or "Electrically Programmable Read Only Memory" shall mean a non-volatile semiconductor memory device incorporating floating gate structure cells, which device is electrically programmable and erasable by using ultraviolet light. The device mainly consists of such floating gate structure cells with auxiliary logic circuits, if any, when such logic circuits are used solely for memory operation or interface to other products. OTPROM or One Time PROM, which is a certain non-volatile semiconductor device incorporating the same chip as EPROM and packaged without transparent windows for ultraviolet light, shall be included in the definition of EPROM. Section 1.11 "FLASH MEMORY" shall mean a non-volatile semiconductor memory device incorporating floating gate structure cells, which device is programmable and erasable by electrically 3 8 injecting and electrically discharging electric charges into and from floating gates. The device mainly consists of such floating gate structure cells, with auxiliary logic circuits, if any, when such logic circuits are used solely for memory operation or interface to other products. Section 1.12 "FUJITSU INVESTMENT AGREEMENT" shall have the meaning set forth in Section 5.D. Section 1.13 "GOVERNMENTAL APPROVALS" means all approvals, consents, authorizations and similar actions from all Governmental Authorities that the parties agree are desirable in order to consummate the transactions contemplated hereunder or under any of the Associated Agreements. Section 1.14 "GOVERNMENTAL AUTHORITY" shall mean any foreign, domestic, federal, territorial, state or local governmental authority, quasi-governmental authority, court, government or self-regulatory organization, commission, tribunal, organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing. Section 1.15 "INDEPENDENT ACCOUNTING FIRM" shall mean a certified public accountant at audit firm qualified under the Japanese Certified Public Accountants Act, Law No. 103, 1948, as amended. Section 1.16 "INVESTMENT AGREEMENTS" shall have the meaning set forth in Section 5.E. Section 1.17 "JOINT DEVELOPMENT AGREEMENT" shall have the meaning set forth in Section 5.A. 4 9 Section 1.18 "JOINT VENTURE LICENSE AGREEMENT" shall have the meaning set forth in Section 5.C. Section 1.19 "JV PRODUCT" shall mean any product listed as a JV Product in the Joint Development Agreement, or so designated by the Board of Directors. Section 1.20 "LAND LEASE" shall have the meaning set forth in Section 4.2.A. Section 1.21 "NONDISCLOSURE AGREEMENTS" shall mean the Nondisclosure Agreements between Fujitsu and AMD dated March 12, 1992 and July 20, 1992 and the Confidentiality Agreement between Fujitsu and AMD dated October 16, 1992. Section 1.22 "PERCENTAGE INTEREST" shall mean with respect to a party, the percentage of JV's issued and outstanding shares held by such party. Section 1.23 "REGULATIONS OF THE BOARD OF DIRECTORS" shall have the meaning set forth in Section 3.4.F. Section 1.24 "TECHNOLOGY CROSS-LICENSE AGREEMENT" shall have the meaning set forth in Section 5.B. Article 2. INCORPORATION. Section 2.1 Formation of JV. Promptly following the Effective Date, the parties shall form JV in Japan for the purpose of the production, marketing and sale of JV Products. Section 2.2 The Name of JV. The name of JV shall be as set forth in the Articles of Incorporation in Japanese and "Fujitsu AMD Semiconductor Limited" in English. Fujitsu shall file a temporary application for registration to reserve JV's Japanese 5 10 name in Japan. Section 2.3 Articles of Incorporation. The Articles of Incorporation are hereby incorporated herein and made a part hereof. In the event of any ambiguity or conflict arising between the terms and conditions of this Agreement and those of the Articles of Incorporation, to the extent legally permissible, the terms and conditions of this Agreement shall prevail. Section 2.4 Capital Contributions. A. As soon as practicable following the Effective Date, each party shall purchase shares of common stock of JV as follows:
Party Number of Shares Consideration ----- ---------------- ------------- Fujitsu 1,001 Y50,050,000 AMD 999 Y49,950,000
B. Pursuant to a separate schedule to be agreed between the parties, the parties shall make additional capital contributions to JV until the parties' aggregate capital contributions reach Y40,000,000,000, and JV shall issue additional shares reflecting such contributions. Additional contributions shall be made by the parties in cash, in proportion to their respective Percentage Interests. C. The authorized capital of JV shall initially be Y400,000,000, to be represented by 8,000 shares of common stock with a par value of Y50,000 each. Thereafter, the authorized capital of JV shall be increased from time to time in accordance with a schedule to be agreed upon between the parties. As specified in the Business Plan, the maximum authorized capital of JV shall be Y40,000,000,000, to be represented by 800,000 shares of such common stock. 6 11 D. Unless otherwise agreed by both parties, Fujitsu shall hold 50.05%, and AMD 49.95%, of the issued and outstanding shares of JV. In the event that new shares of JV are issued, each of the parties shall have the right to purchase such shares in an amount that is proportionate to its respective Percentage Interest. Section 2.5 Reimbursement of Incorporation Expenses. JV shall reimburse Fujitsu for expenses incurred directly by Fujitsu in connection with the incorporation of JV to the extent permitted under the laws of Japan. Article 3. MANAGEMENT OF JV. Section 3.1 Meetings and Resolutions of Shareholders. A. Each party, in its capacity as a shareholder, shall have the right from time to time to call a meeting of the shareholders. B. The quorum required for a meeting of the shareholders shall be shareholders representing, in person or by proxy, not less than two thirds (2/3) of the total number of issued and outstanding shares of JV. C. Unless otherwise required by the laws of Japan or otherwise explicitly provided herein, no shareholders' resolutions shall be effective unless adopted by the affirmative votes of shareholders holding a majority of the shares present at a meeting of the shareholders. D. Resolutions with respect to the following matters shall be adopted by the affirmative vote of shareholders [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the issued and outstanding 7 12 shares of JV: (1) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (2) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. E. Interpreters may attend meetings of shareholders upon the request of either party. Section 3.2 Election of Directors and Statutory Auditors. A. JV shall be administered by a Board of Directors composed of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] directors, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] directors of whom shall be nominated by AMD, and [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of whom shall be [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of whom shall be nominated by Fujitsu. B. If a vacancy occurs on the Board of Directors, a new director shall be nominated by the party that nominated the director whose office has been vacated, and an election to fill such vacancy shall be held at a shareholders' meeting to be called without delay. C. JV shall have two (2) statutory auditors (kansayaku), [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The full-time statutory auditor (jookin kansayaku) shall be the statutory auditor nominated by Fujitsu. 8 13 D. The parties agree to exercise their respective voting rights as shareholders of JV so as to ensure that the persons nominated as directors and statutory auditors by the parties are elected. E. Each individual nominated by one party as a director or statutory auditor shall be subject to the reasonable approval of the other party. Section 3.3 Representative Directors and Directors with Titles. A. JV shall have a chairman and a vice chairman, each of whom shall be a representative director. The chairman shall be nominated by Fujitsu and the vice chairman by AMD. B. Two full-time standing directors (jookin torishimariyaku) shall be elected from among the directors nominated by Fujitsu. The Board of Directors shall determine whether such full-time standing directors shall be representative directors and/or directors with titles such as president, executive vice president, executive director or managing director. C. Each of the parties shall cause the directors it has nominated to exercise their voting rights as members of the Board of Directors so as to effect the election of the chairman, vice chairman, representative directors and directors with titles in accordance with Sections 3.3.A. and B. above. Section 3.4 Meetings and Resolutions of the Board of Directors. A. A regular meeting of the Board of Directors shall be held once each calendar quarter. 9 14 B. The chairman, the vice chairman, or any two directors acting together shall have the right to call, from time to time, a special meeting of the Board of Directors. C. The quorum required for a meeting of the Board of Directors shall be two thirds (2/3) of all the directors of JV. D. Resolutions of the Board of Directors shall be adopted by the affirmative vote of a majority of the members of the Board of Directors present at a meeting, except as provided in Section 3.4.E. below. E. Resolutions with respect to the following matters shall be adopted by the affirmative vote of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the entire Board of Directors: (1) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (2) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (3) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (4) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] (5) Approval of: a. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; b. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; 10 15 c. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; d. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; e. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; f. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; g. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; h. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; (6) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (7) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (8) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (9) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (10) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (11) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. 11 16 F. Following the formation of JV, the Board of Directors shall adopt Regulations of the Board of Directors written in the Japanese language, in the form of Exhibit B-1 hereto (the "Regulations of the Board of Directors"). For the convenience of the parties, an English translation of such Regulations is attached hereto as Exhibit B-2. G. When any issue cannot be resolved by the Board of Directors at two consecutive meetings, the managements of AMD and of Fujitsu (Electronic Devices Group, or its successor) shall consult with each other in a good faith attempt to resolve such issue. H. Interpreters may attend meetings of the Board of Directors upon the request of either party. Section 3.5 Statement of Policy. A. The business and affairs of JV shall be carried on and conducted in a sound, prudent and constructive manner for the purpose of building a successful and financially strong JV corporation. B. The day-to-day operations of JV shall be managed by the full-time standing directors nominated and elected under Section 3.3.B. above. Such operations shall be conducted in accordance with this Agreement, the Business Plan and the operating and capital budgets approved by the Board of Directors. Section 3.6 Manufacturing Activity. JV shall construct a semiconductor wafer fabrication facility capable of mass production with eight-inch wafer line, and shall manufacture JV Products in accordance with the Business Plan. 12 17 Section 3.7 [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 3.8 Accounting and Reporting Obligations. A. JV's fiscal year shall be the twelve (12) month period ending on March 31. Japanese accounting principles shall be adopted. B. JV shall provide the following reports and statements to the parties in English and Japanese within the time periods set forth below: (i) Within twenty (20) days after the closing of each month, a report on booking and billing monthly results, balance sheet, profit and loss statement, cash flow, head count and business operations. (ii) Within thirty (30) days after the closing of each quarter, a report on booking and billing quarterly results, balance sheet, profit and loss statement, cash flow, head count, financial change and business operations. (iii) Within three (3) months after the end of each fiscal year, a report on booking and billing annual results, balance sheet, profit and loss statement, cash flow, inventory of major properties, head count, shareholders' equity, business operation, and annual proposals governing appropriation of profits or covering losses. C. The parties agree that JV shall designate Fujitsu's Independent Accounting Firm, as approved by Fujitsu's shareholders, as the Independent Accounting Firm of JV, unless otherwise determined by the affirmative vote of shareholders holding not less than two-thirds (2/3) of the issued and 13 18 outstanding shares of JV. D. The annual accounting report of JV shall be audited at the expense of JV by its Independent Accounting Firm in accordance with the laws of Japan. E. Each party shall, upon reasonable written notice to JV and to the other party, have access to JV's books, records, procedures, employees and similar sources of data and information concerning JV's financial operations. F. Upon reasonable written notice to JV and the other party, but not more often than once every twelve (12) months, each party shall have a right to perform a special audit of JV by independent outside auditors, at that party's own cost. In addition, upon such reasonable notice each party shall have the right to perform or have performed, at that party's own cost, such audits as are necessary to meet such party's financial reporting obligations. G. The JV shall provide to each party full access to the books and records of JV, and shall provide to each party the accounting information such party requires to comply with its own financial reporting requirements, provided that any cost involved in providing such information shall be paid by the requesting party. H. The JV shall have the right, and each party hereto shall have the right to compel JV, to have independent outside auditors, upon reasonable written notice to the other party and not more than once each twelve (12) months, at JV's cost, examine the books and records of the other party for the purpose of auditing the calculation of sales proceeds or any amounts due to JV. 14 19 Article 4. RIGHTS AND OBLIGATIONS OF THE PARTIES. Section 4.1 Financing. A. Except as otherwise explicitly agreed, the parties shall bear equal responsibility for financing JV. B. Both parties recognize that, in addition to the capital contributions made pursuant to Section 2.4 above, JV will need additional sums for working capital and for long term capital, which shall be borrowed by JV pursuant to arrangements to be made by the parties. C. Until JV becomes self-financing, the parties shall guarantee third-party loans made to JV in proportion to their respective Percentage Interests. D. Both parties shall use their best efforts to arrange for JV to receive loans from Japanese government-related financial institutions for JV's long-term capital. Such loans shall be guaranteed by the parties in proportion to their respective Percentage Interests. E. In the event that JV is unable to secure necessary financing, the parties themselves shall advance the necessary funds to JV, each party lending that portion of the required amount which is proportionate to such party's Percentage Interest. Each party may arrange third-party financing, with or without such party's guaranty, in lieu of any such advance. Section 4.2 Land Lease. A. JV shall construct its semiconductor wafer fabrication facility on land to be leased from Fujitsu pursuant to a 30-year lease (the "Land Lease"), which lease may be renewed 15 20 for additional terms in accordance with Japan's Land and House Leasing Act of 1991, as amended, and the terms and conditions of such lease agreement. B. (i) If all, or substantially all, of the assets of JV are to be offered for sale (whether in connection with a dissolution of JV or otherwise) Fujitsu shall have the right to purchase JV's fabrication facility at a price equal to the book value of such facility, as determined by JV's Independent Accounting Firm as of the close of the preceding quarter, and shall be given written notice of such intended sale not less than one hundred and twenty (120) days prior to any such offering for sale. Fujitsu shall either exercise or decline to exercise such right, by a written statement delivered within one hundred and twenty (120) days following the receipt of such notice. Failure to deliver such notice within such period shall be considered a declination by Fujitsu. If Fujitsu declines to exercise such right to purchase, it will consent to the assignment of JV's interest under the Land Lease to the purchaser of such assets. (ii) AMD will take all action necessary to assure that if it transfers shares of JV to any person or entity other than Fujitsu or a wholly-owned subsidiary of Fujitsu, the transferee shall agree in writing that Fujitsu shall be entitled to exercise a right of first refusal to acquire all, but not less than all, of the JV shares to be so transferred, at the purchase price at which the transferee intends to sell such shares. AMD agrees to review with Fujitsu the precise language to be incorporated in appropriate documentation under the circumstances, in an effort to perfect such statement of rights to Fujitsu's reasonable satisfaction. Such documentation will include a provision that if Fujitsu declines to acquire such shares: (x) the seller shall be entitled to sell such shares at the reported price, but not less than the reported price, within ninety (90) days after the end of the period within which Fujitsu 16 21 may exercise its right to acquire such shares, (y) Fujitsu will consent to the assignment of JV's interest under the Land Lease, and (z) Fujitsu shall give such consents as may be required to continue to operate the facility; provided, however, that Fujitsu will not be required to incur any expense or obligation in order to carry out the provisions of this sentence. Section 4.3 Transfer of Shares; Right of First Refusal. A. Except as otherwise explicitly provided in Section 4.2 or 7.5, no share or any interest therein in JV shall be validly sold, transferred or otherwise disposed of for consideration or otherwise, and no purported transferee shall be recognized as a shareholder of JV for any purpose whatsoever unless such transfer is in accordance with this Section 4.3. B. Neither party shall pledge or otherwise encumber any of its shares or any interest therein in JV at any time without the prior written consent of the other party. C. Neither party shall sell or transfer any shares in JV for a period of five (5) years following the Effective Date. In the event that either party (the "Selling Party") desires to sell or transfer its shares in JV following such five (5)-year period, it shall first offer to sell the shares to the other party (the "Nonselling Party") and, upon the request of such Nonselling Party, to any third party designated by such Nonselling Party, at a price equal to the lower of (i) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] or (ii) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. No owner of JV shares may sell or transfer less than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of its shares in JV. 17 22 D. (i) A Nonselling Party to which an offer is made pursuant to Section 4.3.C. above and/or any third party designated by such Nonselling Party, shall have one hundred and twenty (120) days from the date of receipt of the offer, during which period such Nonselling Party shall have reasonable access to JV's books and records, within which to accept such offer. (ii) In the event that the Nonselling Party and/or its designee do not accept the offer to purchase all of the Selling Party's shares, the Selling Party may, within ninety (90) days following the expiration of such one hundred and twenty (120) day period, seek the Board of Directors' approval, by not less than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] votes, of a sale or transfer of its shares to a specified third party; provided, however, that in the event that a sale or transfer to such third party is proposed on terms less favorable to the Selling Party than the terms of the offer made pursuant to Section 4.3.C. above, the Nonselling Party and/or a third party designated by such Nonselling Party shall have the right to purchase the shares on such less favorable terms, which right may be exercised by notice to the Selling Party within fourteen (14) days following the date on which such sale or transfer is proposed to the Board of Directors. (iii) In the event that the Nonselling Party and/or its designee elects to purchase the Selling Party's shares pursuant to Section 4.3.D. (i) or (ii), payment shall be made within sixty (60) days of such election. E. It shall be a condition to any sale or transfer to any third party other than a third party designated by the Nonselling Party that such third party upon request of the Nonselling Party shall become a party to this Agreement, the Joint Development Agreement, the Joint Venture License Agreement 18 23 and/or any other agreements, and assume such obligations reasonably deemed by the Nonselling Party to be necessary in light of the identity and nature of the new shareholder. F. In the event that either party transfers its shares in JV pursuant to this Section 4.3, the Nonselling Party shall have the right to terminate this Agreement and/or either or both of the Investment Agreements. G. All offers and acceptances pursuant to this Section 4.3 shall be made by written notice to the other party. Section 4.4 Transfer of Fujitsu Employees. Fujitsu shall have the right to designate Fujitsu employees to be transferred to JV and to determine when such transferred employees shall return to Fujitsu. AMD acknowledges and agrees that JV shall accept and release such employees in accordance with Fujitsu's instructions. It is understood that any retirement allowance payments made to such employees will be prorated between JV and Fujitsu based on total years of service. Section 4.5 Transfer and Assignment of AMD Employees. AMD may transfer or assign its personnel to JV [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], subject to the approval of the full-time standing directors, such approval not to be unreasonably withheld. It is anticipated that up to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] individuals or [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] whichever is smaller, of JV employees working in any particular discipline may be composed of AMD transferees or assignees. Section 4.6 Confidentiality. A. Except as expressly authorized by the other party, each party agrees not to disclose, use or permit the disclosure or use by others of any Confidential Information unless and to the extent such Confidential Information (i) is not marked or designated in writing as confidential and is provided for a 19 24 purpose that reasonably contemplates disclosure to or use by others, (ii) becomes a matter of public knowledge through no action or inaction of the party receiving the Confidential Information, (iii) was in the receiving party's possession before receipt from the party providing such Confidential Information, (iv) is rightfully received by the receiving party from a third party without any duty of confidentiality, (v) is disclosed to a third party by the party providing the Confidential Information without a duty of confidentiality on the third party, (vi) is disclosed by the receiving party despite the exercise of the same degree of care used by the receiving party to safeguard its own similar Confidential Information, but the receiving party shall take all necessary action to prevent any further disclosure, (vii) is disclosed with the prior written approval of the party providing such Confidential Information, or (viii) is independently developed by the receiving party without any use of the other party's Confidential Information. Information shall not be deemed to be available to the general public for the purpose of the exclusion (ii) above with respect to each party (x) merely because it is embraced by more general information in the prior possession of recipient or others, or (y) merely because it is expressed in public literature in general terms not specifically in accordance with the Confidential Information. B. In furtherance, and not in limitation of the foregoing Section 4.6.A., each party agrees to do the following with respect to any such Confidential Information: (i) exercise the same degree of care to safeguard the confidentiality of, and prevent the unauthorized use of, such information as that party exercises to safeguard the confidentiality of its own Confidential Information; (ii) restrict disclosure of such information to those of its employees and agents who have a "need to know", and (iii) instruct and require such employees, sublicensees, and agents to maintain the confidentiality of such information and not to use such Confidential Information except 20 25 as expressly permitted herein. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documentation or other materials. C. The foregoing confidentiality obligation shall also apply to the contents of this Agreement. D. The obligations under this Section 4.6 shall not prevent the parties from disclosing the Confidential Information or terms of this Agreement to any Governmental Authority as required by law (provided that the party intending to make such disclosure in such circumstances has given the other party prompt notice prior to making such disclosure so that the other party may seek a protective order or other appropriate remedy prior to such disclosure and cooperates fully with such other party in seeking such order or remedy). E. Notwithstanding anything else contained herein, either party may disclose the catalog specifications generated under Section 5.3(a) of the Joint Development Agreement to its potential customers. F. The obligations under this Section 4.6 shall apply with respect to any Confidential Information for a period of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] years from the date of disclosure of such Confidential Information to the other party, unless with respect to any particular Confidential Information the providing party in good faith notifies the receiving party that a longer period shall apply, in which case the obligations under this Section 4.6 with respect to such Confidential Information shall apply for such longer period. 21 26 Article 5. ASSOCIATED AGREEMENTS. The following associated agreements (the "Associated Agreements") shall be entered into on or prior to the Effective Date; provided, however, that the Joint Venture License Agreement only shall be entered into as soon after the Effective Date as is reasonably practicable: A. A Joint Development Agreement between AMD and Fujitsu dated as of March 1993 providing for the joint development of integrated circuit devices (the "Joint Development Agreement"). B. A Technology Cross-License Agreement between AMD and Fujitsu dated as of March 1993 providing for the cross- licensing of certain of the parties' respective proprietary semiconductor related intellectual property rights (the "Technology Cross-License Agreement"). C. A Joint Venture License Agreement among AMD, Fujitsu and JV dated as of March 1993 (or promptly thereafter) providing for the license by the parties to JV of certain proprietary technologies and sublicensable technologies necessary for manufacturing JV Products (the "Joint Venture License Agreement"). D. An Investment Agreement between AMD and Fujitsu dated as of March 1993 providing for the purchase of stock in AMD by Fujitsu (the "Fujitsu Investment Agreement"). E. An Investment Agreement between Fujitsu and AMD dated as of March 1993 providing for the purchase of stock in Fujitsu by AMD (the "AMD Investment Agreement," collectively with the Fujitsu Investment Agreement, the "Investment Agreements"). 22 27 F. Those certain letters from AMD to Fujitsu, signed by both parties and dated as of March 1993, setting forth the parties' agreement as to certain matters including the Governmental Approvals referenced in Section 1.13 of this Agreement. Article 6. REPRESENTATIONS AND WARRANTIES Section 6.1 Representations and Warranties of Fujitsu. Fujitsu hereby represents and warrants to AMD, as of the date hereof and as of the Effective Date, as follows: A. Corporate Organization; Etc. Fujitsu is a corporation duly organized and validly existing under the laws of Japan. B. Authorization; Etc. Fujitsu has full corporate power and authority to enter into this Agreement and those of the Associated Agreements to which it is a party and to carry out the transactions contemplated hereby and thereby. Fujitsu has taken all action required by law, its articles of incorporation or otherwise to authorize the execution and delivery of this Agreement and those of the Associated Agreements to which it is a party. Each of this Agreement and the Associated Agreements to which it is a party is or will be the valid and binding obligation of Fujitsu, subject to receipt of necessary Governmental Approvals, enforceable in accordance with its respective terms, except that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. 23 28 C. No Violation. Neither the execution and delivery by Fujitsu of this Agreement and those of the Associated Agreements to which it is a party, nor the consummation of the transactions contemplated hereby and thereby, will (i) conflict with or result in a breach of any provision of Fujitsu's articles of incorporation, (ii) conflict with or result in the breach of any term, condition or provision of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration with respect to, or result in the creation of any lien, charge or encumbrance upon any property or assets of Fujitsu pursuant to, or otherwise require the consent of any person under, any agreement or obligation to which Fujitsu is a party or by which any of its properties or assets may be bound, or (iii) violate or conflict with any Applicable Law applicable to Fujitsu or any of its properties or assets, subject to obtaining the requisite Governmental Approvals. D. Consents and Approvals of Governmental Authorities. Except for the Governmental Approvals, no consent, approval or authorization of, or declaration, filing or registration with, any Governmental Authority is required to be obtained by Fujitsu in connection with the execution, delivery and performance of this Agreement and those of the Associated Agreements to which it is a party, and the consummation of the transactions contemplated hereby and thereby. E. Regulatory Applications. The information provided by Fujitsu for use in the applications for the Governmental Approvals will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Section 6.2 Representations and Warranties of AMD. AMD hereby represents and warrants to Fujitsu, as of the date hereof 24 29 and as of the Effective Date, as follows: A. Corporate Organization; Etc. AMD is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. B. Authorization; Etc. AMD has full corporate power and authority to enter into this Agreement and those of the Associated Agreements to which it is a party and to carry out the transactions contemplated hereby and thereby. AMD has taken all actions required by law, its certificate of incorporation and bylaws or otherwise to authorize the execution and delivery of this Agreement and those of the Associated Agreements to which it is a party. Each of the Associated Agreements to which it is a party and this Agreement is or will be the valid and binding obligation of AMD, subject to receipt of necessary Governmental Approvals, enforceable in accordance with their respective terms, except that such enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. C. No Violation. Neither the execution and delivery by AMD of this Agreement and those of the Associated Agreements to which it is a party, nor the consummation of the transactions contemplated hereby and thereby, will (i) conflict with or result in a breach of any provision of the certificate of incorporation or bylaws of AMD, (ii) conflict with or result in the breach of any term, condition or provision of, or constitute a default under, or give rise to any right of termination, cancellation or acceleration with respect to, or result in the creation of any lien, charge or encumbrance upon any property or assets of AMD 25 30 pursuant to, or otherwise require the consent of any person under, any agreement or obligation to which AMD is a party or by which any of its properties or assets may be bound, or (iii) violate or conflict with any Applicable Law applicable to AMD or any of its properties or assets, subject to obtaining the requisite Governmental Approvals. D. Consents and Approvals of Governmental Authorities. Except for the Governmental Approvals, no consent, approval or authorization of, or declaration, filing or registration with, any Governmental Authority is required to be obtained by AMD in connection with the execution, delivery and performance of this Agreement and those of the Associated Agreements to which it is a party and the consummation of the transactions contemplated hereby and thereby. E. Regulatory Applications. The information provided by AMD for use in the applications for the Governmental Approvals will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Article 7. TERM AND TERMINATION. Section 7.1 Effective Date. This Agreement shall come into force on the Effective Date. If the Effective Date does not occur within one (1) year of the date hereof, unless otherwise agreed by the parties, either party may terminate this Agreement effective upon written notice to the other party. Section 7.2 Term. The term of this Agreement shall continue for so long as JV remains in existence, unless earlier terminated by mutual agreement of the parties or as provided herein. 26 31 Section 7.3 Triggering Events. The occurrence of any of the following events shall constitute a triggering event ("Triggering Event") hereunder on the part of the party with respect to which such event occurs ("Triggering Party"); and each party shall inform the other party in writing of the occurrence of any Triggering Event when known to such party. A. A material breach of this Agreement, the AMD Investment Agreement, the Fujitsu Investment Agreement, the Joint Development Agreement or the Joint Venture License Agreement by the Triggering Party, or a material misrepresentation by the Triggering Party with respect to any condition, warranty, representation or agreement contained in this Agreement, the AMD Investment Agreement, the Fujitsu Investment Agreement, the Joint Development Agreement or the Joint Venture License Agreement is not cured within ninety (90) days after the Triggering Party receives written notice thereof from the non-Triggering Party; provided that failure by either party to comply with the terms of Section 4.1.E. shall not be considered a material default until the earlier of (a) an aggregate of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] months of delay, or (b) the non-complying party is in default of a payment obligation that allows creditors to accelerate the maturity date of indebtedness in an amount in excess of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of such party's shareholders' equity. B. A Triggering Party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, or composition for the benefit of creditors, which petition or proceeding is not dismissed within sixty (60) days after filing. 27 32 C. A Triggering Party assigns all or substantially all of the assets of its semiconductor business to any third party, or incurs in one transaction or series of related transactions a change in ownership of more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of its capital stock. D. A third party (other than a bank, insurance company or other financial or investment company or institution) acquires a greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership interest in a Triggering Party and either a seat on the board of directors or a position of management in such party where such acquisition of ownership and management position or seat on the board of directors in such Triggering Party is judged by the non- Triggering Party after careful consideration to be detrimental. E. The Percentage Interest of the Triggering Party falls to one third (1/3), or less. F. A change occurs in the management of the Triggering Party as a result of a proxy solicitation contest, which change is judged by the non-Triggering Party after careful consideration to be detrimental to the affairs of JV. Section 7.4. Causes of Dissolution. JV shall be dissolved if: A. A Triggering Event has occurred and the non- Triggering Party elects to dissolve JV as provided in Section 7.5.A.(ii) B. The parties mutually agree to dissolve JV. 28 33 Section 7.5. Election of Non-Triggering Party. A. Upon the occurrence of a Triggering Event, the non- Triggering Party shall have the right: (i) to acquire the Triggering Party's shares of JV at a price equal to the lesser of (a) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] or (b) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]; (ii) to dissolve JV; (iii) to terminate this Agreement; (iv) to terminate either or both of the Investment Agreements; and/or (v) to pursue any other right or remedy available to it. B. In addition to the remedies set forth in Section 7.5.A. above, upon the occurrence of a breach by one party of its obligations pursuant to Section 2.4., 4.1.C., 4.1.D. or 4.1.E., the other party may elect, by notice to the party in breach, to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Said notice shall be effective to require such [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 90 days after such notice is given, provided that the party in breach shall be entitled to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to the effective date. Following such [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] as follows (i) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] then (ii) each [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. If and when a party [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] completely cures the breach that caused the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] it may cause a [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to the breach by giving notice to JV and the other party. Said notice shall be effective upon receipt, and shall substantiate the factual basis for such a [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to the breach; provided that the other party shall be entitled to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to giving such notice. C. The non-Triggering Party may exercise its rights pursuant to Section 7.5.A. and/or Section 7.5.B. at any time within one hundred and eighty (180) days after becoming aware of a Triggering Event. Section 7.6 Noncompetition; Nonsolicitation. If either party sells its shares in JV within ten (10) years after the Effective Date, whether pursuant to Section 4.3 or Section 7.5.A., for a period of two (2) years following such sale, such party shall be precluded from (a) manufacturing any EPROM or Flash Memory device that is or may be competitive with JV and is manufactured using wafer processes with geometries of 0.5 micron or less and that embodies, incorporates or is subject 29 34 to any intellectual property right owned by the other party or developed pursuant to the Joint Development Agreement or the Joint Venture License Agreement, or (b) employing, soliciting for employment or recommending for employment any person employed by JV (excluding employees transferred to JV from either Fujitsu or AMD who return to the party that transferred him or her). So long as a party holds shares in JV, except as otherwise agreed by the parties, such party shall be prohibited from (x) manufacturing any EPROM or Flash Memory device that is or may be competitive with JV and is manufactured using wafer processes with geometries of 0.5 micron or less, or (y) employing, soliciting for employment or recommending for employment any person employed by JV (excluding employees transferred to JV from either Fujitsu or AMD who return to the party that transferred him or her). Notwithstanding the foregoing, if either party sells its shares in JV, whether pursuant to Section 4.3 or Section 7.5.A., such party shall be entitled to continue to receive JV Products from JV and to sell JV Products to the extent necessary in order to fulfill such party's commitments pursuant to purchase orders issued by such party's customers and accepted by such party prior to the date on which such party ceased to be a shareholder. Section 7.7. Name. In the event that either party sells its shares in JV, whether pursuant to Section 4.3 or Section 7.5.A., the name of JV shall promptly be amended to eliminate any reference to such party. Section 7.8. Rights Under Associated Agreements. The rights and obligations of any Triggering Party under any of the Associated Agreements, and any other agreements ancillary to JV's operation, shall be specified in those agreements. 30 35 Article 8. MISCELLANEOUS. Section 8.1. Force Majeure. Neither party shall be liable for failure to perform, in whole or in material part, its obligations under this Agreement or any Associated Agreement if such failure is caused by any event or condition not existing as of the date of this Agreement and not reasonably within the control of the affected party, including without limitation, by fire, flood, typhoon, earthquake, explosion, strikes, labor troubles or other industrial disturbances, unavoidable accidents, war (declared or undeclared), acts of terrorism, sabotage, embargoes, blockage, acts of Governmental Authorities, riots, insurrections, or any other cause beyond the control of the parties; provided, that the affected party promptly notifies the other party of the occurrence of the event of force majeure and takes all reasonable steps necessary to resume performance of its obligations so interfered with. Section 8.2. Assignment. Neither this Agreement nor any of the rights and obligations created hereunder may be assigned, transferred, pledged, or otherwise encumbered or disposed of, in whole or in part, whether voluntary or by operation of law, or otherwise, by either party without the prior written consent of the other party; provided, however, that each party may assign its rights to acquire and hold shares in JV to a wholly-owned subsidiary of such party so long as such assignee remains wholly- owned, directly or indirectly, by such party. No such assignment shall relieve the assigning party of any of its obligations hereunder. This Agreement and the Associated Agreements shall inure to the benefit of and be binding upon the parties' permitted successors and assigns. Section 8.3. Survival. If a party sells all of its shares in JV, or if JV is dissolved, or if this Agreement is terminated, the obligations hereunder of each party to the other and to JV 31 36 will terminate, except that the obligations of the parties pursuant to Sections 2.5 ("Reimbursement of Incorporation Expenses"), 4.2.B. ("Land Lease"), 4.3 ("Transfer of Shares; Right of First Refusal"), 7.6 ("Noncompetition; Nonsolicitation"), 8.3 ("Survival"), 8.4 ("Notices"), 8.6 ("Arbitration"), 8.7 ("Entire Agreement"), 8.8 ("Modification"), 8.11 ("No Waiver"), 8.12 ("Governing Law"), 8.13 ("Language"), 8.15 ("No Third Party Beneficiaries"), and Article 6 ("Representations and Warranties") shall survive indefinitely the termination of this Agreement. The obligations of the parties pursuant to Section 4.6 ("Confidentiality") shall survive as provided in Section 4.6.F. Section 8.4. Notices. All notices and communications required, made or permitted hereunder shall be in writing and shall be delivered by hand or by messenger, or by recognized courier service (with written receipt confirming delivery), or by postage prepaid, return receipt requested, registered or certified airmail, addressed: If to AMD: Advanced Micro Devices, Inc. 915 De Guigne Drive Sunnyvale, CA 94086, USA Attn: Mr. Gene Conner Senior Vice President, Operations with a copy to: Thomas W. Armstrong, Esq. Vice President, General Counsel and Secretary 32 37 If to Fujitsu: Fujitsu Limited Furukawa Sogo Building 6-1, Marunouchi 2-chome Chiyoda-ku, Tokyo 100, Japan Attn: Mr. Hirohiko Kondo General Manager Electronic Devices Marketing Division with a copy to: Fujitsu Limited Marunouchi Center Bldg. 6-1, Marunouchi 1-chome Chiyoda-ku, Tokyo 100, Japan Attn: Mr. Gen Iseki General Manager Legal Division Each such notice or other communication shall for all purposes hereunder be treated as effective or as having been given as follows: (i) if delivered in person, when delivered, (ii) if sent by airmail, at the earlier of its receipt or at 5 p.m. local time of the recipient, on the seventh day after deposit in a regularly maintained receptacle for the deposit of airmail, and (iii) if sent by a recognized courier service, on the date shown in the written confirmation of delivery issued by such delivery service. Either party may change the address(es) and/or addressee(s) to whom notice may be given by giving notice pursuant to this section at least seven (7) days prior to the date the change becomes effective. Section 8.5. Export Control. Without in any way limiting the provisions of this Agreement, each of the parties agrees that no products procured from or technical information disclosed by the other party or JV under this Agreement are intended to or shall be exported or re-exported, directly or indirectly, to any destination restricted or prohibited by Applicable Law without necessary authorization by the Governmental Authorities. 33 38 Section 8.6. Arbitration. A. Any and all disputes arising under or affecting this Agreement shall be resolved exclusively by confidential arbitration pursuant to the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or such other location as may be agreed between the parties; provided, however, that the arbitrators shall be empowered to hold hearings at other locations within and without Japan. Each of the parties shall designate one arbitrator and the two arbitrators so designated shall select the third arbitrator. Arbitration proceedings shall be conducted in English with simultaneous translation into Japanese. Among the remedies available to them, the arbitrators shall be authorized to order the specific performance of provisions of this Agreement and of the Associated Agreements. The judgment upon award of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction including any court of competent jurisdiction in the United States or Japan, and each of the parties hereto unconditionally submits to the jurisdiction of such court for the purpose of any proceeding seeking such enforcement. Subject only to the provisions of Applicable Law, the procedure described in this Section 8.6 shall be the exclusive means of resolving disputes arising under or affecting this Agreement. B. All papers, documents or evidence, whether written or oral, filed with or presented to the panel of arbitrators shall be deemed by the parties and by the arbitrators to be Confidential Information. No party or arbitrator shall disclose in whole or in part to any other person any Confidential Information submitted in connection with the arbitration proceedings, except to the extent reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute. Confidential Information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to outside experts 34 39 requested by either party's counsel to furnish technical or expert services or to give testimony at the arbitration proceedings, subject, in the case of such experts, to execution of a legally binding written statement that such expert is fully familiar with the terms of this Section, agrees to comply with the confidentiality terms of this Section, and will not use any Confidential Information disclosed to such expert for personal or business advantage. Section 8.7. Entire Agreement. This Agreement, the Associated Agreements and the exhibits hereto and thereto, embody the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding, as of the Effective Date, all previous and contemporaneous communications, representations, agreements and understandings, whether written or oral, in existence on the date this Agreement is executed, including without limitation that certain Memorandum of Understanding between Fujitsu and AMD dated July 13, 1992 and the Nondisclosure Agreements. Neither party has relied upon any representation or warranty of the other party except as expressly set forth herein or in the Associated Agreements. Section 8.8. Modification. This Agreement and the surviving provisions thereof may not be modified or amended, in whole or part, except by a writing executed by duly authorized representatives of both parties. Section 8.9. Announcement. The parties may announce the existence of the parties' relationship and this Agreement at a time to be mutually determined. Neither party shall unreasonably withhold its consent to a time proposed by the other party. Section 8.10. Severability. If any term or provision of this Agreement shall be determined to be invalid or unenforceable under Applicable Law, such provision shall be deemed severed from 35 40 this Agreement, and a reasonable valid provision to be mutually agreed upon shall be substituted. In the event that no reasonable valid provision can be so substituted, the remaining provisions of this Agreement shall remain in full force and effect, and shall be construed and interpreted in a manner that corresponds as far as possible with the intentions of the parties as expressed in this Agreement. Section 8.11. No Waiver. Except to the extent that a party hereto may have otherwise agreed in writing, no waiver by that party of any condition of this Agreement or breach by the other party of any of its obligations or representations hereunder shall be deemed to be a waiver of any other condition or subsequent or prior breach of the same or any other obligation or representation by the other party, nor shall any forbearance by the first party to seek a remedy for any noncompliance or breach by the other party be deemed to be a waiver by the first party of its rights and remedies with respect to such noncompliance or breach. Section 8.12. Governing Law. The validity, construction, performance and enforceability of this Agreement shall be governed in all respects by the laws of Japan. Section 8.13. Language. This Agreement, and the exhibits and schedules hereto, except for the Articles of Incorporation and the Regulations of the Board of Directors, are in the English language, which language shall be controlling in all respects. The Articles of Incorporation and the Regulations of the Board of Directors are in the Japanese language, which language shall be controlling in all respects. Section 8.14. No Agency. This Agreement shall not constitute an appointment of either party as the legal representative or agent of the other party, nor shall either 36 41 party have any right or authority to assume, create or incur in any manner any obligation or other liability of any kind, express or implied, against, in the name or on behalf of, the other party. Nothing herein or in the transactions contemplated by this Agreement shall be construed as, or deemed to be, the formation of a partnership by or among the parties hereto. Section 8.15. No Third Party Beneficiaries. No provisions of this Agreement or any of the Associated Agreements are intended to, or shall be construed to, confer upon or give to any person other than the parties hereto and thereto, any rights, remedies or other benefits under or by reason of this Agreement or any Associated Agreement. Section 8.16. Headings. The section and other headings contained in this Agreement are for convenience of reference only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement. Section 8.17. Construction and Reference. Words used in this Agreement, regardless of the number or gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context shall require. Unless otherwise specified, all references in this Agreement to Sections are deemed references to be corresponding Sections in this Agreement, and all references in this Agreement to Exhibits are references to the corresponding Exhibits attached to this Agreement. Section 8.18. Governmental Approvals. Each of the parties shall use its reasonable best efforts to obtain all Governmental Approvals and shall cooperate with the other in good faith. Section 8.19. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and 37 42 all of which shall be deemed to constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives on the date set forth above. ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED /s/ W.J. SANDERS III /s/ TADASHI SEKIZAWA ____________________________ ___________________________ By: W.J. Sanders III By: Tadashi Sekizawa Title: Chairman and CEO Title: President Date: March 18, 1993 Date: March 30, 1993 38 43 EXHIBITS
EXHIBIT A-1 Articles of Incorporation (Japanese language) EXHIBIT A-2 Articles of Incorporation (English translation) EXHIBIT B-1 Regulations of the Board of Directors (Japanese language) EXHIBIT B-2 Regulations of the Board of Directors (English translation)
1 44 Exhibit 10.27(a) SUBSTITUTE EXHIBIT A-1 Exhibit A-1 to the Joint Venture Agreement is a Japanese language document. The registrant represents that Exhibit A-2 to the Joint Venuture Agreement constitutes a fair and accurate English translation of Exhibit A-1. ADVANCED MICRO DEVICES, INC. By: /s/ MARVIN D. BURKETT --------------------------------------- Marvin D. Burkett Its: Senior Vice President Chief Administrative Officer and Secretary, Chief Financial Officer and Treasurer 45 EXHIBIT A-2 10-K Exhibit 10.27(a) (TRANSLATION) ARTICLES OF INCORPORATION OF FUJITSU AMD SEMICONDUCTOR K.K. Chapter 1 General Provisions Article 1 (Name) The name of the Company shall be Fujitsu AMD Semiconductor Kabushiki Kaisha in Japanese and Fujitsu AMD Semiconductor Limited in English. Article 2 (Object) The object of the Company shall be to engage in the following businesses: (1) Manufacture and sales of semiconductor integrated circuits (2) All business incidental to or associated with the preceding Item Article 3 (Location of Head Office) The Company shall have its head office in Kawasaki-shi, Kanagawa-ken. Article 4 (Method of Public Notice) Public notice of the Company shall be made in the Official Gazette (Kampo). 46 Chapter 2 Shares Article 5 (Number of Authorized Shares) The total number of shares authorized to be issued by the Company shall be eight thousand (8,000). Article 6 (Par Value) All shares to be issued by the Company shall be par value common stock. The par value of each share shall be fifty thousand yen (#50,000). Article 7 (Kinds of Share Certificates) Kinds of share certificates to be issued by the Company shall be determined by the Board of Directors. Article 8 (Restriction on Transfer of Shares) Transfer of shares of the Company shall be subject to the approval of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the entire Board of Directors. Article 9 (Pre-emptive Right) 1. The shareholders shall have the pre-emptive right to subscribe to new shares if new shares are issued. 2. The pre-emptive right in the preceding Paragraph shall not be transferable separately from shares. 2 47 Article 10 (Registration of Transfer of Shares, etc.) Procedures of registration of transfer of shares, registration or cancellation of a pledge, registration or cancellation of a trust, re-issuance of share certificates or other matters relating to shares of the Company shall be determined by the Board of Directors. Article 11 (Registration of Shareholders, etc.) Shareholders, pledgees, trustees or their statutory representatives shall notify the Company of their names, addresses and seal impressions (specimen signature in case of a foreigner with the custom of signature), or of any change to the foregoing. Article 12 (Record Date and Suspension of Entry to Register of Shareholders) 1. The shareholders whose names are registered in the register of shareholders at the end of each business term shall be deemed to have the voting rights at the ordinary general meeting of shareholders for such business term. 2. If necessity arises, the Company may, in accordance with a resolution of the Board of Directors and after giving public notice, set up a record date, whereby the shareholders or pledgees who are registered at the record date shall have such rights. 3. In addition to the preceding Paragraphs and if necessity arises, the Company may, in accordance with a resolution of the Board of Directors and after giving public notice, suspend entry to the register of shareholders for a certain period not exceeding three (3) months. 3 48 Chapter 3 General Meeting of Shareholders Article 13 (Convocation) 1. An ordinary general meeting of shareholders shall be convened within three (3) months after the end of each business term, and an extraordinary general meeting of shareholders may be convened from time to time if necessity arises. 2. Meetings of Shareholders shall be convened by the Chairman or the Vice Chairman in accordance with resolutions of the Board of Directors. Article 14 (Place) Meetings of Shareholders shall be held in the area where the head office of the Company is located or at any other place if agreed in writing by all shareholders. Article 15 (Presiding Officer) The Director-Chairman shall be the presiding officer of a general meeting of shareholders. In the event that the Director-Chairman is unable to perform his or her duties, Director-Vice Chairman shall act in his or her place. Article 16 (Notice) 1. Notice calling a general meeting of shareholders shall be dispatched to each shareholder at least one month before the day set for such meeting. The notice shall contain date, time, place and agenda for the meeting. 2. The notice shall be prepared both in Japanese and English and shall be dispatched to the registered address of each 4 49 shareholder by registered mail. In case of shareholders not residing in Japan, the notice shall be dispatched by registered airmail. 3. The notice period provided for in Paragraph 1 may be shortened to the period provided in the Commercial Code, if all shareholders agree in writing. Article 17 (Quorum) The quorum of general meetings of shareholders shall be attendance of shareholders having in total two thirds or more of the total issued and outstanding common shares. Article 18 (Ordinary Resolutions) Except as otherwise provided in laws or in Article 19 of these Articles of Incorporation, resolutions at a general meeting of shareholders shall be adopted by a majority of the voting shares represented by the shareholders present. Article 19 (Special Resolutions) The following resolutions shall be made by the vote of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] the total issued and outstanding common shares. (1) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] (2) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 5 50 Article 20 (Proxy) An individual acting as a proxy for a shareholder shall, on a meeting-by-meeting basis, file a proxy with the Company. Chapter 4 Directors and Board of Directors Article 21 (Number of Directors) 1. The Company shall have [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] Directors. 2. In case of vacancy caused by resignation or otherwise, an extraordinary general meeting shall be promptly convened in accordance with Articles 13 and 16 of these Articles of Incorporation to fill the vacancy. Article 22 (Election) 1. The Directors shall be elected at a general meeting of shareholders under Article 19 of these Articles of Incorporation. 2. The Directors shall not be elected by a method of cumulative voting. Article 23 (Term of Office) 1. The term of office of a Director shall expire at the close of the ordinary general meeting of shareholders covering the last business term within one (1) year after his or her assumption of office. 6 51 2. The term of office of a Director elected to fill a vacancy shall be the remainder of the term of office of his or her predecessor; and provided further that the term of office of a newly added Director shall be the remainder of the term of office of the other Directors. Article 24 (Remuneration) Remuneration of the Directors shall be determined by a resolution of shareholders at a general meeting of shareholders. Article 25 (Representative Directors and Directors with Special Title) 1. The Company shall, by a resolution of the Board of Directors, elect one (1) Chairman and one (1) Vice Chairman from among the Directors. In case of necessity of business, the Company may have a President, Vice President(s), Executive Managing Director(s) or Managing Director(s). 2. The Chairman and Vice Chairman shall be Representative Directors. The Board of Directors may appoint one or more Representative Directors from among the Directors with special title provided for in the preceding Paragraph. 3. Representative Directors shall represent the Company and execute the Company's business in accordance with resolutions of the Board of Directors. Director-Chairman shall have the exclusive authority to operate day-to-day business, and may delegate such authority to a full-time standing (Jokin) Director provided for in the following Paragraph. 4. Except for Director-Chairman and Director-Vice Chairman, all Directors with special title are elected from among the full-time standing Directors. 7 52 Article 26 (Person to Convene) The Director-Chairman, Director-Vice Chairman or two (2) Directors may convene a meeting of the Board of Directors. Article 27 (Presiding Officer) The Director-Chairman shall be the presiding officer of a meeting of the Board of Directors. If the Director-Chairman is unable to perform his or her duties, Director-Vice Chairman shall act in his or her place. Article 28 (Notice) 1. Notice calling a meeting of the Board of Directors shall be dispatched to each Director at least two (2) weeks before the date set for such meeting. The notice shall contain date, time, place and agenda for the meeting. 2. The notice shall be prepared both in Japanese and English and shall be dispatched by registered mail. In case of Directors not residing in Japan, the notice shall be dispatched by registered airmail. 3. The notice period provided for in Paragraph 1 may be shortened or dispensed with, if all Directors agree in writing. Article 29 (Place) Meetings of the Board of Directors shall be held in the area where the head office of the Company is located or at any other place if agreed in writing by all Directors. 8 53 Article 30 (Resolutions) 1. Except as provided for by law or by the Articles of Incorporation, the matters relating to the Board of Directors shall be governed by the Regulations of the Board of Directors. 2. Resolutions of the Board shall be adopted by a majority vote of the Directors present at a meeting at which two-thirds or more of all Directors are present. Chapter 5 Statutory Auditors Article 31 (Number of Statutory Auditors) The Company shall have two (2) Statutory Auditors. Article 32 (Election) The Statutory Auditors shall be elected by a resolution of shareholders at a general meeting of shareholders in accordance with Article 19 of these Articles of Incorporation. Article 33 (Term of Office) 1. The term of office of a Statutory Auditor shall expire at the close of the ordinary general meeting of shareholders covering the last business term within two (2) years after his or her assumption of office. 2. The term of office of a Statutory Auditor elected to fill a vacancy shall be the remainder of the term of office of his or her predecessor. 9 54 Article 34 (Full-time Standing Statutory Auditor) The Statutory Auditors shall elect from among themselves a full-time standing (Jokin) Statutory Auditor. Article 35 (Remuneration) Remuneration of the Statutory Auditors shall be determined by a resolution of shareholders at a general meeting of shareholders. Chapter 6 Accounting Article 36 (Business Term) The business term of the Company shall commence on April 1 of each year and shall end on March 31 of the following year. Article 37 (Dividends) Dividends shall be paid to the shareholders and registered pledgees entered in the register of shareholders as of the closing date of each business term of the Company. Chapter 7 Supplementary Provisions Article 38 (The total number of Shares to be Issued at Time of Incorporation) The total number of shares which the Company shall issue at the time of the incorporation shall be two thousand (2,000), and all such shares shall be common shares with par value. The issue price per share of the above-mentioned shares shall be fifty thousand yen ($50,000 Yen). 10 55 Article 39 (First Business Term) The first business term of the Company shall, notwithstanding Article 36 of these Articles of Incorporation, commence on the date of incorporation of the Company and shall end on March 31, 1994. Article 40 (Initial Term of Office of Directors and Statutory Auditors) The term of office of the initial Directors and Statutory Auditors shall, notwithstanding Articles 23 and 33 of these Articles of Incorporation, expire at the close of the ordinary general meeting of shareholders covering the last business term within one (1) year after their assumption of office. Article 41 (Name and Address of Promoter) The name and address of the promoter and the number of shares subscribed for by the promoter are as follows:
Name and Address of Promoter Number of Share - - ---------------------------- --------------- Hirohiko Kondo 1 2-16-1 Tamanawa, Kamakura-shi Kanagawa, Japan
In order to certify the incorporation of Fujitsu AMD Semiconductor K.K., these Articles of Incorporation have been prepared and the promoter has affixed his seal hereto. , 1993 ---------------------- Promoter: Hirohiko Kondo 11 56 10-K Exhibit 10.27(a) SUBSTITUTE EXHIBIT B-1 Exhibit B-1 to the Joint Venture Agreement is a Japanese language document. The registrant represents that Exhibit B-2 to the Joint Venture Agreement constitutes a fair and accurate English translation of Exhibit B-1. ADVANCED MICRO DEVICES, INC. By: /s/ MARVIN D. BURKETT ________________________________________ Marvin D. Burkett Its: Senior Vice President, Chief Administrative Officer and Secretary, Chief Financial Officer and Treasurer 57 EXHIBIT B-2 10-K Exhibit 10.27(a) (TRANSLATION) FUJITSU AMD SEMICONDUCTOR LIMITED REGULATIONS OF THE BOARD OF DIRECTORS As effective on ,1993 (Purpose) Article 1. Except as provided for by laws and ordinances or the Articles of Incorporation, the matters relating to the Board of Directors shall be governed by these Regulations. (Composition) Article 2. The Board of Directors shall consist of all the Directors. (Representative Directors and Directors with Titles) Article 3. 1. A Chairman and a Vice Chairman, each of whom shall be a Representative Director, shall be elected from among the Directors. 2. Two Full-time Standing Directors (Jookin Torishimariyaku) shall be elected from among the Directors. 3. One or more additional Representative Directors may be elected from among the Full-time Standing Directors. 58 (Person to Convene) Article 4. A meeting of the Board of Directors may be convened by the Chairman, the Vice-Chairman, or any two Directors acting together. (Presiding Officer) Article 5. 1. The Chairman will act as the presiding officer (Gicho) of all meetings of the Board of Directors; provided that, if the office of the Chairman is vacant or the Chairman is unable to attend the meeting, the Vice Chairman will act as the presiding officer. 2. A meeting of the Board of Directors shall be presided over by the presiding officer. 3. In case the presiding officer mentioned in the foregoing Paragraph is unable to act, one of the other Directors will act in his place in accordance with the order previously fixed by a resolution of the Board of Directors. (Kind of Meetings) Article 6. Meetings of the Board of Directors shall be ordinary meetings and extraordinary meetings. (Ordinary Meetings) Article 7. An ordinary meeting of the Board of Directors shall be held once each quarter. 2 59 (Extraordinary Meetings) Article 8. 1. Extraordinary meetings of the Board of Directors shall be convened whenever necessary. 2. Any Director may ask the Chairman or the Vice Chairman to convene an extraordinary meeting showing the agenda and reason to convene a meeting. (Notices of Convocation of Meetings) Article 9. Notices of convocation of meetings of the Board of Directors shall be sent in the manner provided for in the Articles of Incorporation. (Method of Resolutions) Article 10. Resolutions of the Board of Directors shall be adopted by the affirmative vote of a majority of the members of the Board of Directors present at a meeting where not less than two-thirds (2/3) of all Directors are present. (Interpreters) Article 11. Interpreters may attend meetings of the Board of Directors upon the request of one of the Directors. 3 60 (Postponement of Meetings of Board of Directors) Article 12. 1. If the number in attendance at a meeting of the Board of Directors properly convened is less than the number required for voting as specified in Articles 10, the presiding officer of the meeting of the Board of Directors can postpone the meeting of the Board of Directors, specifying a date at least fourteen (14) days after the date of issuance of the postponement notices specified in Paragraph 2 of this Article. 2. In the case of postponement specified in the preceding Paragraph, the presiding officer shall, within two (2) business days after the date when it was decided to postpone the meeting, issue a written notice to each Director, stating the date, time and place of reconvocation of the postponed meeting of the Board of Directors. The provisions of Article 9 shall be applicable with the necessary modifications to the notices in question. However, it shall be required that the entire text of the notices in question must be transmitted by telegram simultaneously to each Director. (Minutes of Meetings) Article 13. Outlines of the deliberations of meetings of the Board of Directors as well as their results shall be recorded in minutes of meetings in both Japanese and English. The presiding officer and all the Directors who attended each meeting shall affix their signatures or their names and seals to them, and they shall be retained by the Company. 4 EX-10 3 TECHNOLOGY AGREEMENT 1 EXHIBIT 10.27(b) TECHNOLOGY CROSS-LICENSE AGREEMENT Confidential portions of this document have been deleted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 2 TECHNOLOGY CROSS-LICENSE AGREEMENT Table of Contents INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . 1 2. MUTUAL RELEASE . . . . . . . . . . . . . . . . . . . . . 6 3. GRANTS OF LICENSE. . . . . . . . . . . . . . . . . . . . 6 4. IMMUNITY FOR CUSTOMERS AND USERS . . . . . . . . . . . . 9 5. SUBLICENSE . . . . . . . . . . . . . . . . . . . . . . . 10 6. CONFIDENTIALITY. . . . . . . . . . . . . . . . . . . . . 11 7. USE OF PROPRIETARY INFORMATION AND COMMINGLED TECHNOLOGY 12 8. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS . . . 12 9. TERM AND TERMINATION . . . . . . . . . . . . . . . . . . 13 10. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . 16 ATTACHMENT A. . . . . . . . . . . . . . . . . . . . . . . . . 22 ATTACHMENT B. . . . . . . . . . . . . . . . . . . . . . . . . 25
i 3 TECHNOLOGY CROSS-LICENSE AGREEMENT This Technology Cross-License Agreement (this "Agreement"), dated as of March 26, 1993, is between ADVANCED MICRO DEVICES, INC. ("AMD"), a Delaware corporation having its principal officeat 901 Thompson Place, Sunnyvale, California, 94088-3453, U.S.A., and FUJITSU LIMITED ("Fujitsu"), a Japanese corporation having its registered office at 1015 Kamikodanaka, Nakahara-ku, Kawasaki 211, Japan. INTRODUCTION A. Fujitsu and AMD each own or control various patent and other intellectual property rights to which the other party wishes to acquire a license. B. Fujitsu and AMD are engaged in continuing research, development and engineering with regard to Licensed Products (as defined below). C. Fujitsu and AMD desire to establish an amicable and mutually beneficial relationship and, more specifically, desire to grant licenses and exchange semiconductor technology in accordance with the following terms and conditions. ACCORDINGLY, in consideration of the mutual covenants and promises contained herein, the parties hereto agree as follows: Article 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings: Section 1.1. "Affiliate", with respect to a party, shall mean the companies affiliated with such party as specified in Attachment A hereto, which may be amended from time to time upon the agreement of the parties. Section 1.2. "Applicable Law" shall mean, with respect to a party, any statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any Governmental Authority applicable to such party or its properties, business or assets. Section 1.3. "Auxiliary Part" shall mean input/output means, supporting means, terminal members, conductors or equivalent interconnecting members, housing means, any environmental controlling means included within such housing means or unitary with such housing means, and active and/or 1 4 passive elements unitarily or separately combined with a Semiconductor Product and any other parts, primarily usable in or for manufacturing Semiconductor Products. Section 1.4. "Confidential Information" shall mean information or materials disclosed to a party by the other party that are identified as, or provided under circumstances indicating the information or materials are, confidential or proprietary. Section 1.5. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 1.6. "Effective Date" shall mean the later to occur of (a) the date of this Agreement or (b) the date which all required Governmental Approvals have been obtained. Section 1.7. "EPROM" or "Electrically Programmable Read Only Memory" shall mean a non-volatile semiconductor memory device incorporating floating gate structure cells, which device is electrically programmable and erasable by using ultraviolet light. The device mainly consists of such floating gate structure cells, with auxiliary logic circuits, if any, where such logic circuits are used solely for memory operation or interface to other products. OTPROM or One Time PROM, which is a certain non-volatile semiconductor device incorporating the same chip as EPROM and packaged without transparent windows for ultraviolet light, shall be included in the definition of EPROM. Section 1.8. "Flash Memory" shall mean a non- volatile semiconductor memory device incorporating floating gate structure cells, which device is programmable and erasable by electrically injecting and electrically discharging electric charges into and from floating gates. The device mainly consists of such floating gate structure cells, with auxiliary logic circuits, if any, where such logic circuits are used solely for memory operation or interface to other products. Section 1.9. "Governmental Approvals" shall mean all approvals, consents, authorizations and similar actions from all Governmental Authorities that the parties agree are desirable in order to consummate the transactions hereunder. Section 1.10. "Governmental Authority" shall mean any foreign, domestic, national, federal, territorial, prefectural, state or local governmental authority, quasi- governmental authority, court, government or self-regulatory, administrative or other agency, or any political or other subdivision, department, or branch of any of the foregoing. Section 1.11. "Incorporated Product", with respect to a party, shall mean a product, other than an NVM or a Memory Card, into which such party has incorporated NVM(s) made by or for such party or JV, or portions of such NVM(s). Without limitation, Incorporated Product shall include both (a) an 2 5 information handling system, circuit board or multichip module that incorporates such NVM(s) or (b) a Semiconductor Product that incorporates circuits of such NVM(s) with other circuits. Section 1.12. "IPR" or "Intellectual Property Rights", (a) with respect to a party, shall mean such party's Patents, Proprietary Information and Other IPR, and (b) with respect to a third party, shall mean the equivalents of the foregoing, except that, in any case, IPR shall exclude trademarks, service marks, trade names and their equivalents, and any contraction, abbreviation, or simulation thereof. Section 1.13. "Joint Development Agreement" shall mean the Joint Development Agreement as defined in the Joint Venture Agreement, and any amendments or modifications thereto. Section 1.14. "Joint Venture Agreement" shall mean that certain joint venture agreement to be entered into by the parties concurrently with this Agreement, and any amendments or modifications thereto. Section 1.15. "Joint Venture License Agreement" shall mean the Joint Venture License Agreement as defined in the Joint Venture Agreement, and any amendments or modifications thereto. Section 1.16. "JV" shall mean Fujitsu AMD Semiconductor Limited, a Japanese corporation being formed by AMD and Fujitsu pursuant to the Joint Venture Agreement. Section 1.17. [Intentionally omitted] Section 1.18. "Licensed Product" shall mean any of the items described in the following clauses (a) through (c) and/or parts thereof: (a) Semiconductive Material; (b) Auxiliary Part; or (c) Semiconductor Product. Licensed Products shall include NVMs and Memory Cards, unless otherwise expressly provided herein. Section 1.19. "Manufacturing Apparatus" shall mean any instrumentality or aggregate of instrumentalities primarily designated for use in the fabrication of Licensed Products. Section 1.20. "Memory Card" shall mean an EPROM or Flash Memory card, module or board which consists mainly of NVM(s) and auxiliary semiconductor logic, if any, where such auxiliary semiconductor logic is used solely for memory operation or interface to other products. 3 6 Section 1.21. "Nondisclosure Agreements" shall mean the Nondisclosure Agreements between Fujitsu and AMD dated March 12, 1992 and July 20, 1992 and the Confidentiality Agreement between Fujitsu and AMD dated October 16, 1992. Section 1.22. "Non-Semiconductor Group", with respect to a party, shall mean the party's internal group or other organization that is not the Semiconductor Group of such party. It is understood that AMD currently does not have such a Non-Semiconductor Group. Should AMD elect to form a Non- Semiconductor Group in the future, such Group shall at that time have all of the rights and privileges, subject to the obligations, of a Non-Semiconductor Group hereunder. Section 1.23. "NVM" or "Non-Volatile Memory", with respect to a party, shall mean any EPROM or Flash Memory in wafer, die or packaged device form manufactured using wafer processes with geometries of 0.5 micron or less that embodies, incorporates or is subject to (or is manufactured through processes or methods that embody, incorporate or are subject to) IPR of the other party. Section 1.24. "Other IPR", with respect to a party, shall mean all mask work rights and copyrights relating to software or microcode, and the equivalents of the foregoing (under the laws of any jurisdiction, including without limitation, all applications and registrations with respect thereto) that both (a) are covered, embodied, or incorporated in the materials or information deliberately provided by such party to the other party in accordance with the Joint Development Agreement or the Nondisclosure Agreements, or deliberately provided by such party to JV or by JV to such party in accordance with the Joint Venture License Agreement and (b) are wholly owned by such party or as to which, and only to the extent and subject to the conditions under which, such party has the right, as of the Effective Date or thereafter during the term of this Agreement, to grant licenses or sublicenses of the scope granted herein, without such grant resulting in the payment of royalties or other consideration to third parties (unless and until the other party undertakes to reimburse such party for any payments so made, in which case such mask work rights and copyrights and equivalents shall be included within such party's Other IPR), except for payments to a Subsidiary of such party sublicensed hereunder or payments to third parties for Other IPR developed or created by such third parties while employed by such party or any Subsidiary of such party sublicensed hereunder. Section 1.25. "Patents", with respect to a party, shall mean all classes or types of patents, utility models, design patents and reissues, importations and confirmations thereof, and other indicia of ownership, and respective applications therefor of all countries of the world, provided such indicia of ownership or applications therefor meet both the following conditions: (a) have a filing date, or claim the benefit of a filing date, prior to the expiration or termination of this Agreement, and (b) are wholly owned by such party prior to the expiration or termination of this Agreement, or as to 4 7 which, and only to the extent and subject to the conditions under which, such party has the right, as of the Effective Date or thereafter during the term of this Agreement, to grant licenses or sublicenses of the scope granted herein, without such grant resulting in the payment of royalties or other consideration to third parties (unless and until the other party undertakes to reimburse such party for any payments so made, in which case such patents shall be included within such party's Patents), except for payments to a Subsidiary of such party sublicensed hereunder or payments to third parties for inventions made by such third parties while employed by such party or any Subsidiary of such party sublicensed hereunder. Section 1.26. "Pilot Product", with respect to a party, shall mean (i) an NVM wafer manufactured by or for (except by the JV) such party or (ii) an NVM die or packaged device made by or for (except by the JV) such party from such NVM wafer. Section 1.27. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 1.28. "Proprietary Information", with respect to a party, shall mean any trade secrets, copyrighted material (except as is otherwise provided in this Section 1.28), know-how, data, formula, processes, confidential information, or other information, tangible or otherwise, of such party that both (a) comes to the knowledge of the other party (whether or not deliberately provided by such party) in the course of performing the Joint Development Agreement or the Joint Venture License Agreement or pursuant to the Nondisclosure Agreements, and (b) is wholly owned by such party or as to which, and only to the extent and subject to the conditions under which, such party has the right, as of the Effective Date or thereafter during the term of this Agreement, to grant licenses or sublicenses of the scope granted herein, without such grant resulting in the payment of royalties or other consideration to third parties (unless and until the other party undertakes to reimburse such party for any payments so made, in which case such information shall be included within such party's Proprietary Information), except for payments to a Subsidiary of such party sublicensed hereunder or payments to third parties for Proprietary Information developed or created by such third parties while employed by such party or any Subsidiary of such party sublicensed hereunder. Proprietary Information does not include mask work rights or copyrights relating to software or microcode or the equivalents of such rights. Section 1.29. "Semiconductor Group", with respect to a party, shall mean the internal group or other organization of such party currently having as its primary activities the research and development, making and selling of Semiconductor Products to the semiconductor merchant market, and controlling semiconductor-related IPR arising by virtue of such activities. Section 1.29.1. The Fujitsu Semiconductor Group currently consists of (and is limited to) the Electronic Devices 5 8 Group of Fujitsu, and will consist in the future of any successor organization(s) which succeeds to the semiconductor-related research and development, making, selling and/or IPR of the Electronic Devices Group. Section 1.29.2. The AMD Semiconductor Group currently consists of AMD in its entirety, and will consist in the future of any successor organization(s) which succeeds to the semiconductor-related research and development, making, selling and/or IPR of any current AMD operations. Section 1.30. "Semiconductor Product" shall mean: (a) a Semiconductive Element; or (b) a Semiconductive Element and one or more films of conductive, semiconductive or insulating materials formed on a surface or surfaces of such Semiconductive Element, said film or films comprising one or more conductors, active or passive electrical circuit elements, or any combination thereof; or (c) a unitary assembly consisting of one or more of the elements described in clauses (a) and/or (b) of this Section 1.30 having a fixed permanent physical relationship established therebetween; or (d) a unitary assembly consisting primarily of (i) one or more of the elements described in clauses (a), (b) and/or (c) of this Section , and (ii) one or more film devices having a fixed permanent physical relationship established therebetween. Semiconductor Product includes, if provided therewith as a part thereof, (i) Auxiliary Parts and (ii) additional electrical circuits constituted thereby and integrally included therein, provided that such Auxiliary Parts and additional electrical circuits are incidental to the functionality of such Semiconductor Products. Section 1.31. "Semiconductive Element" shall mean an element consisting primarily of a body of Semiconductive Material having a plurality of electrodes associated therewith, whether or not said body consists of a single Semiconductive Material or of a multiplicity of such materials, whether or not said body has, therein and/or thereon, one or more junctions and whether or not said body includes one or more layers or other regions (constituting substantially less than the whole of said body) of a material or materials which are of a type other than Semiconductive Material, and if provided as a part thereof, said element includes passivating means thereof. Section 1.32. "Semiconductive Material" shall mean any material whose conductivity is intermediate to that of metals and insulators at room temperature and whose conductivity increases with increasing temperature over some temperature range. 6 9 Section 1.33. "Subsidiary", with respect to a party, shall mean any corporation, partnership or other entity, more than fifty percent (50%) of whose shares or ownership interests entitled to vote for the election of directors (other than any shares whose voting rights are subject to restriction) or, in the case of a noncorporate entity, the equivalent interests, are owned or controlled by such party, directly or indirectly, now or hereafter, but such corporation, partnership or other entity shall be deemed to be a Subsidiary only for so long as such ownership or control exists. Section 1.34. "Transitional Event" shall mean the earlier to occur of (i) termination or expiration of the Joint Venture Agreement, (ii) dissolution of the JV, or (iii) Fujitsu or AMD ceasing to be a shareholder of the JV. Article 2. MUTUAL RELEASE. Section 2.1. Fujitsu hereby releases, acquits and forever discharges AMD hereunder from any and all claims or liability for infringement or alleged infringement of any Fujitsu IPR by performance of acts prior to the Effective Date which, if performed on or after the Effective Date, would be acts licensed, sublicensed or immunized hereunder. Section 2.2. AMD hereby releases, acquits and forever discharges Fujitsu hereunder from any and all claims or liability for infringement or alleged infringement of any AMD IPR by performance of acts prior to the Effective Date which, if performed on or after the Effective Date, would be acts licensed, sublicensed or immunized hereunder. Article 3. GRANTS OF LICENSE. Section 3.1. Fujitsu hereby grants to AMD a non- exclusive and non-transferable license under Fujitsu IPR: (a) to make, have made (it being understood that for purposes of this Agreement the terms "make" and "have made" shall include the acts of assembling, packaging, and/or testing), use, sell, lease, or otherwise dispose of Licensed Products and Incorporated Products anywhere in the world, but excluding [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], NVMs and Memory Cards, except as otherwise specified in Attachment B; and (b) to make, have made and use Manufacturing Apparatuses anywhere in the world, and to sell, lease, or otherwise dispose of such Manufacturing Apparatuses anywhere in the world, provided that such sale, lease or other disposition is incidental to a technology license to make Licensed Products to which such Manufacturing Apparatuses relate. 7 10 Section 3.2. AMD hereby grants to Fujitsu a non- exclusive and non-transferable license under AMD IPR: (a) to make, have made, use, sell, lease, or otherwise dispose of Licensed Products and Incorporated Products anywhere in the world, but excluding [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], NVMs and Memory Cards, except as otherwise specified in Attachment B; and (b) to make, have made and use Manufacturing Apparatuses anywhere in the world, and to sell, lease, or otherwise dispose of such Manufacturing Apparatuses anywhere in the world, provided that such sale, lease or other disposition is incidental to a technology license to make Licensed Products to which such Manufacturing Apparatuses relate. Section 3.3. Fujitsu and AMD agree that upon the occurrence of a Transitional Event, whether or not it results in termination under Article 9, or upon the assumption by or on behalf of a party (including a bankruptcy trustee or representative or debtor in possession) of the rights and obligations of this Agreement in a bankruptcy or insolvency proceeding involving such party, the licenses under Sections 3.1 and 3.2, respectively, shall automatically, without further action by either party, be changed so that the licenses become licenses to make, have made, use, sell, lease or otherwise dispose of any volume of Licensed Products, including NVMs and Memory Cards, anywhere in the world not subject to the conditions of Attachment B, but excluding, in the case of Section 3.1, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], and, in the case of Section 3.2, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 3.4. Section 3.4.1. Notwithstanding anything to the contrary in Sections 1.12 and 3.1, Articles 4 and 5, or any other provision of this Agreement: (a) The rights, licenses and immunities granted by Fujitsu hereunder to AMD (and the definition of "IPR" included in such grant) shall exclude IPR of any Fujitsu Non-Semiconductor Group except that: (i) Such Fujitsu Non-Semiconductor Group, at its option, may grant to the AMD Semiconductor Group a license of such Fujitsu Non-Semiconductor Group's Patents that relate to (A) processes for manufacturing Licensed Products, (B) the device structure (but not circuits) of Licensed Products, or (C) the materials comprising Licensed Products (collectively, "Semiconductor-Related"). Unless such Fujitsu Non-Semiconductor Group grants such a license to the AMD Semiconductor Group and such license is otherwise of a scope that is equivalent to that of Section 3.1, such Fujitsu Non-Semiconductor Group may not exercise the rights, licenses and immunities granted hereunder to 8 11 Fujitsu with respect to Licensed Products, except Licensed Products that are made by or for Fujitsu Semiconductor Group, a Subsidiary sublicensed hereunder, the JV or another Non- Semiconductor Group that has acquired the right (pursuant to this Section 3.4.1(a)(i)) to exercise such rights, licenses and immunities granted hereunder to Fujitsu. (ii) If the Fujitsu Semiconductor Group provides or makes available to AMD information, material or technology in connection with activities related to the Joint Development Agreement or the Joint Venture License Agreement, and such information, material or technology embodies, incorporates or is subject to any Semiconductor-Related IPR of a Fujitsu Non- Semiconductor Group that is used by the Fujitsu Semiconductor Group, the Fujitsu Semiconductor Group shall (unless such Fujitsu Non-Semiconductor Group has granted a license of such IPR pursuant to clause (i)) arrange for a license or immunity from suit under such IPR to the AMD Semiconductor Group, provided that AMD shall pay any related reasonable license fees or royalties. Such license or immunity shall otherwise be of a scope equivalent to that of Section 3.1, but shall be no broader than the rights of the Fujitsu Semiconductor Group to such IPR. (b) An AMD Non-Semiconductor Group may, at its option, obtain a license hereunder of the circuit Patents of the Fujitsu Semiconductor Group. Such license shall be of a scope equivalent to that of Section 3.1. If such AMD Non- Semiconductor Group obtains such a license, it shall grant back to the Fujitsu Semiconductor Group a license hereunder of such AMD Non-Semiconductor Group's circuit Patents. Such license shall otherwise be of a scope equivalent to that of Section 3.2. Section 3.4.2. Notwithstanding anything to the contrary in Sections 1.12 and 3.2, Articles 4 and 5, or any other provision of this Agreement: (a) The rights, licenses and immunities granted by AMD hereunder to Fujitsu (and the definition of "IPR" included in such grant) shall exclude IPR of any AMD Non-Semiconductor Group except that: (i) Such AMD Non-Semiconductor Group, at its option, may grant to the Fujitsu Semiconductor Group a license of such AMD Non-Semiconductor Group's Semiconductor-Related Patents. Unless such AMD Non-Semiconductor Group grants such a license to the Fujitsu Semiconductor Group and such license is otherwise of a scope that is equivalent to that of Section 3.2, such AMD Non- Semiconductor Group may not exercise the rights, licenses and immunities granted hereunder to AMD with respect to Licensed Products, except Licensed Products that are made by or for AMD Semiconductor Group, a Subsidiary sublicensed hereunder, the JV or another Non-Semiconductor Group that has acquired the right (pursuant to this Section 3.4.2(a)(i)) to exercise such rights, licenses and immunities granted hereunder to AMD. 9 12 (ii) If the AMD Semiconductor Group provides or makes available to Fujitsu information, material or technology in connection with activities related to the Joint Development Agreement or the Joint Venture License Agreement, and such information, material or technology embodies, incorporates or is subject to any Semiconductor-Related IPR of an AMD Non- Semiconductor Group that is used by the AMD Semiconductor Group, the AMD Semiconductor Group shall (unless such AMD Non- Semiconductor Group has granted a license of such IPR pursuant to clause (i)) arrange for a license or immunity from suit under such IPR to the Fujitsu Semiconductor Group, provided that Fujitsu shall pay any related reasonable license fees or royalties. Such license or immunity shall otherwise be of a scope equivalent to that of Section 3.2, but shall be no broader than the rights of the AMD Semiconductor Group to such IPR. (b) A Fujitsu Non-Semiconductor Group may, at its option, obtain a license hereunder of the circuit Patents of the AMD Semiconductor Group. Such license shall be of a scope equivalent to that of Section 3.2. If such Fujitsu Non- Semiconductor Group obtains such a license, it shall grant back to the AMD Semiconductor Group a license hereunder of such Fujitsu Non-Semiconductor Group's circuit Patents. Such license shall otherwise be of a scope equivalent to that of Section 3.1. Section 3.5. Fujitsu and AMD agree that they have given full consideration to the value of the IPR of the other party and to the costs, benefits, burdens and uncertainties of assessing such value. Fujitsu and AMD further agree that they have given full consideration to the possibility that one or more patents of the other party may be invalid or unenforceable, and the Other IPR and Proprietary Information of the other party may decline or increase in value after the Effective Date. Based on the foregoing, Fujitsu and AMD have determined that the rights granted hereunder are [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] contained in this Agreement and that any change in the circumstances under which this Agreement is entered into (including a final determination as to the invalidity or unenforceability of a patent) shall not effect such determination. Section 3.6. Notwithstanding anything else contained herein, AMD acknowledges that the licenses granted in Section 3.1 do not include any rights with respect to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and Fujitsu acknowledges that the licenses granted in Section 3.2 do not include any rights with respect to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The Parties acknowledge that the exclusion of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] from the licenses granted to AMD in Section 3.1(a) is based on current conditions with respect to the role of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] in the business and operations of AMD. Each party agrees to negotiate in good faith if, based on a change in such business and operations, the other party wishes to omit such exclusion. Article 4. IMMUNITY FOR CUSTOMERS AND USERS. Section 4.1. Fujitsu hereby forever grants to the customers and users of Licensed Products or Incorporated Products that are sold, leased or otherwise disposed of by AMD pursuant to, and subject to the conditions of, this Agreement a worldwide, royalty-free and non-exclusive immunity from suit, damages and claims by Fujitsu under Fujitsu IPR to use, sell, lease or otherwise dispose of such Licensed Products or Incorporated Products, provided that such royalty-free immunity for such customers and users shall extend only to the use, sale, lease or other disposition of such particular Licensed Products or Incorporated Products that such customers and users obtained directly or indirectly from AMD. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The sale, lease, or other disposition to customers and users of Licensed Products or Incorporated Products by AMD does not convey any license, by implication, estoppel, or otherwise, to such customers and users under Patent claims covering combinations of such Products with other devices or elements. Section 4.2. AMD hereby forever grants to the customers and users of Licensed Products or Incorporated Products 10 13 that are sold, leased or otherwise disposed of by Fujitsu pursuant to, and subject to the conditions of, this Agreement a worldwide, royalty-free and non-exclusive immunity from suit, damages and claims by AMD under AMD IPR to use, sell, lease or otherwise dispose of such Licensed Products or Incorporated Product, provided that such royalty-free immunity for such customers and users shall extend only to the use, sale, lease or other disposition of such particular Licensed Products or Incorporated Products that such customers and users obtained directly or indirectly from Fujitsu. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The sale, lease, or other disposition to customers and users of Licensed Products or Incorporated Products by Fujitsu does not convey any license, by implication, estoppel, or otherwise, to such customers and users under Patent claims covering combinations of such Products with other devices or elements. Article 5. SUBLICENSE. Section 5.1. Each party shall have the right to grant sublicenses of the rights, licenses and immunities granted to such party under Section 3.1 or 3.2, as well as Articles 2 and 4 and this Article 5, to a Subsidiary of such party but subject to the condition that such Subsidiary grants a license to the other party hereunder of the Patents, if any, of such Subsidiary, as follows: If such Subsidiary is subject to control by a Non- Semiconductor Group, such grant-back license (a) shall be to the Semiconductor Group of the other party and (b) shall be of Semiconductor-Related (as defined in Section 3.4.1(a)(i)) Patents. If such Subsidiary is subject to control by the Semiconductor Group, such license (a) shall be to the other party as a whole and (b) shall be of all Patents of such Subsidiary. Any such license shall otherwise be of a scope equivalent to that of Section 3.1 or 3.2 (as applicable). It is hereby stated, for confirmation purposes, that (i) it is an option, and not an obligation, for a Subsidiary to grant such a license, unless and until such Subsidiary elects to be granted a sublicense of such rights, licenses and immunities, and (ii) even without obtaining such a sublicense, a Subsidiary of a party may exercise the rights, licenses and immunities granted hereunder to the same extent as a Non-Semiconductor Group of such party that has not granted a license to the other party's Semiconductor Group under Section 3.4.1(a)(i) or 3.4.2(a)(i). Section 5.2. If requested by a party, the other party shall cause a Subsidiary actually controlled by the Semiconductor Group of such other party to grant a license to such party under Section 5.1. Section 5.3. If the Semiconductor Group of a party provides or makes available to the other party information, material or technology in connection with activities related to the Joint Development Agreement or the Joint Venture License Agreement, and such information, material or technology embodies, incorporates or is subject to any Semiconductor-Related (as 11 14 defined in Section 3.4.1(a)(i)) IPR of a Subsidiary of such party that is used by such Semiconductor Group, such Semiconductor Group shall (unless such Subsidiary has granted a license to such other party pursuant to Section 5.1) arrange for a license or immunity from suit under such IPR to the Semiconductor Group of such other party, provided that such other party shall pay any related reasonable license fees or royalties. Such license or immunity shall otherwise be of a scope equivalent to that of Section 3.1 or 3.2. Section 5.4. A party shall not have the right to grant sublicenses hereunder except as provided herein. Article 6. CONFIDENTIALITY. Section 6.1. Except as expressly authorized by the other party (including without limitation the exercise of the rights granted to a party under this Agreement, the Joint Development Agreement and the Joint Venture License Agreement) each party agrees not to disclose, use or permit the disclosure or use by others of any Confidential Information unless and to the extent such Confidential Information (i) is not marked or designated in writing as confidential and is provided for a purpose that reasonably contemplates disclosure to or use by others, (ii) becomes a matter of public knowledge through no action or inaction of the party receiving the Confidential Information, (iii) was in the receiving party's possession before receipt from the party providing such Confidential Information, (iv) is rightfully received by the receiving party from a third party without any duty of confidentiality, (v) is disclosed to a third party by the party providing the Confidential Information without a duty of confidentiality on the third party, (vi) is disclosed by the receiving party despite the exercise of the same degree of care used by the receiving party to safeguard its own similar Confidential Information, but the receiving party shall take all necessary steps to prevent any further disclosure, (vii) is disclosed with the prior written approval of the party providing such Confidential Information, or (viii) is independently developed by the receiving party without any use of the other party's Confidential Information. Confidential Information shall not be deemed to be available to the general public for the purpose of exclusion (ii) above with respect to each party (x) merely because it is embraced by more general information in the prior possession of the receiving party or others, or (y) merely because it is expressed in public literature in general terms not specifically in accordance with the Confidential Information. Section 6.2. In furtherance, and not in limitation of the foregoing Section 6.1, each party agrees to do the following with respect to any such Confidential Information: (i) exercise the same degree of care to safeguard the confidentiality of, and prevent the unauthorized use of, such information as that party exercises to safeguard the confidentiality of its own Confidential Information, (ii) restrict disclosure of such information to those of its 12 15 employees, agents and sublicensees who have a "need to know", and (iii) instruct and require such employees, agents and sublicensees to maintain the confidentiality of such information and not to use such information except as expressly permitted herein. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documentation or other materials. Section 6.3. The foregoing confidentiality obligations shall also apply to the contents of this Agreement. Section 6.4. The obligations under this Article 6 shall not prevent the parties from disclosing the Confidential Information or terms of this Agreement to any government agency or body as required by law (provided that the party required to make such disclosure in such circumstances has given the other party prompt notice prior to making such disclosure so that the other party may seek a protective order or other appropriate remedy prior to such disclosure and cooperates fully with such other party in seeking such order or remedy). Section 6.5. The obligations under this Article 6 shall apply with respect to any Confidential Information for a period of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] from the date of disclosure of such Confidential Information to the receiving party, unless with respect to any particular Confidential Information the providing party in good faith notifies the receiving party in writing that a longer period shall apply, in which case the obligations under this Article 6 with respect to such Confidential Information shall apply for such longer period. Article 7. USE OF PROPRIETARY INFORMATION AND COMMINGLED TECHNOLOGY. Section 7.1. The parties hereto agree that each party shall have the right to freely use for internal purposes, in accordance with the provisions of Article 6, the Proprietary Information or Other IPR received from the other party. Neither party will knowingly provide to a third party the distinct and independent Proprietary Information or Other IPR received from the other party, except as may be permitted under this Agreement, the Joint Development Agreement or the Joint Venture License Agreement. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Both parties shall treat Commingled Technology with the same degree of care with respect to its transfer to and use by third part(ies) (including the imposition of confidentiality obligations on any transferee) as they take with respect to their own Proprietary Information and Other IPR. Section 7.2. Nothwithstanding anything else contained herein, Fujitsu and AMD each hereby grants [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Article 8. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. Section 8.1. Each party hereto represents and warrants to the other party that it has the right, and will continue during the term of this Agreement to have the right, to grant to or for the benefit of the other party the rights and licenses granted hereunder in accordance with the terms of this Agreement and such grant of rights and licenses does not, and will not during the term of this Agreement, conflict with the rights and obligations of such party under any other license, agreement, contract or other undertaking. Each party shall 13 16 indemnify, hold harmless and defend the other party against a breach by such party of this Section 8.1. Section 8.2. Nothing contained in this Agreement shall be construed as: (a) a warranty or representation by any of the parties hereto or its Subsidiaries sublicensed hereunder as to the validity or scope of any Fujitsu IPR or AMD IPR, as the case may be; or (b) conferring upon any party hereto or its Subsidiaries sublicensed hereunder any license, right or privilege under any patents, utility models, design patents, copyrights, mask work rights or trade secrets except the licenses, rights and privileges expressly granted hereunder; or (c) a warranty or representation that any acts licensed or sublicensed hereunder will be free from infringement of patents, utility models, design patents, copyrights, mask work rights or trade secrets other than those under which licenses, rights and privileges have been expressly granted hereunder; or (d) an arrangement to bring or prosecute actions or suits against third parties for infringement or conferring any right to bring or prosecute actions or suits against third parties for infringement; or (e) conferring any right to use in advertising, publicly or otherwise, any trademark, service mark, trade name or their equivalent, or any contraction, abbreviation or simulation thereof, of either party hereto or their Subsidiaries sublicensed hereunder. Section 8.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY HERETO MAKES ANY WARRANTIES, WHETHER EXPRESS OR OTHERWISE, CONCERNING ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT. Article 9. TERM AND TERMINATION. Section 9.1. Term. This Agreement shall become effective on the Effective Date and shall, unless and until earlier terminated hereunder, remain in effect until the later to occur of (i) the tenth anniversary date of the Effective Date and 14 17 (ii) the date of a Transitional Event, at which time this Agreement shall terminate. At the request of either party, both parties shall negotiate in good faith to extend the term of this Agreement, with or without amendment to the provisions hereof. Section 9.2. Termination. Termination of this Agreement may result from the events listed below. Each party agrees to give prompt written notice to the other party of the happening of any such event. (a) If either party hereto defaults in the performance of any material obligation hereunder, the non- defaulting party may give written notice thereof and the parties shall discuss the problem arising from such default in good faith and seek to resolve such problem. If such default is not corrected or otherwise addressed by the defaulting party to the reasonable satisfaction of the non-defaulting party within ninety (90) days after the written notice of such default, then the non- defaulting party may, in addition to any other remedies it may have, terminate this Agreement by written notice. This Agreement shall terminate on the thirtieth (30th) day after such notice of termination. (b) Each party hereto may terminate this Agreement, by giving written notice of termination to the other party at any time, upon or after: (i) the filing by such other party of a petition in bankruptcy or insolvency; (ii) any adjudication that such other party is bankrupt or insolvent; (iii) the filing by such other party of any legal action or document seeking reorganization, readjustment or arrangement of such other party's business under any law relating to bankruptcy or insolvency; (iv) the appointment of a receiver or bankruptcy trustee for all or substantially all of the property of such other party; (v) the making by such other party of a general assignment for the benefit of creditors; or (vi) the institution of any proceedings for the liquidation or winding up of such other party's business or for the termination of its corporate charter, provided, in the event such proceedings are involuntary, the proceedings are not dismissed within ninety (90) days. (c) If at any time during the term of this Agreement, (i) a party incurs in one transaction or a series of related transactions a change in ownership of more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of its capital stock, (ii) a party consolidates with or merges with or into another 15 18 corporation, partnership or other entity, whether or not such party is the surviving entity of such transaction, unless immediately after such consolidation or merger shareholders of such party prior to the transaction continue to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the outstanding shares of stock entitled to vote for the election of directors of such new or surviving entity, or (iii) a party sells, assigns or otherwise transfers all or substantially all of the business or assets of such party relating to its semiconductor merchant market business to a third party, the other party may terminate this Agreement upon thirty (30) days' advance written notice to such party, provided, in each case, that the terminating party must exercise such right no later than one (1) year after receiving written notice from the other party of such transaction. Section 9.3. Effect of Termination. (a) Except as otherwise provided in this Section 9.3, all rights and obligations of the parties hereunder shall cease upon termination or expiration of this Agreement, with the exception of the rights and obligations of the parties under Articles 2, 4, 6, 7, 8, 9 and 10 and Sections 3.3 and 3.5, which shall survive termination or expiration of this Agreement. (b) In the event of termination of this Agreement pursuant to Section 9.1, the licenses granted by a party under Article 3 or any sublicenses granted by a party under Article 5, including the modification pursuant to Section 3.3, shall survive such termination of this Agreement with respect to any IPR licensed as of the date of such termination of this Agreement until expiration of such IPR. Should any of the events described in clauses (i) through (iii) of Section 9.2(c) ("Change of Control") occur with respect to a party during the period in which license rights are surviving pursuant to this Section 9.3(b), the other party shall have the right to exercise the rights of a Terminating Party as described in Sections 9.3(c) and (d), and the rights of the parties shall thereafter be as set forth in Sections 9.3(c) and (d) rather than this Section 9.3(b). (c) If a party (the "Terminating Party") terminates this Agreement pursuant to Section 9.2, the licenses granted by the Terminating Party to the other party (the "Terminated Party") under Article 3, or any sublicenses granted by the Terminated Party under Article 5, shall survive such termination with respect to IPR licensed as of the date of such termination of this Agreement until expiration of such IPR, except that with respect to Patents such post-termination licenses and sublicenses shall be limited solely to (i) Incorporated Products and Licensed Products being made or have made and sold by the Terminated Party and its Subsidiaries sublicensed hereunder at the time of such termination and modifications thereof that do not add functionality ("Existing Products") and (ii) process Patents licensed at the time of such termination ("Existing Process Patents"), whether such Existing Process Patents are used in the manufacture of Existing Products 16 19 or other Incorporated Products or Licensed Products, but subject in any event to the requirements of Section 9.3(d). (d) If a Change of Control occurs with respect to the Terminated Party, whether in connection with termination of this Agreement or thereafter: (i) beginning on the date of such Change of Control, the licenses granted by the Terminating Party to the Terminated Party under Article 3, or any sublicenses granted by the Terminated Party under Article 5, with respect to Patents shall be limited solely to manufacture and sale of Existing Products and (notwithstanding Section 9.3 (c)(ii)) use of Existing Process Patents to make or have made only Existing Products, in each case only in the operations of the Terminated Party as such operations existed at the time of such Change of Control, and (ii) such licenses or sublicenses shall terminate on the date of such Change of Control or five years after termination of this Agreement (whichever is later), unless (and only for so long as) the Terminating Party, its Subsidiaries sublicensed hereunder and their customers have a world-wide, royalty-free and non-exclusive immunity from suit, damages and claims under all patents and patent applications of the Terminated Party and the third party that, directly or indirectly, controls the Terminated Party relating to Licensed Products or Incorporated Products. (e) Upon termination of this Agreement by the Terminating Party pursuant to Section 9.2, the licenses granted by the Terminated Party to the Terminating Party under Article 3, or any sublicenses granted by the Terminating Party under Article 5, shall survive such termination of this Agreement with respect to any IPR licensed as of such termination until expiration of such IPR, as if such termination had occurred as described in Sections 9.1 and 9.3(b), except that with respect to Patents such post-termination licenses and sublicenses shall be subject to the requirements of Section 9.3(f). (f) If a Change of Control occurs with respect to the Terminating Party, whether in connection with termination of this Agreement or thereafter: (i) beginning on the date of such Change of Control, the licenses granted by the Terminated Party to the Terminating Party under Article 3, or any sublicenses granted by the Terminating Party under Article 5, with respect to Patents shall be limited solely to manufacture and sale of Existing Products and use of Existing Process Patents to make or have made only Existing Products, in each case only in the operations of the Terminating Party as such operations existed at the time of such Change of Control, and (ii) such licenses or sublicenses shall terminate on the date of such Change of Control or five years after termination of this Agreement (whichever is later), unless 17 20 (and only for so long as) the Terminated Party, its Subsidiaries sublicensed hereunder and their customers have a world-wide, royalty-free and non-exclusive immunity from suit, damages and claims under all patents and patent applications of the Terminating Party and the third party that, directly or indirectly, controls the Terminating Party relating to Licensed Products or Incorporated Products. Article 10. MISCELLANEOUS. Section 10.1. Force Majeure. Neither party shall be liable for failure to perform, in whole or in material part, its obligations under this Agreement if such failure is caused by any event or condition not existing as of the date of this Agreement and not reasonably within the control of the affected party, including, without limitation, by fire, flood, typhoon, earthquake, explosion, strikes, labor troubles or other industrial disturbances, unavoidable accidents, war (declared or undeclared), acts of terrorism, sabotage, embargoes, blockage, acts of Governmental Authorities, riots, insurrections, or any other cause beyond the control of the parties; provided, that the affected party promptly notifies the other party of the occurrence of the event of force majeure and takes all reasonable steps necessary to resume performance of its obligations so interfered with. Section 10.2. Assignment. Neither this Agreement nor any of the rights and obligations created hereunder may be assigned, transferred, pledged, or otherwise encumbered or disposed of, in whole or in part, whether voluntary or by operation of law, or otherwise, by either party without the prior written consent of the other party. This Agreement shall inure to the benefit of and be binding upon the parties' permitted successors and assigns. Section 10.3. Notices. All notices and communications required, permitted or made hereunder or in connection herewith shall be in writing and shall be mailed by first class, registered or certified air mail, postage prepaid, or otherwise delivered by hand or by messenger, or by recognized courier service (with written receipt confirming delivery), addressed: (a) If to FUJITSU, to: Mail or Hand Delivery: FUJITSU LIMITED 1015 Kamikodanaka, Nakahara-ku Kawasaki-shi 211, JAPAN Attn: Masaichi Shinoda General Manager Business Development Division Electronic Devices with a copy to: 18 21 Mail or Hand Delivery: FUJITSU LIMITED Marunouchi Center Bldg., 6-1 Marunouchi 1-chome Chiyoda-ku, Tokyo 100, JAPAN Attn: Gen Iseki General Manager, Legal Division (b) If to AMD, to: Mail: Mikio Ishimaru, Esq. Director of Technology Law Advanced Micro Devices, Inc., MS 68 P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Hand Delivery: 3625 Peterson Way Santa Clara, CA 95054 U.S.A. with a copy to: Mail: Senior Vice President, Operations Advanced Micro Devices, Inc. P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Attn: Gene Conner Hand Delivery: 915 DeGuigne Drive Sunnyvale, CA 94086 U.S.A. Each such notice or other communication shall for all purposes hereunder be treated as effective or as having been given as follows: (i) if delivered in person, when delivered; (ii) if sent by airmail, at the earlier of its receipt or at 5 pm, local time of the recipient, on the seventh day after deposit in a regularly maintained receptacle for the deposition of airmail; and (iii) if sent by recognized courier service, on the date shown in the written confirmation of delivery issued by such delivery service. Either party may change the address and/or addressee(s) to whom notice must be given by giving appropriate written notice at least seven (7) days prior to the date the change becomes effective. 19 22 Section 10.4 Export Control. Without in any way limiting the provisions of this Agreement, each of the parties hereto agrees that no products, items, commodities or technical data or information obtained from a party hereto nor any direct product of such technical data or information is intended to or shall be exported or reexported, directly or indirectly, to any destination restricted or prohibited by Applicable Law without necessary authorization by the Governmental Authorities, including (without limitation) the Japanese Ministry of International Trade and Industry, the United States Bureau of Export Administration (the "BEA") or other Governmental Authorities of the United States with jurisdiction with respect to export matters. Without limiting the generality of the foregoing, each party hereto agrees that it will not, without authorization from the Office of Export Licensing of the BEA, knowingly export or reexport to a destination outside of the United States General License GTDR technical data or information of United States origin subject to this Agreement, or the direct product thereof, or the product of a plant or major component of a plant that is the direct product thereof, without first providing any applicable export assurances to the exporting party. Section 10.5. Arbitration. (a) Any and all disputes arising under or affecting this Agreement shall be resolved exclusively by confidential arbitration pursuant to the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or such other location as may be agreed between the parties; provided, however, that the arbitrators shall be empowered to hold hearings at other locations within and without Japan. Each of the parties shall designate one arbitrator and the two arbitrators so designated shall select the third arbitrator. Arbitration proceedings shall be conducted in English with simultaneous translation into Japanese. The judgment upon award of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction in the United States or Japan, and each of the parties hereto unconditionally submits to the jurisdiction of such court for the purpose of any proceeding seeking such enforcement. Subject only to the provision of Applicable Law, the procedure described in this Section 10.5 shall be the exclusive means of resolving disputes arising under or affecting this Agreement. (b) All papers, documents, or evidence, whether written or oral, filed with or presented to the panel of arbitrators shall be deemed by the parties and by the arbitrators to be Confidential Information. No party or arbitrator shall disclose in whole or in part to any other person any Confidential Information submitted in connection with the arbitration proceedings, except to the extent reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute. Confidential Information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to outside experts requested by either party's counsel to furnish technical or 20 23 expert services or to give testimony at the arbitration proceedings, subject, in the case of such experts, to execution of a legally binding written statement that such expert is fully familiar with the terms of this section, agrees to comply with the confidentiality terms of this section, and will not use any Confidential Information disclosed to such expert for personal or business advantage. Section 10.6. Entire Agreement. This Agreement and the attachments hereto embody the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding all previous communications, agreements and understandings, whether written or oral. Neither party has relied upon any representation or warranty of the other party except as expressly set forth herein. Section 10.7. Modification. This Agreement may not be modified or amended, in whole or part, except by a writing executed by duly authorized representatives of both parties. Section 10.8. Announcement. The parties may announce the existence of the parties' relationship and this Agreement at a time and in a form to be mutually determined. Neither party shall unreasonably withhold its consent to a time proposed by the other party. Section 10.9. Severability. If any term or provision of this Agreement shall be determined to be invalid or unenforceable under Applicable Law, such provision shall be deemed severed from this Agreement, and a reasonable valid provision to be mutually agreed upon shall be substituted. In the event that no reasonable valid provision can be so substituted, the remaining provisions of this Agreement shall remain in full force and effect, and shall be construed and interpreted in a manner that corresponds as far as possible with the intentions of the parties as expressed in this Agreement. Section 10.10. No Waiver. Except to the extent that a party hereto may have otherwise agreed in writing, no waiver by that party of any condition of this Agreement or breach by the other party of any of its obligations or representations hereunder shall be deemed to be a waiver of any other condition or subsequent or prior breach of the same or any other obligation or representation by the other party, nor shall any forbearance by the first party to seek a remedy for any noncompliance or breach by the other party be deemed to be a waiver by the first party of its rights and remedies with respect to such noncompliance or breach. Section 10.11. Nature of Rights. Each party shall have the right to the other party's IPR licensed under this Agreement when created, developed or invented, regardless of whether physically delivered to such party. All rights and licenses granted under or pursuant to this Agreement by a party ("licensor party") to the other party ("licensee party") are, for purposes of Section 365(n) of the U.S. Bankruptcy Code (the "Bankruptcy Code"), licenses of "intellectual property" within 21 24 the scope of Section 101 of the Bankruptcy Code. The parties agree that the licensee party, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The parties further agree that, in the event of the commencement of a bankruptcy or insolvency proceeding by or against the licensor party, the licensee party shall be entitled to a complete duplicate of (and complete access to) any such intellectual property and all embodiments thereof. If not already in the licensee party's possession, the licensee party has the right to immediate delivery of such intellectual property and embodiments upon written request of the licensee party (i) upon any such commencement of bankruptcy proceedings, unless the licensor party or its representative or trustee elects to continue to perform all of its obligations under this Agreement, or (ii) if not delivered under clause (i) above, upon the rejection of this Agreement by or on behalf of the licensor party. Section 10.12. Tangible Property. The parties agree that the tangible portion of the property delivered and to be delivered by AMD to Fujitsu is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and by Fujitsu to AMD is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 10.13. Governing Law. The validity, construction, performance and enforceability of this Agreement shall be governed in all respects by the laws of the State of California, U.S.A. Section 10.14. Language. This Agreement and the attachments hereto are in the English language, which language shall be controlling in all respects. Section 10.15. No Agency or Partnership. This Agreement shall not constitute an appointment of either party as the legal representative or agent of the other party, nor shall either party have any right or authority to assume, create or incur in any manner any obligation or other liability of any kind, express or implied, against, in the name or on behalf of, the other party. Nothing herein or in the transactions contemplated by this Agreement shall be construed as, or deemed to be, the formation of a partnership, association, joint venture or similar entity by or among the parties hereto. Section 10.16. Headings. The section and other headings contained in this Agreement are for convenience of reference only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement. 22 25 Section 10.17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives on the date set forth above. ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED /s/ Gene Conner /s/ Hikotara Masunaga - - ----------------------------- ----------------------------- By: Gene Conner By: Hikotaro Masunaga Title: Senior Vice President, Title: Managing Director Operations 23 26 ATTACHMENT A TO TECHNOLOGY CROSS-LICENSE AGREEMENT FUJITSU AFFILIATES 1. Amdahl Corporation 2. HaL Computer Corporation 3. Such other companies (in which Fujitsu has not less than a five percent (5%) stock ownership) as may be requested by Fujitsu and approved (which approval shall not be unreasonably withheld) by AMD for addition to this Attachment A. AMD AFFILIATES 1. Such companies (in which AMD has not less than a five percent (5%) stock ownership) as may be requested by AMD and approved (which approval shall not be unreasonably withheld) by Fujitsu for addition to this Attachment A. 24 27 ATTACHMENT B TO TECHNOLOGY CROSS-LICENSE AGREEMENT Each party is licensed under Section 3.1 or 3.2: 1. With regard to NVMs: (i) Fujitsu: to sell, lease, or otherwise dispose of NVMs in the countries [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] Ireland, the United Kingdom, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (ii) AMD: to sell, lease, or otherwise dispose of NVMs in the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] countries in Europe (except Ireland and the United Kingdom) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (iii) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. (iv) Each party: to assemble, package and test, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and to use, NVMs anywhere in the world. 2. With regard to Pilot Products: (i) Each party: to make [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] Pilot Products, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and to use such Pilot Products, anywhere in the world. (ii) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. 3. With regard to Memory Cards: (i) Each party: to make [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and to use Memory Cards anywhere in the world. (ii) Each party: to sell, lease or otherwise dispose of Memory Cards as provided for NVMs in 1. above or 4. below. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. 4. With regard to the European Community ("EC") (and, if the European Economic Area ("EEA") Agreement comes into effect, the EEA): Each party: commencing five years after the first commercial sale of each new NVM or Memory Card in the EC (and, if the EEA Agreement comes into effect, the EEA), and notwithstanding anything else in this 25 28 Attachment B, to sell, lease or otherwise dispose of such NVM or Memory Card anywhere in the EC (and, if the EEA Agreement comes into effect, the EEA). Notwithstanding the foregoing or anything else in this Attachment B, (i) for the first five years from such first commercial sale, each party may solicit orders, advertise, set up or appoint distributors or sales representatives, establish warehouses, and otherwise engage in active sales and marketing for such NVM or Memory Card only in the countries of the EC (and, if the EEA Agreement comes into effect, the EEA) specified for such party in 1.(i) or 1.(ii), as applicable, above, and (ii) at any time, the unsolicited sale, lease or other disposition of NVMs or Memory Cards shall be permitted between Member States of the EC (and, if the EEA Agreement comes into effect, the EEA). 26 EX-10 4 AMD INVESTMENT AGREEMENT 1 EXHIBIT 10.27(c) AMD INVESTMENT AGREEMENT ADVANCED MICRO DEVICES, INC. investing in FUJITSU LIMITED March 26, 1993 Confidential portions of this document have been deleted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 2 AMD INVESTMENT AGREEMENT TABLE OF CONTENTS 1.1 Purchases of Fujitsu Securities . . . . . . . . . . . . . 1 1.2 Timing of Purchase. . . . . . . . . . . . . . . . . . . . 2 1.3 Timing of Permitted Resales or Transfers. . . . . . . . . 2 1.4 Information on Issuances. . . . . . . . . . . . . . . . . 2 1.5 Communications. . . . . . . . . . . . . . . . . . . . . . 3 1.6 Costs and Expenses. . . . . . . . . . . . . . . . . . . . 4 1.7 Successors and Assigns. . . . . . . . . . . . . . . . . . 5 1.8 Entire Agreement; Modification. . . . . . . . . . . . . . 5 1.9 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 5 1.10 Severability. . . . . . . . . . . . . . . . . . . . . . . 5 1.11 Cooperation; Best Efforts . . . . . . . . . . . . . . . . 6 1.12 Governing Law, Language . . . . . . . . . . . . . . . . . 6 1.13 Dispute Resolution. . . . . . . . . . . . . . . . . . . . 6 1.14 Termination . . . . . . . . . . . . . . . . . . . . . . . 7
i 3 AMD INVESTMENT AGREEMENT This AMD INVESTMENT AGREEMENT (the "Agreement") is made this 26th day of March, 1993 between FUJITSU LIMITED, a Japanese stock company or kabushiki kaisha ("FUJITSU") and ADVANCED MICRO DEVICES, INC., a Delaware corporation ("AMD"). AMD and FUJITSU have entered into a Memorandum of Understanding dated July 13, 1992 regarding (a) the formation, funding and implementation of a joint venture between AMD and FUJITSU to manufacture integrated circuits (the "Joint Venture") and (b) the purchase by each party of common stock of the other party and/or its subsidiaries. 1.1 Purchases of Fujitsu Securities. Upon the terms and conditions set forth in this Agreement, AMD shall purchase bonds and/or shares of the common stock of FUJITSU having a total price of Yen 1,200,000,000 (the "Fujitsu Securities"). All Fujitsu Securities shall be purchased in the open market in Japan, unless otherwise agreed between the parties. The selection between the purchase of bonds, or the purchase of equity securities such as common stock or bonds convertible into common stock, shall be initially at FUJITSU'S discretion, provided that AMD shall have the sole discretion to vary such selection to the extent necessary for the Joint Venture to be or not to be, at AMD's discretion, a "controlled foreign corporation" of AMD (within the meaning of Chapter 1, Subchapter N, Part III, Subpart F of the Internal Revenue Code of 1986, as amended), with a reasonable margin to ensure that AMD's objective is achieved. To the extent consistent with this objective, at FUJITSU's election the parties will negotiate the terms under which AMD shall purchase publicly traded bonds issued by FUJITSU 1 4 and convertible into common stock of FUJITSU, instead of purchasing common stock. 1.2 Timing of Purchase. FUJITSU shall provide written notice to AMD regarding the extent to which FUJITSU elects to exercise its option to request AMD purchase convertible bonds rather than Fujitsu common stock within ten (10) days after the Effective Date of the Joint Venture Agreement between FUJITSU and AMD. AMD shall purchase Fujitsu Securities within thirty (30) days after receipt of such notice. 1.3 Timing of Permitted Resales or Transfers. Unless AMD enters into a firm commitment to replace the FUJITSU Securities purchased under Section 1.1 with FUJITSU Securities of equal value within 30 days after disposition, the FUJITSU Securities purchased under Section 1.1 may not be resold, hypothecated or transferred except in the following manner. Up to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the Fujitsu Securities purchased in accordance with the Agreement may be resold or transferred at any time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation of such purchase. All remaining Fujitsu Securities may be resold or transferred at any time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation of such purchase. 1.4 Information on Issuances. FUJITSU shall, to the extent legally permissible (i) provide AMD with a statement, on December 1 of each year during the term of the Joint Venture Agreement, of the number and type of voting shares and convertible debt of FUJITSU outstanding as of a date within the preceding 45 days, and (ii) provide AMD with at least seven days advance notice 2 5 prior to the issuance of additional shares (other than shares issued pursuant to conversion of debt) which would cause the number of FUJITSU voting shares outstanding at December 31 of such year to be in excess of 110% of the number of shares specified in FUJITSU's December 1 statement to AMD. 1.5 Communications. All notices and communications required, made or permitted hereunder or in connection herewith shall be in writing and shall be delivered by hand, or by messenger, or by recognized courier service (with written receipt confirming delivery), or by postage prepaid registered or certified airmail (return receipt requested), and addressed: (a) If to FUJITSU, to: FUJITSU LIMITED Furukawa Sogo Building 6-1, Marunouchi 2-chome Chiyoda-ku, Tokyo 100, Japan Attn: Mr. Hirohiko Kondo General Manager Electronic Devices Marketing Division with a copy to FUJITSU LIMITED Marunouchi Center Bldg. 6-1, Marunouchi 1-chome Chiyoda-ku, Tokyo 100, Japan Attn: Mr. Gen Iseki General Manager Legal Division 3 6 (b) If to AMD, to: (Mail) ADVANCED MICRO DEVICES, INC. P.O. Box 3453 Sunnyvale, CA 94088-3453 Attn: Marvin D. Burkett Senior Vice President and Chief Financial Officer (Hand Delivery) 915 De Guigne Drive Sunnyvale, CA Attn: Marvin D. Burkett Senior Vice President and Chief Financial Officer With a copy to: (same addresses) Attn: Thomas W. Armstrong, Esq. Vice President, General Counsel and Secretary Each such notice or other communication shall for all purposes hereunder be treated as effective or as having been given as follows: (i) if delivered in person, when delivered (ii) if sent by airmail, at the earlier of its receipt or at 5 p.m. local time of the recipient, on the seventh (7th) day after deposit in a regularly maintained receptacle for the deposit of airmail, and (iii) if sent by a recognized courier service, on the date shown in the written confirmation of delivery issued by such courier service. Either party may change the address(es) and/or addressee(s) to whom notice must be given by giving notice pursuant to this section at least seven days prior to the date the change becomes effective. 1.6 Costs and Expenses. FUJITSU and AMD each shall bear their own costs and expenses of the transactions contemplated hereby. 4 7 1.7 Successors and Assigns. This Agreement shall inure to the benefit of, and be binding on, the parties hereto and their respective successors and assigns. This Agreement may not be assigned by either party without the prior written consent of the other party. 1.8 Entire Agreement; Modification. This Agreement and all exhibits hereto and other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and neither party shall be liable or bound to the other party in any manner by any warranties, representations or covenants except as specifically set forth herein. Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by a corporate officer of the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. 1.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which may be executed by fewer than all of the parties, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. 1.10 Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided, that no such severability shall be effective if it materially changes the economic impact of this Agreement on any party. 5 8 1.11 Cooperation; Best Efforts. The parties agree to cooperate and to use their best efforts to consummate the purchase of Fujitsu Shares authorized by this Agreement. Such cooperation shall include, but not be limited to, the diligent and prompt filing and pursuit of all governmental consents, reviews or clearances required by law to be obtained by either party with respect to any or all purchases under this Agreement. 1.12 Governing Law, Language. This Agreement shall be governed in all respects by the laws of Japan. This Agreement is in the English language only, which shall be controlling in all respects. No translations, if any, of this Agreement into Japanese or any other language shall be of any force or effect in the interpretation of this Agreement as to either party hereto or in any determination of the interest of either of such parties. 1.13 Dispute Resolution. (a) Any and all disputes arising under or affecting this Agreement or any other agreement to be executed in accordance herewith shall be resolved, except as expressly provided otherwise in such other agreement, exclusively by confidential arbitration pursuant to the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or such other location as may be agreed between the parties; provided, however, that the arbitrators shall be empowered to hold hearings at other locations within and without Japan. Each of the parties shall designate one arbitrator and the two arbitrators so designated shall select the third arbitrator. Arbitration proceedings shall be conducted in English with simultaneous translation into Japanese. Among the remedies available to them, the arbitrators shall be authorized to require specific performance of provisions of this Agreement. The judgment upon award of the arbitrators shall be final and binding and may be enforced in any court of 6 9 competent jurisdiction in the United States or Japan, and each of the parties hereto unconditionally submits to the jurisdiction of such court for the purpose of any proceeding seeking such enforcement. Subject only to the provisions of Applicable Law and, except as aforesaid, the procedure described in this Section 1.13 shall be the exclusive means of resolving disputes arising under or affecting this Agreement and all other agreements to be executed in accordance herewith. (b) All papers, documents or evidence, whether written or oral, filed with or presented to the panel of arbitrators shall be deemed by the parties and by the arbitrators to be confidential information. No party or arbitrator shall disclose in whole or in part to any other person any confidential information submitted in connection with the arbitration proceedings, except to the extent reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute. Confidential information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to outside experts requested by either party's counsel to furnish technical or expert services or to give testimony at the arbitration proceedings, subject, in the case of such experts, to execution of a legally binding written statement that such expert agrees to comply with the confidentiality terms of this Section, and that such expert will not use any confidential information disclosed to such expert for personal or business advantage. 1.14 Termination. If either party transfers its shares in the Joint Venture pursuant to the Joint venture Agreement, or is a Triggering Party under the Joint Venture Agreement, the other party shall have the right to terminate this Agreement. This agreement may be terminated by either party pursuant to the 7 10 rights given it under subsection 7.5.A of the Joint Venture Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers as of the day and year first above written. FUJITSU LIMITED By: /s/ HIKOTARO MASUNAGA ________________________________ Hikotaro Masunaga ADVANCED MICRO DEVICES, INC. By: /s/ MARVIN D. BURKETT _________________________________ Marvin D. Burkett Chief Financial Officer 8 EX-10 5 FUJIYSU AGREEMENT 1 EXHIBIT 10.27(d) FUJITSU INVESTMENT AGREEMENT INVESTMENT AGREEMENT of FUJITSU LIMITED investing in ADVANCED MICRO DEVICES, INC. March 26, 1993 Confidential portions of this document have been deleted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 2 FUJITSU INVESTMENT AGREEMENT FUJITSU LIMITED investing in ADVANCED MICRO DEVICES, INC. Table of Contents RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PURCHASES AND SALES OF AMD SHARES. . . . . . . . . . . . . . . 1 1.1 Purchase of AMD Shares . . . . . . . . . . . . . . . 1 1.2 Timing of Purchases. . . . . . . . . . . . . . . . . 2 1.3 Manner of Sale . . . . . . . . . . . . . . . . . . . 3 1.4 Purchase Price(s) of AMD Shares; Limitation on Total Purchase Price and Total Number of AMD Shares . . . . . . . . . . . . . . . . . . . . . . . 4 1.5 Suspension of Obligation to Purchase.. . . . . . . . 5 RESTRICTIONS ON RESALE AND VOTING OF AMD SHARES. . . . . . . . 5 2.1 No Rights of Registration, Repurchase, First Refusal or Redemption. . . . . . . . . . . . . . . . 5 2.2 Restricted Nature of AMD Shares; Legend; Manner and Timing of Permitted Resales or Transfers . . . . . . 6 REPRESENTATIONS AND WARRANTIES OF THE PARTIES. . . . . . . . . 8 3.1 Representations and Warranties of AMD. . . . . . . . 8 3.2 Representations and Warranties of FUJITSU. . . . . . 8 CONDITIONS TO CLOSINGS OF PURCHASES OF AMD SHARES. . . . . . . 10 4.1 Conditions to AMD's Obligations. . . . . . . . . . . 10 4.2 Conditions to FUJITSU's Obligations. . . . . . . . . 11 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 12 5.1 Costs and Expenses. . . . . . . . . . . . . . . . . 12 5.2 Successors and Assigns. . . . . . . . . . . . . . . 12 5.3 Communications. . . . . . . . . . . . . . . . . . . 12 5.4 Entire Agreement; Modification. . . . . . . . . . . 14 5.5 Captions. . . . . . . . . . . . . . . . . . . . . . 14 5.6 Counterparts. . . . . . . . . . . . . . . . . . . . 15 5.7 Severability. . . . . . . . . . . . . . . . . . . . 15 5.8 Governing Law, Language . . . . . . . . . . . . . . 15 5.9 Notice and Correction of Breach . . . . . . . . . . 15 5.10 Dispute Resolution. . . . . . . . . . . . . . . . . 16 5.11 Termination . . . . . . . . . . . . . . . . . . . . 17 5.12 Cooperation; Best Efforts . . . . . . . . . . . . . 17
i 3 FUJITSU INVESTMENT AGREEMENT This INVESTMENT AGREEMENT (the "Agreement") is made this 26th day of March, 1993 between FUJITSU LIMITED, a Japanese stock company or kabushiki kaisha ("FUJITSU") and ADVANCED MICRO DEVICES, INC., a Delaware corporation ("AMD"). RECITALS WHEREAS, AMD and FUJITSU have entered into a Memorandum of Understanding dated July 13, 1992 (the "MOU") regarding (a) the formation, funding and implementation of a joint venture between AMD and FUJITSU to manufacture integrated circuits and (b) the purchase by each party of common stock of the other party and/or its subsidiaries. ARTICLE I PURCHASES AND SALES OF AMD SHARES 1.1 Purchase of AMD Shares. Upon the terms and subject to the conditions set forth in this Agreement, FUJITSU agrees to purchase from AMD, and AMD agrees to sell to FUJITSU, up to Four Million Five Hundred Thousand (4,500,000) shares (the "AMD Shares") of the $.01 par value common stock of AMD (the "AMD Common Stock"); provided that FUJITSU will not be required to purchase more than five percent (5%) of the issued and outstanding shares of AMD common stock. The AMD Shares shall be purchased and sold in installments as set forth in Section 1.2 below, and the exact number of AMD Shares to be sold and purchased and the price or 2 4 prices at which such AMD Shares shall be sold and purchased shall be determined pursuant to Section 1.4 below. 1.2 Timing of Purchases. The AMD Shares shall be sold and purchased in nine (9) installments, as follows: (i) an initial sale and purchase of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shares (the "Initial Purchase") which shall be consummated within thirty (30) business days following the Effective Date of the Joint Venture Agreement, dated March 30, 1993, between the parties ("the Joint Venture Effective Date"), as anticipated in the MOU, and (ii) eight (8) additional sales and purchases of up to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shares each (collectively, the "Subsequent Purchases"), to be consummated by two (2) annual purchases of such amount, the first such purchase to be consummated prior to the last business day of the sixth (6th) month following the Joint Venture Effective Date (the "First Subsequent Purchase") and the second annual purchase to be consummated prior to the last business day of the twelfth (12th) month following the Joint Venture Effective Date (the "Second Subsequent Purchase"), with the Third through Eighth Subsequent Purchases being made in the same manner as the First and Second Subsequent Purchases, i.e., prior to the last business day of the eighteenth (18th), twenty-fourth (24th), thirtieth (30th), thirty-sixth (36th), forty-second (42nd) and forty-eighth (48th) months, respectively, following the Joint Venture Effective Date. Unless the parties agree otherwise in writing, each of the purchases of AMD Shares authorized by this Agreement shall be closed at the AMD main corporate offices, currently 915 DeGuigne Drive, Sunnyvale, California, at 9:00 a.m. local time on the date designated herein for each purchase. If at the time or times scheduled for a purchase of AMD Shares FUJITSU's financial 3 5 condition is so constrained that it would, in the good faith judgement of FUJITSU, be imprudent for such purchase to be closed on the scheduled date, FUJITSU shall notify AMD not less than thirty (30) days prior to the date scheduled for such purchase. If such notice is given, the parties will negotiate in good faith to reschedule the closing in question, but the determination of the purchase price for such closing shall not be affected by any such rescheduling. Participation in such negotiations shall not affect the obligations of FUJITSU to effect the aggregate purchases of AMD Shares pursuant to this section. FUJITSU will not be in default under this Agreement, the Joint Venture Agreement, or other agreements between the parties, as a result of failing to meet the closing schedule in question, so long as the aggregate delay in meeting the original schedule for such purchases (as set forth in this section 1.2) does not exceed twelve (12) months. 1.3 Manner of Sale. The offer and sale of the AMD Shares to FUJITSU shall not be registered under Section 4(2) of the Securities Act of 1933, as amended (the "1933 Act"). The AMD Shares shall not involve a public offering, but shall be issued pursuant to an exemption under Section 4(2) of the 1933 Act. The AMD Shares when issued in accordance with this Agreement shall be deemed to be "restricted shares" within the meaning of Rule 144 under the 1933 Act, the resale of which shall comply with applicable provisions of Article II of the Agreement. The parties agree to cooperate with respect to the closing of each installment purchase and to deliver and execute all such records, documents and instruments necessary or desirable to facilitate each such sale and purchase as either party shall reasonably request. 4 6 1.4 Purchase Price(s) of AMD Shares; Limitation on Total Purchase Price and Total Number of AMD Shares. The purchase price of each installment of the AMD Shares shall be payable in United States dollars by wire transfer or otherwise as AMD shall reasonably request, and: (i) for the Initial Purchase, shall be equal to the number of AMD Shares acquired in the installment times the average of the closing sales prices of AMD common stock on the New York Stock Exchange for the sixty (60) trading days ending on the Joint Venture Effective Date, and (ii) for the First through Eighth Subsequent Purchases, the average of the closing sales prices on the New York Exchange for the sixty (60) trading days ending on the twentieth day of the month preceding the month in which the purchase is scheduled, or if the Exchange is not open for trading on such date, on the trading day preceding such date. AMD shall provide FUJITSU with a calculation of each such purchase price within three days following the end of the relevant sixty-day period. Such calculation shall be provided by facsimile, the numbers of which shall be designated by Fujitsu in advance, as well as pursuant to section 5.3 below. Notwithstanding the foregoing sentence, FUJITSU shall not be required, except in its own discretion, to pay for the AMD Shares acquired in the Initial Purchase and Subsequent Purchases a total amount in excess of US$100,000,000 or an amount in excess of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] in any twelve-month period. In the event the total purchase price of the AMD Shares exceeds US$100,000,000 and FUJITSU elects not to pay more than US$100,000,000 for the AMD Shares, the 5 7 number of AMD Shares which AMD shall be required to deliver to FUJITSU shall be reduced proportionately. 1.5 Suspension of Obligation to Purchase. FUJITSU and AMD are contemporaneously executing a separate agreement providing for the purchase of Common Stock or bonds of FUJITSU by AMD. Further, FUJITSU and AMD are parties to a Joint Venture Agreement pursuant to which each party agrees to advance funds to the joint venture if the joint venture is unable to secure necessary financing. If AMD does not make any such advance when required to do so, FUJITSU's obligations to purchase shares of AMD stock pursuant to this Agreement shall be suspended until AMD makes such advances, and the purchase dates and corresponding time periods used to calculate the purchase prices as specified in sections 1.2 and 1.4 shall be extended by the number of months that Fujitsu's purchase obligation was suspended. ARTICLE II RESTRICTIONS ON RESALE AND VOTING OF AMD SHARES 2.1 No Rights of Registration, Repurchase, First Refusal or Redemption. FUJITSU shall have no right at any time to require AMD to register or qualify the sale of any of the AMD Shares under the 1933 Act or the securities laws of any state, country or other jurisdiction, or to include the AMD Shares under any other registration by AMD of its securities. AMD shall have no obligation to repurchase the AMD Shares or, except as provided herein, in any manner to cooperate or assist in the resale of the AMD Shares by FUJITSU to any other party. The AMD Shares shall not be subject to redemption by AMD, and AMD shall have no right or obligation, commonly known as a "right of first refusal" or "right of first offer," to acquire any of the AMD Shares either 6 8 upon the terms and conditions first agreed upon by and between FUJITSU and any other party or prior to any such agreement relating to such terms and conditions. 2.2 Restricted Nature of AMD Shares; Legend; Manner and Timing of Permitted Resales or Transfers. (a) The AMD Shares shall be deemed to be "restricted shares" within the meaning of Rule 144 under the 1933 Act, and may not be resold, hypothecated, pledged, otherwise encumbered or transferred by FUJITSU except as provided herein. In order to assure compliance with this Agreement and with the 1933 Act and regulations thereunder, AMD before delivering to FUJITSU certificates representing the AMD Shares shall cause such certificates to be legended with the following legend to indicate the restrictions placed upon their resale or transfer: THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS AS SET FORTH IN AN AGREEMENT DATED MARCH 26, 1993, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF ADVANCED MICRO DEVICES, INC., AND MAY NOT BE RESOLD PRIOR TO [DATE]*. THE SHARES REPRESENTED BY THIS CERTIFICATE ARE DEEMED TO BE RESTRICTED SHARES FOR PURPOSES OF RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"). NO TRANSFER OF THESE SHARES MAY BE MADE EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, UNLESS ADVANCED MICRO DEVICES HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO IT THAT SUCH TRANSFER DOES NOT REQUIRE REGISTRATION UNDER THE ACT. (b) The AMD Shares shall not be resold or transferred by FUJITSU except pursuant to a valid and effective registration - - ---------- * [DATE] refers to the dates specified in 202(c), below 7 9 thereof under the 1933 Act or an exemption from registration which is available thereunder. AMD and/or its transfer agent shall have the right to require, prior to resale or transfer under any such exemption, that FUJITSU provide to AMD and for its and/or its transfer agent's benefit an opinion of counsel, in form and substance reasonably satisfactory to AMD, stating and opining that registration is not required. (c) Except as provided in subsections (d) and (e) below, the AMD Shares may not be resold or transferred except in the following manner. Up to [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the AMD Shares purchased in the Initial Purchase or any Subsequent Purchase may be resold or transferred at any time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation of such purchase. Up to an additional [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of such shares may be resold or transferred at any time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation of such purchase (d) FUJITSU may tender or sell any of the AMD Shares then owned by it, without restriction under this Agreement, in the event of, and in accordance with the terms and conditions of, (i) a tender or exchange offer for shares of common stock of AMD commenced by AMD, or (ii) a tender, exchange or other offer for such shares of common stock commenced by a third party and approved by the Board of Directors of AMD. (e) Except for the resales or other transfers permitted by subsections (c) or (d) above, FUJITSU may not 8 10 transfer any of the AMD Shares to any other person or entity including an affiliate of FUJITSU, by gift or otherwise, without the prior written consent of AMD. This restriction shall expire on the earlier of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], or [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE PARTIES 3.1 Representations and Warranties of AMD. Except as provided in Section 4.2(b) hereof, AMD does not make and shall not be required to make to FUJITSU any representations or warranties of any kind in connection with its sale of the AMD Shares, including but not limited to representations or warranties regarding the AMD Shares or the financial condition or results of operations of AMD. 3.2 Representations and Warranties of FUJITSU. (a) Except as provided in this Section 3.2 and in Section 4.1(a) hereof, FUJITSU does not make and shall not be required to make to AMD any representations or warranties of any kind in connection with its purchases of the AMD Shares. (b) FUJITSU represents and warrants to AMD as follows: (i) FUJITSU is and shall be as of the closing of each of the Initial Purchase and the Subsequent Purchases an "accredited investor" within the meaning of Rule 501(a)(3) under the 1933 Act. 9 11 (ii) FUJITSU is acquiring and will acquire the AMD Shares for its own account for the purpose of investment and not with a view to or for resale in connection with any distribution thereof. (iii) FUJITSU has such knowledge and experience in financial and business matters as to be capable of evaluating on its own the merits and risks of investment in the AMD Shares. (iv) FUJITSU has had opportunity to ask questions of and receive answers from AMD concerning the terms and conditions of the offer and sale of the AMD Shares, and to obtain all additional information from AMD which FUJITSU deems necessary to verify the accuracy of the information contained in the following, copies of which (including all exhibits filed with or incorporated by reference therein except, at AMD's option, any exhibit with respect to which confidential treatment has been granted) FUJITSU acknowledges to have received from AMD: (1) AMD's annual report on Form 10-K filed with the Securities and Exchange Commission (the "Commission") for its most recent fiscal year. (2) AMD's filings with the Commission on Forms 10-Q and 8-K since the filing of its report on Form 10-K for the most recent fiscal year. 10 12 ARTICLE IV CONDITIONS TO CLOSINGS OF PURCHASES OF AMD SHARES 4.1 Conditions to AMD's Obligations. The obligations of AMD to close the Initial Purchase and the Subsequent Purchases shall be subject to the fulfillment of the following conditions, any or all of which may be waived in writing by AMD: (a) AMD shall have received from FUJITSU an officers' certificate dated the date of closing in substantially the form set forth in Exhibit A hereto, signed by an authorized representative of FUJITSU who is at least department manager management level ("bucho") or above. (b) All required consents, clearances and permits of any governmental entity applicable to the purchase shall have been obtained and be in effect and not withdrawn, and all applicable waiting periods shall have expired, including but not limited to any consents or waiting periods required by the Hart- Scott-Rodino Antitrust Improvements Act and Section 5021 of the Omnibus Trade and Competitiveness Act of 1988 (50 U.S.C. App. Section 2170) and regulations issued by the Department of the Treasury thereunder. (c) The Joint Venture Agreement shall have been executed by the parties and be in full force and effect, and no notice shall have been given by AMD to FUJITSU of any material breach of this Agreement or the Joint Venture Agreement by FUJITSU which shall not have been corrected to the reasonable satisfaction of AMD. (d) The agreement relating to the purchase of equity of FUJITSU by AMD shall have been executed by the parties 11 13 thereto, and no notice shall have been given by AMD to FUJITSU of any material breach thereof, that shall not have been corrected to the reasonable satisfaction of AMD. 4.2 Conditions to FUJITSU's Obligations. The obligations of FUJITSU to close the Initial Purchase and the Subsequent Purchases shall be subject to the fulfillment of the following conditions, any or all of which may be waived in writing by FUJITSU: (a) AMD shall continue to be listed on the New York Stock Exchange, NASDAQ, or the American Stock Exchange, or any successor of such exchange recognized by the U.S. Securities and Exchange Commission. (b) FUJITSU shall have received from AMD an officers' certificate dated the date of closing in substantially the form set forth in Exhibit B hereto, signed by an authorized representative of AMD. (c) All required consents, clearances and permits of any governmental entity applicable to the purchase shall have been obtained and be in effect and not withdrawn and all applicable waiting periods shall have expired, including but not limited to any consents or waiting periods required by the Hart-Scott-Rodino Antitrust Improvements Act and Section 5021 of the Omnibus Trade and Competitiveness Act of 1988 (50 U.S.C. App. Section 2170) and regulations issued by the Department of the Treasury thereunder. (d) The Joint Venture Agreement shall have been executed by the parties and be in full force and effect, and no 12 14 notice shall have been given by FUJITSU to AMD of any material breach of this Agreement or the Joint Venture Agreement by AMD which shall not have been corrected to the reasonable satisfaction of FUJITSU. (e) The agreement relating to the purchase of equity of FUJITSU by AMD shall have been executed by the parties thereto, and no notice shall have been given by FUJITSU to AMD of any material breach thereof that shall not have been corrected to the reasonable satisfaction of FUJITSU. ARTICLE V MISCELLANEOUS PROVISIONS 5.1 Costs and Expenses. AMD and FUJITSU each shall bear their own costs and expenses incurred with respect to this Agreement, including but not limited to the costs and expenses of each installment purchase of AMD Shares contemplated hereby. 5.2 Successors and Assigns. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and assigns. This Agreement may not be assigned by either party without the prior written consent of the other party. 5.3 Communications. All notices and communications required, made or permitted hereunder shall be in writing and shall be delivered by hand, or by messenger, or by recognized courier service (with written receipt confirming delivery), or by postage prepaid registered or certified airmail (return receipt requested), addressed: 13 15 (a) If to FUJITSU, to: FUJITSU LIMITED Furukawa Sogo Bldg. 6-1, Marunouchi 2-chome Chiyoda-ku, Tokyo 100, Japan Attn: Hirohiko Kondo General Manager, Electronic Devices Marketing Division with a copy to: FUJITSU LIMITED Marunouchi Center Bldg. 6-1, Marunouchi 1-chome Chiyoda-ku, Tokyo 100, Japan Attn: Gen Iseki General Manager, Legal Division (b) If to AMD, to: (Mail) ADVANCED MICRO DEVICES, INC. P.O. Box 3453 Sunnyvale, CA 94088-3453 Attn: Marvin D. Burkett Senior Vice President, Chief Financial Officer (Hand Delivery) ADVANCED MICRO DEVICES, INC. 915 DeGuigne Drive Sunnyvale, CA With a copy to: (same addresses as above) Attn: Thomas W. Armstrong, Esq. Vice President, General Counsel and Secretary 14 16 Each such notice or other communication shall for all purposes hereunder be treated as effective or as having been given as follows: (i) if delivered in person, when delivered; (ii) if sent by airmail, at the earlier of its receipt or at 5 pm local time of the recipient, on the seventh day after deposit in a regularly maintained receptacle for the deposit of airmail; and (iii) if sent by recognized courier service, on the date shown in the written confirmation of delivery issued by such delivery service. Either party may change the addresses and/or addressees to whom notice must be given by giving notice pursuant to this section at least seven days prior to the date the change becomes effective. 5.4 Entire Agreement; Modification. This Agreement and all exhibits hereto and other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the parties with regard to the subject matter hereof, and neither party shall be liable or bound to the other party in any manner by any warranties, representations or covenants except as specifically set forth herein. Except as expressly provided herein, neither this Agreement nor any term hereof may be amended, waived, discharged or terminated other than by a written instrument signed by a corporate officer of the party against whom enforcement of any such amendment, waiver, discharge or termination is sought. 5.5 Captions. Headings of the various sections of this Agreement have been inserted for convenience of reference only and shall not be relied upon to limit the construction of this Agreement. 15 17 5.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which may be executed by fewer than all of the parties, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument. 5.7 Severability. In the event that any provision of this Agreement becomes or is declared by a court of competent juris- diction to be illegal, unenforceable or void, this Agreement shall continue in full force and effect without said provision; provided, that no such severability shall be effective if it materially changes the economic impact of this Agreement on any party. 5.8 Governing Law, Language. This Agreement shall be governed in all respects by the laws of the United States and the State of Delaware. This Agreement is in the English language only, which shall be controlling in all respects. No transla- tion, if any, of this Agreement into Japanese or any other language shall be of any force or effect in the interpretation of this Agreement as to either party hereto or in any determination of the intent of either of such parties. 5.9 Notice and Correction of Breach. Either party believing that the other party has materially breached this Agreement, prior to institution of any proceeding for specific performance pursuant to Section 5.10, shall give notice to the other party specifying the nature of the breach and requesting that it be corrected. If within sixty (60) days after such notice is given the accused party has not to the satisfaction of the accusing party responded and materially commenced or completed the correction of the breach asserted, the party giving 16 18 notice may take such other action permitted to it by this Agreement or in law or equity. 5.10 Dispute Resolution. (a) Any and all disputes arising under or affecting this Agreement or any other agreement to be executed in accordance herewith shall be resolved, except as expressly provided otherwise in such other agreement, exclusively by confidential arbitration pursuant to the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or such other location as may be agreed between the parties; provided, however, that the arbitrators shall be empowered to hold hearings at other locations within and without Japan. Each of the parties shall designate one arbitrator and the two arbitrators so designated shall select the third arbitrator. Arbitration proceedings shall be conducted in English with simultaneous translation into Japanese. Among the remedies available to them, the arbitrators shall be authorized to require specific performance of provisions of this Agreement. The judgment upon award of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction in the United States or Japan, and each of the parties hereto unconditionally submits to the jurisdiction of such court for the purpose of any proceeding seeking such enforcement. Subject only to the provisions of Applicable Law and, except as aforesaid, the procedure described in this Section 5.10 shall be the exclusive means of resolving disputes arising under or affecting this Agreement and all other agreements to be executed in accordance herewith. (b) All papers, documents or evidence, whether written or oral, filed with or presented to the panel of arbitrators shall be deemed by the parties and by the arbitrators to be confidential information. No party or arbitrator shall 17 19 disclose in whole or in part to any other person any confidential information submitted in connection with the arbitration proceedings, except to the extent reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute. Confidential information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to outside experts requested by either party's counsel to furnish technical or expert services or to give testimony at the arbitration proceedings, subject, in the case of such experts, to execution of a legally binding written statement that such expert agrees to comply with the confidentiality terms of this Section, and that such expert will not use any confidential information disclosed to such expert for personal or business advantage. 5.11 Termination. If either party transfers its shares in the Joint Venture pursuant to the Joint Venture Agreement, or is a Triggering Party under the Joint Venture Agreement, the other party shall have the right to terminate this Agreement. This agreement may be terminated by either party pursuant to the rights given it under subsection 7.5.A of the Joint Venture Agreement. 5.12 Cooperation; Best Efforts. The parties agree to cooperate and to use their best efforts to consummate all purchases of AMD Shares authorized by this Agreement. Such cooperation shall include, but not be limited to, the diligent and prompt filing and pursuit of all governmental consents, reviews or clearances required by law to be obtained by either party with respect to any or all of the Initial Purchase and the Subsequent Purchases. 18 20 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized officers as of the day and year first above written. FUJITSU LIMITED By /s/ HIKOTARO MASUNAGA ____________________________ Hikotaro Masunaga ADVANCED MICRO DEVICES, INC. By /S/ MARVIN D. BURKETT _____________________________ Marvin D. Burkett Chief Financial Officer 19 21 EXHIBIT A CLOSING CERTIFICATE OF OFFICERS OF FUJITSU LIMITED I am the duly elected, qualified and acting ______________________ (bucho) of Fujitsu Limited, a Japanese stock company ("Fujitsu"). I hereby certify that, to the best of my knowledge, the representations and warranties contained in section 6.1 of the Joint Venture Agreement by and between Advanced Micro Devices, Inc. and Fujitsu, Limited, dated ___________ and the representations and warranties contained in section 3.2 of the Investment Agreement of Fujitsu Limited into Advanced Micro Devices, Inc., dated ____________, remain true and correct as of the date hereof. IN WITNESS WHEREOF, I have executed this Certificate on this ___ day of ____________, 199__. 20 22 EXHIBIT B CLOSING CERTIFICATE OF OFFICERS OF ADVANCED MICRO DEVICES, INC. I am the duly elected, qualified and acting ______________________, of Advanced Micro Devices, Inc., a Delaware corporation ("AMD"). I hereby certify that, to the best of my knowledge, the representations and warranties contained in section 6.2 of the Joint Venture Agreement by and between Advanced Micro Devices, Inc. and Fujitsu, Limited, dated __________, and the representation and warranties contained in section 3.1 of the Investment Agreement of Fujitsu Limited into Advanced Micro Devices, Inc., dated ____________, remain true and correct as of the date hereof. IN WITNESS WHEREOF, I have executed this Certificate on this ___ day of ________, 199___. 21 EX-10 6 JOINT VENTURE LICENSE AGREEMENT 1 EXHIBIT 10.27(e) JOINT VENTURE LICENSE AGREEMENT Confidential portions of this document have been deleted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment. 2 JOINT VENTURE LICENSE AGREEMENT Table of Contents
Page INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2 2. GRANTS OF LICENSE . . . . . . . . . . . . . . . . . . . . 3 3. SUPPORT AND TRAINING. . . . . . . . . . . . . . . . . . . 4 4. CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . 4 5. TAXATION. . . . . . . . . . . . . . . . . . . . . . . . . 6 6. INTELLECTUAL PROPERTY RIGHTS. . . . . . . . . . . . . . . 6 7. EXCHANGE OF INFORMATION AND CONFIDENTIALITY . . . . . . . 7 8. RESIDENCE AT JV FACILITY. . . . . . . . . . . . . . . . . 8 9. THIRD PARTY CLAIM . . . . . . . . . . . . . . . . . . . . 8 10. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. . . . 9 11. TERM AND TERMINATION. . . . . . . . . . . . . . . . . . . 10 12. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 12 ATTACHMENT A . . . . . . . . . . . . . . . . . . . . . . . . . 20 ATTACHMENT B . . . . . . . . . . . . . . . . . . . . . . . . . 21 ATTACHMENT C . . . . . . . . . . . . . . . . . . . . . . . . . 22 ATTACHMENT D . . . . . . . . . . . . . . . . . . . . . . . . . 23
i 3 JOINT VENTURE LICENSE AGREEMENT This Joint Venture License Agreement (this "Agreement"), dated as of April 16, 1993, is among ADVANCED MICRO DEVICES, INC. ("AMD"), a Delaware corporation having its principal office at 901 Thompson Place, Sunnyvale, California 94088-3453, U.S.A., FUJITSU LIMITED ("Fujitsu"), a Japanese corporation having its registered office at 1015 Kamikodanaka, Nakahara-ku, Kawasaki 211, Japan, and FUJITSU AMD SEMICONDUCTOR LIMITED ("JV"), a Japanese corporation having its registered office at 1263 Kamikodanaka, Nakahara-ku, Kawasaki 211, Japan. INTRODUCTION A. Fujitsu and AMD have entered into a joint venture agreement dated March 30, 1993 (the "Joint Venture Agreement"), and other related agreements to establish JV to manufacture and supply certain integrated circuits. B. Fujitsu is, among other things, in the business of designing, developing, manufacturing and selling semiconductor products. C. AMD is, among other things, in the business of designing, developing, manufacturing and selling semiconductor products. D. JV desires Fujitsu and AMD to grant to JV, and Fujitsu and AMD are willing to grant to JV, a limited license to use their respective intellectual property rights for manufacturing and supplying certain JV Products (as defined in the Joint Development Agreement), subject to the terms and conditions as hereinafter set forth. E. JV desires to obtain from Fujitsu and AMD, and Fujitsu and AMD are willing to supply JV, certain relevant technology, technical training and support for such JV Products. F. Fujitsu and AMD desire JV to grant to Fujitsu and AMD, and JV is willing to grant to Fujitsu and AMD, a license to use JV's intellectual property rights to make, use or sell products, subject to the terms and conditions as hereinafter set forth. ACCORDINGLY, in consideration of the mutual covenants and promises contained herein, Fujitsu, AMD and JV agree as follows: Article 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings: 1 4 Section 1.1 The following words as used herein have the meanings defined in the Technology Cross-License Agreement between AMD and Fujitsu ("Technology Cross-License") dated as of March 1993 (except that, for purposes of this Agreement, references in Sections 1.9 and 1.25 of the Technology Cross-License to "this Agreement" shall mean this Agreement).
Technology Cross- Definition License Section ---------- ----------------- "Affiliate" 1.1. "Applicable Law" 1.2. "Confidential Information" 1.4. "EPROM" or "Electrically Programmable Read Only Memory" 1.7. "Flash Memory" 1.8. "Governmental Approvals" 1.9. "Governmental Authority" 1.10. "Incorporated Product" 1.11. "Joint Development Agreement" 1.13. "Memory Card" 1.20. "Nondisclosure Agreements" 1.21. "NVM" or "Non-Volatile Memory" 1.23. "Other IPR" 1.24. "Patents" 1.25. "Pilot Product" 1.26. "Proprietary Information" 1.28. "Subsidiary" 1.33. "Transitional Event" 1.34.
Section 1.2. "AMD/Fujitsu Technology" shall mean the front-end manufacturing process technology for manufacturing JV Products and the product design data for JV Products owned or developed by Fujitsu and/or AMD and provided or transferred to JV by AMD or Fujitsu in accordance with this Agreement. The major elements of AMD/Fujitsu Technology to be provided are currently anticipated as set forth in Attachment D hereto. Section 1.3. "Effective Date" shall mean the later to occur of (a) the date of this Agreement or (b) the date on which all required Governmental Approvals have been obtained. Section 1.4. "IPR" or "Intellectual Property Rights", (a) with respect to Fujitsu or AMD, shall have the meaning set forth in the Technology Cross-License, and (b) with respect to JV, shall mean all Patents of JV and all copyrights, mask works, trade secrets, know-how, data, formula, processes, confidential information, or other information, tangible or otherwise, that are wholly owned by JV or as to which, and only to the extent and subject to the conditions under which, JV has the right, as of the Effective Date or thereafter during the term of this Agreement, to grant licenses or sublicenses of the scope granted herein, without such grant resulting in the payment of royalties or other consideration to third parties (unless and until JV is reimbursed for any payments so made, in which case such information shall be included within IPR for any license or sublicense to the party providing the 2 5 reimbursement) except for payments to a Subsidiary of JV, if any, or payments to third parties for IPR developed or created by such third parties while employed by JV or any Subsidiary thereof. Section 1.5. [Intentionally omitted] Section 1.6. "JV Product" shall have the meaning set forth in Section 1.4 of the Joint Development Agreement. Section 1.7. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] Section 1.8. "Subject Technology IPR" shall have the meaning set forth in Section 1.6 of the Joint Development Agreement. Section 1.9. "Tripartite IPR" shall mean IPR which, during the term of this Agreement, all of AMD, Fujitsu, and JV jointly own and/or control as a result of the joint development and design work done by all three parties hereunder. Article 2. GRANTS OF LICENSE. Section 2.1. Fujitsu hereby grants to JV a non-exclusive, non- transferable license under Fujitsu IPR, with no right to sublicense: (a) to make, have made (it being understood that for purposes of this Agreement the terms "make" and "have made" shall include the acts of assembling and/or testing) and use JV Products and to use Pilot Products anywhere in the world; and (b) to sell, lease or otherwise dispose of JV Products and Pilot Products solely in the countries specified in Attachment A. Section 2.2. AMD hereby grants to JV a non-exclusive, non- transferable license under AMD IPR, with no right to sublicense: (a) to make, have made and use JV Products and to use Pilot Products anywhere in the world; and (b) to sell, lease and otherwise dispose of JV Products and Pilot Products solely in the countries specified in Attachment B. Section 2.3. JV hereby grants to AMD and Fujitsu a non- exclusive, non-transferable, perpetual, irrevocable, [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], worldwide license, with the right to sublicense freely, under JV IPR to make, have made, use, sell, lease or otherwise dispose of any processes, manufacturing apparatus, or products anywhere in the world. 3 6 Section 2.4. JV agrees that it shall notify AMD and Fujitsu of any significant modifications to AMD/Fujitsu Technology or JV technology. Article 3. SUPPORT AND TRAINING. Section 3.1. AMD and Fujitsu shall use their best efforts to provide AMD/Fujitsu Technology to JV in accordance with the schedule set forth in Attachment C hereto, as such schedule may be modified from time to time upon mutual agreement of the parties. Section 3.2. AMD and Fujitsu agree to cooperate with each other and with JV in providing to JV the AMD/Fujitsu Technology. Section 3.3. Either AMD or Fujitsu may, upon the consent of AMD in the case of Fujitsu or Fujitsu in the case of AMD, provide JV with new AMD/Fujitsu Technology as a replacement for previously provided AMD/Fujitsu Technology. Section 3.4. Each of Fujitsu and AMD shall use best efforts to provide to JV without charge initial technical training or support as required in connection with the delivery of AMD/Fujitsu Technology. Such technical training shall be provided in accordance with a schedule to be mutually agreed upon by the JV and the party responsible for providing such Technology, but in any event such training or support shall last no longer than ninety (90) days from the date of the first delivery of the relevant Technology. Section 3.5. From time to time after the provision of technical training or support contemplated by Section 3.4, JV may request and Fujitsu and/or AMD, as the case may be, may provide, additional technical training or support upon terms and conditions as agreed between or among Fujitsu and/or AMD and the JV. The responsible party as set forth in Section 3.4 above shall be responsible for such additional technical training or support. Section 3.6. JV shall assign one or more of its employees to be responsible for receiving and managing AMD/Fujitsu Technology, and shall notify AMD and Fujitsu of the name of such employee(s) prior to the delivery of any AMD/Fujitsu Technology. When JV changes such responsible employee(s), JV shall notify Fujitsu and AMD of such change in writing without delay. Article 4. CONSIDERATION. Section 4.1. In consideration of the license to Fujitsu IPR granted under Section 2.1, and the rights in Tripartite IPR acquired by JV under Sections 6.1 and 6.2, JV agrees to pay Fujitsu [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] which shall be due for all JV Products sold, leased, or otherwise transferred by JV worldwide. Section 4.2. In consideration for the license to AMD IPR granted under Section 2.2, and the rights in Tripartite IPR acquired by JV under Sections 6.1 and 6.2, JV agrees to pay AMD [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] which shall be due for all JV Products sold, leased, or otherwise transferred by JV worldwide. Section 4.3. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shall be payable semi-annually within sixty (60) days after the end of each half of JV's fiscal year. 4 7 On or before the date of such payment JV shall send to Fujitsu and AMD a report describing the basis for its [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] calculation. Notwithstanding Sections 4.1 and 4.2 and any other provisions hereof, no [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shall be payable by JV to a party on JV Products if such JV Products do not embody, do not incorporate or are not otherwise subject to (or are not manufactured through processes or methods that embody, incorporate or are otherwise subject to) the IPR of such party, Subject Technology IPR, or Tripartite IPR. Section 4.4. JV shall pay to Fujitsu and/or AMD, as the case may be, a fee for any technical training provided to JV by Fujitsu and/or AMD pursuant to Section 3.5 at a rate to be mutually agreed by the JV, Fujitsu and AMD, which shall include a fee for the services of any employees provided and all actual costs incurred by Fujitsu and/or AMD, as the case may be, in providing such training, including but not limited to, travel, hotel and per diem expenses of such employee(s) and any costs of translation and reproduction of written materials. JV shall pay such fee to Fujitsu and/or AMD, as the case may be, within thirty (30) days of the date of the invoice issued by Fujitsu or AMD. Section 4.5. All payments made hereunder pursuant to Section 4.3 and 4.4 above shall be free and clear of all deductions, withholding taxes or other charges, except as provided in Article 5, and shall be made by JV in Japanese yen to Fujitsu or US dollars to AMD, by wire transfer to a bank account(s) designated by Fujitsu or AMD, as the case may be, unless otherwise mutually agreed upon. Any currency conversion required in connection with payment to Fujitsu or AMD, as the case may be, shall be at the rate received by JV at the time of such payment from the bank it utilizes to make such payment. Section 4.6. Fujitsu and AMD shall each have the right, at its own expense, upon reasonable notice and at reasonable times, but not more than once each fiscal year for each party, to inspect, through an independent auditor or another person reasonably acceptable to JV, JV's records for the purpose of verifying the accuracy of JV's calculations of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. JV shall keep records showing the JV Products sold or otherwise disposed of under the licenses granted herein and the calculation of Net Sales in sufficient detail to enable the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] payable to Fujitsu or AMD to be determined. Such records shall be maintained for a period of at least [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] after the date when payment is due by JV. Section 4.7. In the event Fujitsu or AMD, as the case may be, is required to pay a fee to a third party pursuant to any license agreement or amendment to an existing license agreement for sublicensing such third party's intellectual property rights to JV, JV shall be responsible for such fee to the extent such fee is a separate [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] on sales by JV. Where such fee is part of a general lump sum payment, the sublicensing party and JV shall agree upon a mutually acceptable allocation of such payment. 5 8 Section 4.8. The parties have established the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] rates set forth in Sections 4.1 and 4.2 based on what they believe are commercially appropriate arm's-length [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] rates given the anticipated economic performance of JV. If the profits of JV exceed, or fall short of, those reasonably contemplated by the parties, the parties agree to make appropriate adjustments to the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] rates. Article 5. TAXATION. Section 5.1. If required by applicable laws, JV may withhold income tax from any payment to AMD or Fujitsu, as the case may be. In the case of such withholding, JV shall, without delay, pay the withheld tax to the appropriate tax office and furnish Fujitsu or AMD, as the case may be, with appropriate evidence of the tax payment. Section 5.2. JV shall bear all sales, use and other governmental taxes or transaction charges imposed in any jurisdiction which arise in connection with the delivery or use of AMD/Fujitsu Technology, or the manufacture or sale of JV Products by JV hereunder. Section 5.3. The parties agree that the tangible portion of the property delivered and to be delivered by AMD to JV is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and by Fujitsu to JV is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Article 6. INTELLECTUAL PROPERTY RIGHTS. Section 6.1. Except as provided in Section 6.2, all Tripartite IPR hereunder shall be jointly owned by JV, AMD and Fujitsu. None of the parties hereto may file an application for a Patent, with respect to such Tripartite IPR without the prior written consent of the other parties hereto. The parties agree to cooperate in applying for, prosecuting and maintaining any Patents as may be mutually agreed and in protecting such Tripartite IPR, and in each case, to equally divide the expenses thereof. Except for the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] payments required by Sections 4.1 and 4.2, each of Fujitsu, AMD and JV shall have the right to make, have made, use and sell products and processes using the Tripartite IPR and to license (except in case of JV, any such license to be subject to appropriate Board of Directors approval) Tripartite IPR without accounting to the other parties unless otherwise mutually agreed upon in writing, except that neither Fujitsu, AMD nor JV shall assign its ownership interest in any Tripartite IPR to a third party without the prior written consent of the other parties. Section 6.2. Where any technology related to JV Products is developed independently by any party hereto, or by JV jointly with either Fujitsu or AMD, 6 9 without use of the Confidential Information of the other party(ies), in the course of development and design work in accordance with the terms of this Agreement, the ownership and the right to file for a Patent for such technology shall rest solely with the party(ies) developing such technology. All Other IPR and Proprietary Information in such technology shall be owned jointly by the parties, shall be considered Tripartite IPR and shall be subject to the provisions of this Agreement regarding Tripartite IPR. Pursuant to the Technology Cross-License and the Joint Development Agreement and Article 2 of this Agreement, each of Fujitsu, AMD, and JV will grant to the others a license to the IPR covering any such technology developed independently by such party and patented by such party in accordance with this Section 6.2. Article 7. EXCHANGE OF INFORMATION AND CONFIDENTIALITY. Section 7.1. During the term of this Agreement, Fujitsu, AMD and JV shall exchange their Confidential Information relevant to NVMs as necessary (but only to the extent as legally permitted) to enable the parties to cooperate fully in developing NVMs. Section 7.2. Except as expressly authorized among the parties, (including, without limitation, the exercise of the rights granted to a party under this Agreement, the Technology Cross-License and the Joint Development Agreement), each party agrees not to disclose, use or permit the disclosure or use by others of any Confidential Information, unless and to the extent such Confidential Information (i) is not marked or designated in writing as confidential and is provided for a purpose that reasonably contemplates disclosure to or use any others, (ii) or becomes a matter of public knowledge through no action or inaction of the party receiving the Confidential Information, (iii) was in the receiving party's possession before receipt from the party providing such Confidential Information, (iv) is rightfully received by the receiving party from a third party without any duty of confidentiality, (v) is disclosed to a third party by the party providing the Confidential Information without a duty of confidentiality on the third party, (vi) is disclosed by the receiving party despite the exercise of the same degree of care used by the receiving party to safeguard its own similar Confidential Information, but the receiving party shall take all necessary steps to prevent any further disclosure, (vii) is disclosed with the prior written approval of the party providing such Confidential Information or (viii) is independently developed by the receiving party without any use of the other party's Confidential Information. Information shall not be deemed to be available to the general public for the purpose of exclusion (ii) above with respect to each party (x) merely because it is embraced by more general information in the prior possession of recipient or others, or (y) merely because it is expressed in public literature in general terms not specifically in accordance with the Confidential Information. Section 7.3. In furtherance, and not in limitation of the foregoing Section 7.2, each party agrees to do the following with respect to any such Confidential Information: (i) exercise the same degree of care to safeguard the confidentiality of, and prevent the unauthorized use of, such information as that party exercises to safeguard the confidentiality of its own information, (ii) restrict disclosure of such information to those of its employees, agents and sublicensees who have a "need to know", and (iii) instruct and require such employees, agents and sublicensees to maintain the confidentiality of such information and not to use such information except as 7 10 expressly permitted herein. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documentation or other materials. Section 7.4. The foregoing confidentiality obligation shall also apply to the contents of this Agreement. Section 7.5. The obligations under this Article 7 shall not prevent the parties from disclosing the Confidential Information or the terms of this Agreement to any government agency as required by law (provided that the party intending to make such disclosure in such circumstances has given prompt notice to the party providing such Confidential Information prior to making such disclosure so that such party may seek a protective order or other appropriate remedy prior to such disclosure and cooperates fully with such other party in seeking such order or remedy). Section 7.6. The obligations under this Article 7 shall apply with respect to any Confidential Information for a period of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] from the date of disclosure of such Confidential Information to the receiving party, unless, with respect to any particular Confidential Information, the providing party in good faith notifies the receiving party that a longer period shall apply, in which case the obligations under this Article 7 with respect to such Confidential Information shall apply for such longer period. Article 8. RESIDENCE AT JV FACILITY. Fujitsu and/or AMD shall be permitted to have a limited number of engineers and technical personnel reside at JV's facilities at such party's own cost to enhance information exchange among Fujitsu, AMD and JV. The number of engineers, and technical personnel, shall be subject to JV's prior reasonable approval. Any JV IPR obtained or learned by such engineers, and technical personnel, during such period shall be included within the licenses granted under Section 2.3. Article 9. THIRD PARTY CLAIM. Section 9.1. JV shall indemnify and hold harmless AMD, Fujitsu, and their Subsidiaries from any loss or damages (including reasonable attorney's fees) arising from any and all claims or actions brought against JV, Fujitsu or AMD, based upon any JV Product sold by JV. JV shall control the defense of such claims or actions and AMD and Fujitsu shall render reasonable support to JV. Section 9.2. Fujitsu and AMD shall indemnify and hold harmless JV from any loss or damages (including reasonable attorney's fees) arising from any and all claims or actions brought against JV based upon the AMD/Fujitsu Technology as and to the extent hereinafter provided. With respect to AMD/Fujitsu Technology that is owned jointly by AMD and Fujitsu, AMD and Fujitsu shall jointly (but not severally) indemnify JV. With respect to AMD/Fujitsu Technology that is transferred to JV and that is owned solely by either AMD or Fujitsu, such transferring party shall indemnify JV. In the 8 11 event of the joint indemnification, AMD and Fujitsu shall cooperate fully in the defense of such claims or actions and the costs and expenses (including any losses or damages (including reasonable attorney's fees)) shall be shared equally. In the event the indemnity is by either AMD or Fujitsu, such party shall control the defense of such claims or actions. The JV and the other party shall render reasonable support to the party or parties indemnifying JV hereunder. Article 10. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. Section 10.1. Each of the parties hereto represents and warrants to each other party that it has the right, and will continue during the term of this Agreement to have the right, to grant to or for the benefit of the other parties the rights and licenses granted hereunder in accordance with the terms of this Agreement and such grant of rights and licenses does not, and will not during the term of this Agreement, conflict with the rights and obligations of such party under any other license, agreement, contract or other undertaking. Each party shall indemnify, hold harmless and defend the other parties against a breach by such party of this Section 10.1. Section 10.2. Nothing contained in this Agreement shall be construed as: (a) a warranty or representation by any of the parties hereto or its Subsidiaries sublicensed hereunder as to the validity or scope of any JV IPR, Tripartite IPR, Fujitsu IPR or AMD IPR, as the case may be; or (b) conferring upon any party hereto or its Subsidiaries sublicensed hereunder any license, right or privilege under any patents, utility models, design patents, copyrights, mask work rights or trade secrets except the licenses, rights and privileges expressly granted hereunder; or (c) a warranty or representation that any acts licensed or sublicensed hereunder will be free from infringement of patents, utility models, design patents, copyrights, mask work rights or trade secrets other than those under which licenses, rights and privileges have been expressly granted hereunder; or (d) an arrangement to bring or prosecute actions or suits against third parties for infringement or conferring any right to bring or prosecute actions or suits against third parties for infringement; or (e) conferring any right to use in advertising, publicity or otherwise, any trademark, service mark, trade name or their equivalent, or any contraction, abbreviation or simulation thereof, of either party hereto or their Subsidiaries sublicensed hereunder. Section 10.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NONE OF THE PARTIES HERETO MAKES ANY WARRANTIES, WHETHER EXPRESS OR OTHERWISE, CONCERNING ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR 9 12 PURPOSE, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND NONE OF THE PARTIES HERETO SHALL BE RESPONSIBLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT. Article 11. TERM AND TERMINATION. Section 11.1. Term. This Agreement shall become effective as of the Effective Date and, unless and until terminated hereunder, shall continue until the occurrence of a Transitional Event, at which time this Agreement shall terminate. Section 11.2. Termination. Termination of this Agreement may result from the events listed below. Each party agrees to give prompt written notice to the other parties of the happening of any such event. (a) If any party hereto defaults in the performance of any material obligation hereunder, a non-defaulting party may give written notice thereof and the parties shall discuss the problem arising from such default in good faith and seek to resolve such problem. If such default is not corrected or otherwise addressed by the defaulting party to the satisfaction of all of the non-defaulting parties within ninety (90) days after the written notice of such default then a non-defaulting party may, in addition to any other remedies it or they may have, terminate this Agreement by written notice. This Agreement shall terminate on the thirtieth (30th) day after such notice of termination. (b) Any party hereto may terminate this Agreement by giving written notice of termination to the other parties at any time, upon or after: (i) the filing by such other party of a petition in bankruptcy or insolvency; (ii) any adjudication that such other party is bankrupt or insolvent; (iii) the filing by such other party of any legal action or document seeking reorganization, readjustment or arrangement of such other party's business under any law relating to bankruptcy or insolvency; (iv) the appointment of a receiver or bankruptcy trustee for all or substantially all of the property of such other party; (v) the making by such other party of any general assignment for the benefit of creditors; or 10 13 (vi) the institution of any proceedings for the liquidation or winding up of such other party's business or for the termination of its corporate charter, provided, in the event such proceedings are involuntary, the proceedings are not dismissed within ninety (90) days. (c) If at any time during the term of this Agreement, (i) AMD or Fujitsu incurs in one transaction or a series of related transactions a change in ownership of more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of its capital stock, (ii) AMD or Fujitsu consolidates with or merges with or into another corporation, partnership or other entity, whether or not such party is the surviving entity of such transaction, unless immediately after such consolidation or merger, shareholders of such party prior to the transaction continue to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the outstanding shares of stock entitled to vote for the election of directors of such new or surviving entity, or (iii) AMD or Fujitsu sells, assigns or otherwise transfers all or substantially all of the business or assets of such party relating to its semiconductor merchant market business to a third party, any other party may terminate this Agreement upon thirty (30) days' advance written notice to the other parties, provided, in each case, that the terminating party must exercise such right no later than one (1) year after receiving written notice of such transaction from the affected party. (d) In the event that a third party (other than a bank, insurance company or other financial or investment company or institution) acquires greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership of AMD or Fujitsu and either a position on the board of directors or a position of management in such party, where such acquisition of ownership and management position or board position in such party is judged by any other party hereto after careful consideration to be detrimental to such other party, such other party may terminate this Agreement upon thirty (30) days' advance written notice to such party, provided that the terminating party must exercise such right not later than one (1) year after receiving written notice of such transaction from the affected party. (e) AMD or Fujitsu may terminate this Agreement upon thirty (30) days' written advanced notice to the other party and JV where such other party ceases to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the issued and outstanding capital stock of JV. (f) In the event that a change occurs in the management of AMD or Fujitsu as a result of a proxy solicitation contest, which change is judged by any other party after careful consideration to be detrimental to the affairs of JV, either of the other parties may terminate this Agreement upon thirty (30) days' written advance notice to the other parties, provided that the terminating party must exercise such right not later than one (1) year after receiving written notice of such event from the affected party. 11 14 Section 11.3. Effect of Termination. (a) Except as otherwise provided in this Section 11.3, all rights and obligations of the parties hereunder shall cease upon termination or expiration of this Agreement, with the exception of the rights and obligations of the parties under Articles 5, 6, 7, 9, 10, 11 and 12, and Sections 2.3, 4.6, 4.7 and 4.8 which shall survive termination or expiration of this Agreement. (b) Upon termination of this Agreement for whatever reason, (i) all IPR licensed pursuant to this Agreement prior to its termination shall continue in full force and effect, and (ii) JV, Fujitsu and AMD shall (A) jointly own all JV IPR and Tripartite IPR, (B) cooperate (if agreed by AMD and Fujitsu) in applying for, prosecuting and maintaining any Patents, and protecting such IPR developed prior to termination of this Agreement and equally dividing the expenses thereof, and (C) except as otherwise provided in Section 11.3.(c), have the unlimited right to use and to license such JV IPR and Tripartite IPR and the right to make, have made, use, reproduce, modify, distribute, sell, lease or otherwise dispose of any processes and products based upon or incorporating such IPR without restriction or accounting to the other party unless otherwise mutually agreed upon in writing, except that neither Fujitsu nor AMD shall assign its ownership interest in any such IPR to a third party without the prior written consent of the other party. (c) The surviving licenses to the JV pursuant to this Subsection 11.3 shall be subject to the payment of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] by JV to AMD and Fujitsu as may be mutually agreed by the parties at the time of termination, provided that if the parties are unable to mutually agree upon [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] at such time, the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shall be set at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of Net Sales to each party for all JV Products sold by JV for [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] after termination, payable semi-annually in accordance with the provisions of Sections 4.3, 4.5, 4.6 and Article 5 and the surviving licenses to the JV shall hereafter be paid-up and royalty-free. Article 12. MISCELLANEOUS. Section 12.1. Force Majeure. No party shall be liable for failure to perform, in whole or in material part, its obligations under this Agreement if such failure is caused by any event or condition not existing as of the date of this Agreement and not reasonably within the control of the affected party, including, without limitation, by fire, flood, typhoon, earthquake, explosion, strikes, labor troubles or other industrial disturbances, unavoidable accidents, war (declared or undeclared), acts of terrorism, sabotage, embargoes, blockage, acts of Governmental Authorities, riots, insurrections, or any other cause beyond the control of the parties; provided that the affected party promptly notifies the other parties of the occurrence of the event of force majeure and takes all reasonable steps necessary to resume performance of its obligations so interfered with. Section 12.2. Assignment. Neither this Agreement nor any of the rights and obligations created hereunder may be assigned, transferred, pledged, or otherwise encumbered or disposed of, in whole or in part, whether voluntarily or by operation of law, or otherwise, by any party without the prior written consent of the other parties. This Agreement shall inure to the benefit of and be binding upon the parties' permitted successors and assigns. Section 12.3. Notices. All notices and communications required, permitted or made hereunder or in connection herewith shall be in writing and shall be mailed by first class, registered or certified mail (and if overseas, by airmail), postage prepaid, or otherwise delivered by hand or by messenger, or by recognized courier service (with written receipt confirming delivery), addressed: 12 15 (a) If to FUJITSU, to: Mail or Hand Delivery: FUJITSU LIMITED 1015 Kamikodanaka, Nakahara-ku Kawasaki-shi 211, JAPAN Attn:Masaichi Shinoda General Manager Business Development Division Electronic Devices with a copy to: Mail or Hand Delivery: FUJITSU LIMITED Marunouchi Center Bldg., 6-1 Marunouchi 1-chome Chiyoda-ku, Tokyo 100, JAPAN Attn:Gen Iseki General Manager, Legal Division (b) If to AMD, to: Senior Vice President, Operations Advanced Micro Devices, Inc. P.O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Attn: Gene Conner Mail: Mikio Ishimaru, Esq. Director of Technology Law Advanced Micro Devices, Inc., MS 68 P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Hand Delivery: 3625 Peterson Way Santa Clara, CA 95054 U.S.A. 13 16 with a copy to: Mail: Senior Vice President, Operations Advanced Micro Devices, Inc. P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Attn: Gene Conner Hand Delivery: 915 DeGuigne Drive Sunnyvale, CA 94086 U.S.A. (c) If to JV: Mail or Hand Delivery: Fujitsu AMD Semiconductor, Limited 1015 Kamikodanaka Nakahara-Ku Kawasaki 211 Japan Attn: Kimio Yanagida, President with two copies to: Mail or Hand Delivery: FUJITSU LIMITED 1015 Kamikodanaka, Nakahara-ku Kawasaki-shi 211, JAPAN Attn:Masaichi Shinoda General Manager Business Development Division Electronic Devices 14 17 with a copy to: Mail or Hand Delivery: FUJITSU LIMITED Marunouchi Center Bldg., 6-1 Marunouchi 1-chome Chiyoda-ku, Tokyo 100, JAPAN Attn:Gen Iseki General Manager, Legal Division with two copies to: Mail: Mikio Ishimaru, Esq. Director of Technology Law Advanced Micro Devices, Inc., MS 68 P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Hand Delivery: 3625 Peterson Way Santa Clara, CA 95054 U.S.A. with a copy to: Mail: Senior Vice President, Operations Advanced Micro Devices, Inc. P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Attn: Gene Conner Hand Delivery: 915 DeGuigne Drive Sunnyvale, CA 94086 U.S.A. 15 18 Each such notice or other communication shall for all purposes hereunder be treated as effective or as having been given as follows: (i) if delivered in person, when delivered; (ii) if sent by mail or airmail, at the earlier of its receipt or at 5 pm, local time of the recipient, on the seventh day after deposit in a regularly maintained receptacle for the deposition of mail or airmail, as the case may be; and (iii) if sent by recognized courier service, on the date shown in the written confirmation of delivery issued by such delivery service. Either party may change the address and/or addressee(s) to whom notice must be given by giving appropriate written notice at least seven (7) days prior to the date the change becomes effective. Section 12.4. Export Control. Without in any way limiting the provisions of this Agreement, each of the parties hereto agrees that no products, items, commodities or technical data or information obtained from a party hereto nor any direct product of such technical data or information is intended to or shall be exported or reexported, directly or indirectly, to any destination restricted or prohibited by Applicable Law without necessary authorization by the Governmental Authorities, including (without limitation) the Japanese Ministry of International Trade and Industry, the United States Bureau of Export Administration (the "BEA") or other Governmental Authorities of the United States with jurisdiction with respect to export matters. Without limiting the generality of the foregoing, each party hereto agrees that it will not, without authorization from the Office of Export Licensing of the BEA, knowingly export or reexport to a destination outside of the United States General License GTDR technical data or information of United States origin subject to this Agreement, or the direct product thereof, or the product of a plant or major component of a plant that is the direct product thereof, without first providing any applicable export assurances to the exporting party. Section 12.5. Arbitration. (a) Any and all disputes arising under or affecting this Agreement shall be resolved exclusively by confidential arbitration pursuant to the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or such other location agreed between the parties; provided, however, that the arbitrators shall be empowered to hold hearings at other locations within or without Japan. Fujitsu and AMD shall each designate one arbitrator and the two arbitrators so designated shall select the third arbitrator. Arbitration proceedings shall be conducted in English with simultaneous translations into Japanese. The judgment upon award of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction in the United States or Japan, and each of the parties hereto unconditionally submits to the jurisdiction of such court for the purpose of any proceeding seeking such enforcement. Subject only to the provision of Applicable Law, the procedure described in this Section 12.5 shall be the exclusive means of resolving disputes involving AMD and arising under this Agreement. (b) All papers, documents or evidence, whether written or oral, filed with or presented to the panel of arbitrators shall be deemed by the parties and by the arbitrators to be Confidential Information. No party or arbitrator shall disclose in whole or in part to any other person any Confidential Information submitted in connection with the arbitration proceedings, except to the extent reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute. Confidential Information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to outside experts requested by any party's counsel to furnish technical or expert services or to give testimony at the arbitration proceedings, subject, in the case of such experts, to execution of a legally binding written statement that such expert is fully familiar with the terms of this section, that such expert agrees to comply with the confidentiality terms of this section, and that such expert will not use any Confidential Information disclosed to such expert for personal or business advantage. 16 19 Section 12.6. Entire Agreement. This Agreement, the Joint Venture Agreement, the other Associated Agreements (as defined in the Joint Venture Agreement), and the attachments and exhibits hereto and thereto, embody the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding all previous and contemporaneous communications, representations, agreements and understandings, whether written or oral, including without limitation that certain Memorandum of Understanding between Fujitsu and AMD dated July 13, 1992 and the Nondisclosure Agreements. No party has relied upon any representation or warranty of any other party except as expressly set forth herein, in the Joint Venture Agreement and in the Associated Agreements. Section 12.7. Modification. This Agreement may not be modified or amended, in whole or part, except by a writing executed by duty authorized representatives of all parties. Section 12.8. Announcement. The parties may announce the existence of the parties' relationship and this Agreement at a time and in a form to be mutually determined. No party shall unreasonably withhold its consent to a time proposed by any other party. Section 12.9. Severability. If any term or provision of this Agreement shall be determined to be invalid or unenforceable under Applicable Law, such provision shall be deemed severed from this Agreement, and a reasonable valid provision to be mutually agreed upon shall be substituted. In the event that no reasonable valid provision can be so substituted, the remaining provisions of this Agreement shall remain in full force and effect, and shall be construed and interpreted in a manner that corresponds as far as possible with the intentions of the parties as expressed in this Agreement. Section 12.10. No Waiver. Except to the extent that a party hereto may have otherwise agreed in writing, no waiver by that party of any condition of this Agreement or breach by any other party of any of its obligations or representations hereunder shall be deemed to be a waiver of any other condition or subsequent or prior breach of the same or any other obligation or representation by any other party, nor shall any forbearance by the first party to seek a remedy for any noncompliance or breach by any other party be deemed to be a waiver by the first party of its rights and remedies with respect to such noncompliance or breach. 17 20 Section 12.11. Nature of Rights. Each party shall have the rights licensed under this Agreement to any other party's technology and the related IPR when created, developed or invented regardless of whether physically delivered to such party. All rights and licenses granted under or pursuant to this Agreement by a party ("licensor party") to another party ("licensee party") are, for purposes of Section 365(n) of the U.S. Bankruptcy Code (the "Bankruptcy Code"), licenses of "intellectual property" within the scope of Section 101 of the Bankruptcy Code. The parties agree that each licensee party, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The parties further agree that, in the event of the commencement of a bankruptcy or insolvency proceeding by or against the licensor party, each licensee party shall be entitled to a complete duplicate of (and complete access to) any such intellectual property and all embodiments thereof. If not already in the licensee party's possession, such licensee party has the right to immediate delivery of such intellectual property and embodiments upon written request of the licensee party (i) upon any such commencement of bankruptcy proceedings, unless the licensor party or its representative or trustee elects to continue to perform all of its obligations under this Agreement, or (ii) if not delivered under clause (i) above, upon the rejection of this Agreement by or on behalf of the licensor party. Section 12.12. Tangible Property. The parties agree that the tangible portion of the property delivered and to be delivered by AMD to Fujitsu is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and by Fujitsu to AMD is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 12.13. Governing Law. The validity, construction, performance and enforceability of this Agreement shall be governed in all respects by the laws of the State of California, U.S.A. Section 12.14. Language. This Agreement, and the attachments hereto, are in the English language, which language shall be controlling in all respects. Section 12.15. No Agency or Partnership. This Agreement shall not constitute an appointment of any party as the legal representative or agent of any other party, nor shall any party have any right or authority to assume, create or incur in any manner any obligation or other liability of any kind, express or implied, against, in the name or on behalf of, any other party. Nothing herein or in the transactions contemplated by this Agreement shall be construed as, or deemed to be, the formation of a partnership, association, joint venture, or similar entity by or among the parties hereto. Section 12.16. Headings. The section and other headings contained in this Agreement are for convenience of reference only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement. 18 21 Section 12.17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in triplicate by their duly authorized representatives on the date set forth above. ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED /s/ GENE CONNER /s/ HIKOTARO MASUNAGA By: Gene Conner By: Hikotaro Masunaga Title: Senior Vice President, Operations Title: ManagingDirector FUJITSU AMD SEMICONDUCTOR LIMITED /s/ K. YANAGIDA By: KIMO YANAGIDA Title: President 19 22 ATTACHMENT A TO JOINT VENTURE LICENSE AGREEMENT [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 20 23 ATTACHMENT B TO JOINT VENTURE LICENSE AGREEMENT [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 21 24 ATTACHMENT C TO JOINT VENTURE LICENSE AGREEMENT [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 22 25 ATTACHMENT D TO JOINT VENTURE LICENSE AGREEMENT 1. Process Information A. Basic Process Data B. Manufacturing Specifications C. Process Evaluation Data 2. Device Design Information for Each JV Product A. Product Specifications B. Design Data C. Device Evaluation Data 23 EX-10 7 JOINT DEVELOPEMENT AGREEMENT 1 EXHIBIT 10.27(f) JOINT DEVELOPMENT AGREEMENT ################################################################# # Confidential portions of this document have been deleted and # # filed separately with the Securities and Exchange Commission # # pursuant to a request for confidential treatment. # ################################################################# 2 JOINT DEVELOPMENT AGREEMENT Table of Contents INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1 2. GENERAL RULES FOR JOINT DEVELOPMENT . . . . . . . . . . . 2 3. TARGET SCHEDULE FOR JOINT DEVELOPMENT . . . . . . . . . . 3 4. PROCESS DEVELOPMENT . . . . . . . . . . . . . . . . . . . 3 5. PRODUCT DEVELOPMENT . . . . . . . . . . . . . . . . . . . 5 6. DEVELOPMENT COSTS . . . . . . . . . . . . . . . . . . . . 6 7. INTELLECTUAL PROPERTY RIGHTS. . . . . . . . . . . . . . . 6 8. EXCHANGE OF INFORMATION AND CONFIDENTIALITY . . . . . . . 7 9. USE OF PROPRIETARY INFORMATION AND COMMINGLED TECHNOLOGY. . . . . . . . . . . . . . . . . . . . . . . . 8 10. THIRD PARTY CLAIM . . . . . . . . . . . . . . . . . . . . 8 11. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. . . . 8 12. TERM AND TERMINATION. . . . . . . . . . . . . . . . . . . 9 13. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 12 ATTACHMENT A . . . . . . . . . . . . . . . . . . . . . . . . . 17 ATTACHMENT B . . . . . . . . . . . . . . . . . . . . . . . . . 18 ATTACHMENT C . . . . . . . . . . . . . . . . . . . . . . . . . 19
i 3 JOINT DEVELOPMENT AGREEMENT This Joint Development Agreement (this "Agreement"), dated as of March 26, 1993, is between ADVANCED MICRO DEVICES, INC. ("AMD"), a Delaware corporation having its principal office at 901 Thompson Place, Sunnyvale, California 94088-3453, U.S.A. and FUJITSU LIMITED ("Fujitsu"), a Japanese corporation having its registered office at 1015 Kamikodanaka, Nakahara-ku, Kawasaki 211, Japan. INTRODUCTION A. Fujitsu and AMD are entering into a joint venture agreement (the "Joint Venture Agreement") to be effective as therein provided and other related agreements to establish a new Japanese joint venture corporation, Fujitsu AMD Semiconductor Limited ("JV"), to manufacture and supply certain integrated circuits subject to certain regulatory approvals and other conditions precedent. B. Fujitsu and AMD desire to cooperate fully to develop and transfer to the JV certain design and process technologies necessary for JV to manufacture and supply such integrated circuits. ACCORDINGLY, in consideration of the mutual covenants and promises contained herein, the parties agree as follows: Article 1. DEFINITIONS. As used in this Agreement, the following terms shall have the following meanings: Section 1.1.The following words as used herein have the meanings defined in the Technology Cross-License Agreement ("Technology Cross-License") between AMD and Fujitsu dated as of March 1993 (except that, for purposes of this Agreement, the references in Sections 1.9 and 1.25 to "this Agreement" shall mean this Agreement).
Technology Cross- Definition License Section ---------- --------------- "Affiliate" 1.1. "Applicable Law" 1.2. "Confidential Information" 1.4. "EPROM" or "Electrically Programmable Read Only Memory" 1.7. "Flash Memory" 1.8. "Governmental Approvals" 1.9. "Governmental Authority" 1.10.
1 4 "IPR" or "Intellectual Property Rights" 1.12. "Joint Venture License Agreement" 1.15. "Nondisclosure Agreements" 1.21. "NVM" or "Non-Volatile Memory" 1.23. "Other IPR" 1.24. "Patents" 1.25. "Proprietary Information" 1.28. "Subsidiary" 1.33. "Transitional Event" 1.34.
Section 1.2. "Commingled Technology" shall have the meaning given such term in Section 9.1. Section 1.3. "Effective Date" shall mean the later to occur of (a) the date of this Agreement or (b) the date which all required Governmental Approvals have been obtained. Section 1.4. "JV Product" shall mean an NVM designated as a JV Product pursuant to Section 2.1 herein. Section 1.5. "Subject Technology" shall mean any technology developed by Fujitsu and/or AMD in the course of the development and design work conducted hereunder. It is understood by the parties that the Subject Technology initially will consist of NVM eight-inch diameter wafer process technologies with geometries of 0.5- micron and 0.35-micron, and device design data for the JV Products. The major elements of the Subject Technology currently anticipated are set forth in Attachment B hereto. Section 1.6. "Subject Technology IPR" shall mean IPR that covers or protects, or is contained, embodied or incorporated in, the Subject Technology. Article 2. GENERAL RULES FOR JOINT DEVELOPMENT. Section 2.1. Joint Development Committee. Attachment A lists the JV Products to be developed for, and manufactured and sold by, the JV. In order to amend Attachment A to add or delete a JV Product, the parties shall establish a committee consisting of engineering managers from each party (the "Joint Development Committee") who may amend Attachment A prior to the formation of the JV and make amendment recommendations to the board of directors of the JV thereafter. The Joint Development Committee may also amend Attachment B, catalog specifications, and Attachment C, scheduling. The Joint Development Committee shall meet at the request of either party, or in the absence of such request, semi-annually. The Joint Development Committee shall agree unanimously before making any amendments or recommendations as provided above. Section 2.2. Development Teams. In order to develop the Subject Technology, the parties shall establish as soon as practicable after the Effective Date one or more process development teams and device design teams consisting of engineers from each party. Fujitsu and AMD shall each assign a team co-leader for each team. Either party may 2 5 change its team co-leaders from time to time upon thirty (30) days' written notice to the other party. Section 2.3. Cooperative Efforts. The parties shall fully cooperate with each other in performing such development and design work and will jointly conduct such work at the same location to the extent possible to enable Fujitsu and AMD to develop a better understanding of each other's technological culture and methodology. In the event that, during the term of this Agreement, any portion of such work is required to be performed independently by one party, such party shall provide the other party with regular progress reports on the status of such work so that the other party might join in such work and shall inform the other party of all results of such work immediately upon its completion. In the event that development or design work is performed at one party's facility or facilities, the other party may at all reasonable times visit the facility or facilities, observe the development or design work being performed, and bring back to such other party's facilities all information and results obtained in the course of such work. The major responsibilities of device design work for the initial JV Products are specified in Attachment A hereto. Section 2.4. Settlement of Technical Differences. If the Development Teams have a difference of technical opinion in the course of development and design work hereunder, the development teams shall resolve such difference of opinion by mutual agreement with the goal of developing the best Subject Technology and achieving the best productivity of JV Products for the JV. Section 2.5. Personnel Assignments. Fujitsu may assign personnel to Fujitsu Microelectronics, Inc. or other Subsidiaries in the United States, and AMD may assign personnel to its Subsidiaries in Japan, to carry out the activities contemplated by this Agreement. Each party shall cooperate with the other in arranging such assignments. Article 3. TARGET SCHEDULE FOR JOINT DEVELOPMENT. Attachment C hereto contains an initial schedule for the development of Subject Technology (the "Target Schedule"). Fujitsu and AMD agree to use their best efforts to adhere to the Target Schedule. Article 4. PROCESS DEVELOPMENT. Section 4.1. Development Steps for the 0.5 micron Process. The development steps for the Subject Technology related to the 0.5-micron process shall be as follows: (a) The parties shall first compare and evaluate each unit process of both parties' existing 0.5-micron wafer process to assess their applicability to the production of JV Products at JV's facility. (b) The parties shall then establish a target process flow for the 0.5- micron wafer process for JV (the "0.5-micron JV Process") considering the structural requirements of JV Products and, based upon the results of Section 4.1(a) and upon mutual 3 6 discussion, the parties shall decide whether any of the following can be adapted for the 0.5-micron JV process: (i) an existing unit process of either party; (ii) a modified unit process of either party; or (iii) any newly-developed unit process. (c) In the event that (ii) or (iii) of Section 4.1(b) is selected, the parties shall discuss and decide how to perform such modification or development and at which facility the work will be performed (in case of modification, the facility having the original unit process will be selected, unless otherwise agreed by the parties). (d) The parties shall then perform the necessary modifications and developments in accordance with Section 4.1(c). (e) The parties shall then assemble all unit processes selected, modified and developed in accordance with Section 4.1(b) through 4.1(d) into the 0.5-micron JV Process at a mutually-agreed location or locations, conduct a test run with a JV Product or a test chip on the 0.5-micron JV Process, and evaluate the results thereof (the test run will be conducted at the site of the party designated in Attachment A, unless otherwise agreed by the parties). (f) If a test run does not succeed, the relevant process team shall discuss the failure with the relevant device design team, apply the necessary design changes or process adjustments and repeat the test run. (g) Once both parties have confirmed the successful completion of the 0.5-micron JV Process, the parties shall decide which party is responsible for taking the lead in transferring the confirmed Subject Technology to JV, including documentation for each unit process (in the case of Section 4.1(b) (i) or (ii), the lead party will be the party that developed the original unit process, unless otherwise agreed by the parties). A complete set of such confirmed Subject Technology in tangible form shall be kept by each party. Section 4.2. Development Steps for the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] Process. The development steps for the Subject Technology related to the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] process shall be as follows: (a) The parties shall establish a target process flow for the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] wafer process for JV (the "[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] JV Process") considering the structural requirements of JV Products and, based upon mutual discussion, the parties shall decide whether any of the following can be adapted to a corresponding unit process for the [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] JV Process: (i) the then-existing unit process of the 0.5-micron JV Process; (ii) a modified unit process of the 0.5-micron JV Process; (iii) a then-existing unit process of either party; (iv) a modified unit process of either party; or (v) any newly-developed unit process; and 4 7 (b) After Section 4.2(a), the parties shall proceed through Sections 4.1(c) through 4.1(g) mutatis mutandis. Article 5. PRODUCT DEVELOPMENT. Section 5.1. Design Methodology. The parties shall compare and evaluate both parties' existing design tools (e.g., CAD tools) and methodologies to assess their relative effectiveness for jointly designing the JV Products. If the parties agree, they will adopt an appropriate common design tool and methodology for the purpose of jointly designing the JV Products. If necessary, both parties shall jointly modify an existing design tool (including libraries) or develop a new design tool considering the features of the newly-developed 0.5-micron JV Process or [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] JV Process, as the case may be. Section 5.2. Design Interface. The parties shall decide and adopt machine-readable interface formats of design data (circuit data, layout data and test data) for the purpose of transferring the design data to JV and sharing the design results between both parties. Section 5.3. Design Steps of JV Products. The design steps of the JV Products shall be as follows: (a) The parties shall develop the catalog specification of each JV Product. (b) The parties shall develop the architectural features and functional and electrical characteristics of each JV Product. These internal detailed specifications shall be determined by taking into account the performance of the wafer sort tool and reliability assurance tool, customers' requirements, the design and evaluation tool and the final test tool. (c) Based upon such architectural, functional and electrical characteristics, the parties shall generate and verify the circuit and physical layout pattern of the JV Product. (d) Based upon such circuit, the parties shall generate the test specification and the test program conforming with such test specification. (e) The parties shall conduct a test run of the JV Product on the relevant JV Process and evaluate the results thereof. (f) If a test run does not succeed, the relevant device design team shall discuss the failure with the relevant process design team, apply the necessary design changes or process adjustments and repeat the test run. (g) Once both parties have confirmed the successful completion of the JV Product, the parties shall decide which party is responsible for taking the lead in transferring the confirmed design data, including documentation thereof, to JV. A complete 5 8 set of such confirmed design data in tangible form shall be kept by each party. If the lead party is not the party conducting the test run described in Sections 5.3(e) and (f), the lead party shall conduct a test run on its own to ensure its ability to support the contemplated technology transfer to JV. Article 6. DEVELOPMENT COSTS. Each party shall bear all costs incurred by such party in the course of the development and design work contemplated by this Agreement. Article 7. INTELLECTUAL PROPERTY RIGHTS. Section 7.1. Pursuant to the Joint Venture License Agreement to be entered into among Fujitsu, AMD and the JV, each of Fujitsu and AMD will grant to the JV certain licenses to the technology being developed hereunder and previously existing related technology. Section 7.2. Pursuant to the Technology Cross-License, each of Fujitsu and AMD will grant to the other certain licenses to the technology being developed hereunder and previously existing related technology. Section 7.3. Except as provided in Section 7.4 of this Agreement, all Subject Technology IPR hereunder shall be jointly owned by Fujitsu and AMD. Neither party hereto may file an application for a Patent with respect to such Subject Technology IPR without the prior written consent of the other party. The parties agree to cooperate in applying for, prosecuting and maintaining any Patents, as may be mutually agreed and in protecting such Subject Technology IPR, and, in each case, to equally divide the expenses thereof. Each of Fujitsu and AMD shall have the right to make, have made, use and sell products and processes using the Subject Technology IPR and to license such Subject Technology IPR without restriction or accounting to the other party unless otherwise mutually agreed upon in writing, except that neither Fujitsu nor AMD shall assign its ownership interest in any Subject Technology IPR to a third party without the prior written consent of the other party. Section 7.4. Where any technology included in the Subject Technology IPR is developed independently hereunder by either party hereto, without use of the Confidential Information of the other party, in the course of development and design work conducted in accordance with the terms of this Agreement, the ownership and the right to file for a Patent for such technology shall rest solely with the party developing such technology. All Other IPR and Propriety Information in such technology shall be owned jointly by the parties, shall be considered Subject Technology IPR and shall be subject to the provisions of this Agreement regarding jointly owned Subject Technology IPR. Pursuant to the Technology Cross-License and the Joint Venture License, each of Fujitsu and AMD will grant to the other and the JV a license to such IPR covering any such technology developed independently by such party and patented by such party in accordance with this Section 7.4. 6 9 Article 8. EXCHANGE OF INFORMATION AND CONFIDENTIALITY. Section 8.1. During the term of this Agreement, Fujitsu and AMD shall exchange their Confidential Information relevant to NVMs as necessary (but only to the extent legally permitted) to enable the parties to cooperate fully in developing NVMs. Section 8.2. Except as expressly authorized by the other party (including without limitation the exercise of the rights granted to a party under this Agreement, the Technology Cross-License and the Joint Venture License Agreement), each party agrees not to disclose, use or permit the disclosure or use by others of any Confidential Information unless and to the extent such Confidential Information (i) is not marked or designated in writing as confidential and is provided for a purpose that reasonably contemplates disclosure to or use by others, (ii) becomes a matter of public knowledge through no action or inaction of the party receiving the Confidential Information, (iii) was in the receiving party's possession before receipt from the party providing such Confidential Information, (iv) is rightfully received by the receiving party from a third party without any duty of confidentiality, (v) is disclosed to a third party by the party providing the Confidential Information without a duty of confidentiality on the third party, (vi) is disclosed by the receiving party despite the exercise of the same degree of care used by the receiving party to safeguard its own similar Confidential Information, but the receiving party shall take all necessary steps to prevent any further disclosure, (vii) is disclosed with the prior written approval of the party providing such Confidential Information, or (viii) is independently developed by the receiving party without any use of the other party's Confidential Information. Information shall not be deemed to be available to the general public for the purpose of exclusion (ii) above with respect to each party (x) merely because it is embraced by more general information in the prior possession of the receiving party or others, or (y) merely because it is expressed in public literature in general terms not specifically in accordance with the Confidential Information. Section 8.3. In furtherance, and not in limitation of the foregoing Section 8.2, each party agrees to do the following with respect to any such Confidential Information: (i) exercise the same degree of care to safeguard the confidentiality of, and prevent the unauthorized use of, such information as that party exercises to safeguard the confidentiality of its own Confidential Information; (ii) restrict disclosure of such information to those of its employees, agents and sublicensees who have a "need to know"; and (iii) instruct and require such employees, agents and sublicensees to maintain the confidentiality of such information and not to use such information except as expressly permitted herein. Each party further agrees not to remove or destroy any proprietary or confidential legends or markings placed upon any documentation or other materials. Section 8.4. The foregoing confidentiality obligations shall also apply to the contents of this Agreement. Section 8.5. The obligations under this Article 8 shall not prevent the parties from disclosing the Confidential Information or terms of this Agreement to any government agency or body as required by law (provided that the party intending to make such disclosure in such circumstances has given the other party prompt notice prior to making such disclosure so that the other party may seek a protective order or other appropriate 7 10 wremedy prior to such disclosure and cooperates fully with such other party in seeking such order or remedy). Section 8.6. Notwithstanding anything else contained herein, either party may disclose the catalog specifications generated under Section 5.3(a) to its potential customers. Section 8.7. The obligations under this Article 8 shall apply with respect to any Confidential Information for a period of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] from the date of disclosure of such Confidential Information to the receiving party unless, with respect to any particular Confidential Information, the providing party in good faith notifies the receiving party that a longer period shall apply, in which case the obligations under this Article 8 with respect to such Confidential Information shall apply for such longer period. Article 9. USE OF PROPRIETARY INFORMATION AND COMMINGLED TECHNOLOGY. Section 9.1. The parties hereto agree that each party shall have the right to freely use for internal purposes, in accordance with the provisions of Article 8, the Proprietary Information and Other IPR received from the other party. Neither party will knowingly transfer to a third party the distinct and independent Proprietary Information or Other IPR received from the other party, except as necessary to exercise the rights granted to a party under this Agreement, the Technology Cross-License and the Joint Venture Agreement. [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 9.2. Notwithstanding anything else contained herein, Fujitsu and AMD each hereby grants [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Article 10. THIRD PARTY CLAIM. In the event any claim or action is brought against one party based upon information received from the other party or the Subject Technology, the party against whom the claim or action is brought shall defend at its sole expense such claim or action and the other party shall render reasonable support to such party. Article 11. WARRANTIES, LIMITATION ON LIABILITY, AND COVENANTS. Section 11.1. Each party hereto represents and warrants to the other party that it has the right, and will continue during the term of this Agreement to have the right, to grant to or for the benefit of the other party the rights and licenses granted hereunder in accordance with the terms of this Agreement and such grant of rights and licenses does not, and will not during the term of this Agreement, conflict with the rights and obligations of such party under any other license, agreement, contract or other undertaking. Notwithstanding Article 10, each party shall indemnify, hold harmless and defend the other party against a breach by such party of this Section 11.1. Section 11.2. Nothing contained in this Agreement shall be construed as: 8 11 (a) a warranty or representation by any of the parties hereto or its Subsidiaries sublicensed hereunder as to the validity or scope of any IPR, including Subject Technology IPR. (b) conferring upon either party hereto or its Subsidiaries any licenses, right or privilege under any patents, utility models, design patents, copyrights, mask work rights or trade secrets except the licenses, rights and privileges expressly granted hereunder; or (c) a warranty or representation that any acts permitted hereunder will be free from infringement of patents, utility models, design patents, copyrights, mask work rights or trade secrets other than those under which licenses, rights and privileges have been expressly granted hereunder; or (d) an arrangement to bring or prosecute actions or suits against third parties for infringement or conferring any right to bring or prosecute actions or suits against third parties for infringement; or (e) conferring any right to use in advertising, publicity or otherwise, any trademark, service mark, trade name or their equivalent, or any contraction, abbreviation or simulation thereof, of either party hereto or their Subsidiaries sublicensed hereunder. Section 11.3. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, WHETHER EXPRESS OR OTHERWISE, CONCERNING ANY IPR, TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, OR WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, AND NEITHER PARTY SHALL BE RESPONSIBLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING IN ANY WAY OUT OF THIS AGREEMENT OR ANY TECHNOLOGY, PRODUCTS, PROCESSES, DESIGNS, DOCUMENTS OR INFORMATION LICENSED OR OTHERWISE PROVIDED PURSUANT TO THIS AGREEMENT. Article 12. TERM AND TERMINATION. Section 12.1. Term. This Agreement shall become effective as of the Effective Date and, unless and until terminated hereunder, shall continue until the occurrence of a Transitional Event or termination of the Joint Venture License Agreement, at which time this Agreement shall terminate. Section 12.2. Termination. Termination of this Agreement may result from the events listed below. Each party agrees to give prompt written notice to the other party of the happening of any such event. 9 12 (a) In the event that the Joint Venture Agreement does not become effective within one year from the date hereof, either party may terminate this Agreement effective upon written notice to the other party. (b) If any party hereto defaults in the performance of any material obligation hereunder, the non-defaulting party may give written notice thereof and the parties shall discuss the problem arising from such default in good faith and seek to resolve such problem. If such default is not corrected or otherwise addressed by the defaulting party to the satisfaction of the non-defaulting party within ninety (90) days after the written notice of such default, then the non-defaulting party may, in addition to any other remedies it may have, terminate this Agreement by written notice. This Agreement shall terminate on the thirtieth (30th) day after such notice of termination. (c) Each party hereto may terminate this Agreement, by giving written notice of termination to the other party at any time, upon or after: (i) the filing by such other party of a petition in bankruptcy or insolvency; (ii) any adjudication that such other party is bankrupt or insolvent; (iii) the filing by such other party of any legal action or document seeking reorganization, readjustment or arrangement of such other party's business under any law relating to bankruptcy or insolvency; (iv) the appointment of a receiver or bankruptcy trustee for all or substantially all of the property of such other party; (v) the making by such other party of any general assignment for the benefit of creditors; or (vi) the institution of any proceedings for the liquidation or winding up of such other party's business or for the termination of its corporate charter, provided, in the event such proceedings are involuntary, the proceedings are not dismissed within ninety (90) days. (d) If at any time during the term of this Agreement, (i) a party incurs in one transaction or a series of related transactions a change in ownership of more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of its capital stock, (ii) a party consolidates with or merges with or into another corporation, partnership or other entity, whether or not such party is the surviving entity of such transaction, unless immediately after such consolidation or merger shareholders of such party prior to the transaction continue to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the outstanding shares of stock entitled to vote for the election of directors of such new or surviving entity, or (iii) a party sells, assigns or otherwise transfers all or substantially all of the business or assets of such party relating to its semiconductor merchant market business to a third party, the other party may terminate this Agreement upon thirty (30) days' advance written notice to such 10 13 party, provided, in each case, that the terminating party must exercise such right not later than one (1) year after receiving written notice from the other party of such transaction. (e) In the event that a third party (other than a bank, insurance company or other financial or investment company or institution) acquires greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership of either party and either a position on the board of directors or a position of management in such party, where such acquisition of ownership and management position or board position in such party is judged by the other party after a careful consideration to be detrimental to such other party, such other party may terminate this Agreement upon thirty (30) days' advance written notice to such party, provided that the terminating party must exercise such right not later than one (1) year after receiving written notice from the other party of such transaction. (f) Either party hereto may terminate this Agreement upon thirty (30) days' written advance notice to the other party where such party ceases to own more than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the issued and outstanding capital stock of JV. (g) In the event that a change occurs in the management of one party as a result of a proxy solicitation contest, which change is judged by the other party after careful consideration to be detrimental to the affairs of JV, the other party may terminate this Agreement upon thirty (30) days' written advance notice to such party, provided that the terminating party must exercise such right not later than one (1) year after receiving written notice from the other party of such event. Section 12.3. Effect of Termination. (a) Except as provided in this Section 12.3, all rights and obligations of the parties hereunder shall cease upon termination or expiration of this Agreement, with the exception of the rights and obligations of the parties under Articles 6, 8, 9, 10, 11, 12 and 13, and Sections 7.3 and 7.4, which shall survive termination or expiration of this Agreement. (b) Upon termination of this Agreement, Fujitsu and AMD shall (i) continue to jointly own all the jointly-owned Subject Technology IPR, (ii) if agreed to by the parties, cooperate in applying for, prosecuting and maintaining any Patents, and protecting such IPR developed prior to termination of this Agreement and equally dividing the expenses thereof, and (iii) have the unlimited right to use and to license such IPR and the right to make, have made, reproduce, modify, distribute, sell, lease or otherwise dispose of any processes and products based upon or incorporating such IPR without restriction or accounting to the other party unless otherwise mutually agreed upon in writing, except that neither Fujitsu nor AMD shall assign its ownership interest in such IPR to a third party without the prior written consent of the other party. Article 13. MISCELLANEOUS. Section 13.1. Force Majeure. Neither party shall be liable for failure to perform, in whole or in material part, its obligations under this Agreement if such failure is 11 14 caused by any event or condition not existing as of the date of this Agreement and not reasonably within the control of the affected party, including, without limitation, by fire, flood, typhoon, earthquake, explosion, strikes, labor troubles or other industrial disturbances, unavoidable accidents, war (declared or undeclared), acts of terrorism, sabotage, embargoes, blockage, acts of Governmental Authorities, riots, insurrections, or any other cause beyond the control of the parties; provided, that the affected party promptly notifies the other party of the occurrence of the event of force majeure and takes all reasonable steps necessary to resume performance of its obligations so interfered with. Section 13.2. Assignment. Neither this Agreement nor any of the rights and obligations created hereunder may be assigned, transferred, pledged, or otherwise encumbered or disposed of, in whole or in part, whether voluntary or by operation of law, or otherwise, by either party without the prior written consent of the other party. This Agreement shall inure to the benefit of and be binding upon the parties' permitted successors and assigns. Section 13.3. Notices. All notices and communications required, permitted or made hereunder or in connection herewith shall be in writing and shall be mailed by first class, registered or certified air mail, postage prepaid, or otherwise delivered by hand or by messenger, or by recognized courier service (with written receipt confirming delivery), addressed: (a) If to FUJITSU, to: Mail or Hand Delivery: FUJITSU LIMITED 1015 Kamikodanaka, Nakahara-ku Kawasaki-shi 211, JAPAN Attn: Masaichi Shinoda General Manager Business Development Division Electronic Devices with a copy to: Mail or Hand Delivery: FUJITSU LIMITED Marunouchi Center Bldg., 6-1 Marunouchi 1-chome Chiyoda-ku, Tokyo 100, JAPAN Attn: Gen Iseki General Manager, Legal Division (b) If to AMD, to: Mail: 12 15 Senior Vice President, Operations Advanced Micro Devices, Inc. P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Attn: Gene Conner Hand Delivery: 915 DeGuigne Drive Sunnyvale, CA 94086 U.S.A. with a copy to: Mail: Mikio Ishimaru, Esq. Director of Technology Law Advanced Micro Devices, Inc., MS 68 P. O. Box 3453 Sunnyvale, CA 94088-3453 U.S.A. Hand Delivery: 3625 Peterson Way Santa Clara, CA 95054 U.S.A. Each such notice or other communication shall for all purposes hereunder be treated as effective or as having been given as follows: (i) if delivered in person, when delivered; (ii) if sent by airmail, at the earlier of its receipt or at 5 pm, local time of the recipient, on the seventh day after deposit in a regularly maintained receptacle for the deposition of airmail; and (iii) if sent by recognized courier service, on the date shown in the written confirmation of delivery issued by such delivery service. Either party may change the addresss and/or addressee(s) to whom notice must be given by giving appropriate written notice at least seven (7) days prior to the date the change becomes effective. Section 13.4. Export Control. Without in any way limiting the provisions of this Agreement, each of the parties hereto agrees that no products, items, commodities or technical data or information obtained from a party hereto nor any direct product of such technical data or information is intended to or shall be exported or reexported, directly or indirectly, to any destination restricted or prohibited by Applicable Law without necessary authorization by the Governmental Authorities, including (without limitation) the Japanese Ministry of International Trade and Industry, the United States Bureau of Export Administration (the "BEA") or other Governmental Authorities of the United States with jurisdiction with respect to export matters. Without limiting the generality of the foregoing, each party hereto agrees that it will not, without authorization from the 13 16 Office of Export Licensing of the BEA, knowingly export or reexport to a destination outside of the United States General License GTDR technical data or information of United States origin subject to this Agreement, or the direct product thereof, or the product of a plant or major component of a plant that is the direct product thereof, without first providing any applicable export assurances to the exporting party. Section 13.5. Arbitration. (a) Any and all disputes arising under or affecting this Agreement shall be resolved exclusively by confidential arbitration pursuant to the rules of the Japan Commercial Arbitration Association in Tokyo, Japan, or such other location agreed between the parties; provided, however, that the arbitrators shall be empowered to hold hearings at other locations within or without Japan. Each of the parties shall designate one arbitrator and the two arbitrators so designated shall select the third arbitrator. Arbitration proceedings shall be conducted in English with simultaneous translation into Japanese. The judgment upon award of the arbitrators shall be final and binding and may be enforced in any court of competent jurisdiction in the United States or Japan, and each of the parties hereto unconditionally submits to the jurisdiction of such court for the purpose of any proceeding seeking such enforcement. Subject only to the provision of Applicable Law, the procedure described in this Section 13.5 shall be the exclusive means of resolving disputes arising under or affecting this Agreement. (b) All papers, documents or evidence, whether written or oral, filed with or presented to the panel of arbitrators shall be deemed by the parties and by the arbitrators to be Confidential Information. No party or arbitrator shall disclose in whole or in part to any other person any Confidential Information submitted in connection with the arbitration proceedings, except to the extent reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute. Confidential Information may be disclosed (i) to attorneys, (ii) to parties, and (iii) to outside experts requested by either party's counsel to furnish technical or expert services or to give testimony at the arbitration proceedings, subject, in the case of such experts, to execution of a legally binding written statement that such expert is fully familiar with the terms of this section, that such expert agrees to comply with the confidentiality terms of this section, and that such expert will not use any Confidential Information disclosed to such expert for personal or business advantage. Section 13.6. Entire Agreement. This Agreement, the Joint Venture Agreement, the other Associated Agreements (as defined in the Joint Venture Agreement), and the attachments and exhibits hereto and thereto, embody the entire agreement and understanding between the parties with respect to the subject matter hereof, superseding all previous and contemporaneous communications, representations, agreements and understandings, whether written or oral, including without limitation that certain Memorandum of Understanding between Fujitsu and AMD dated July 13, 1992 and the Nondisclosure Agreements. Neither party has relied upon any representation or warranty of the other party except as expressly set forth herein, in the Joint Venture Agreement, and in the Associated Agreements. Section 13.7. Modification. This Agreement may not be modified or amended, in whole or part, except by a writing executed by duly authorized representatives of both parties. 14 17 Section 13.8. Announcement. The parties may announce the existence of the parties' relationship and this Agreement at a time and in a form to be mutually determined. Neither party shall unreasonably withhold its consent to a time proposed by the other party. Section 13.9. Severability. If any term or provision of this Agreement shall be determined to be invalid or unenforceable under Applicable Law, such provision shall be deemed severed from this Agreement, and a reasonable valid provision to be mutually agreed upon shall be substituted. In the event that no reasonable valid provision can be so substituted, the remaining provisions of this Agreement shall remain in full force and effect, and shall be construed and interpreted in a manner that corresponds as far as possible with the intentions of the parties as expressed in this Agreement. Section 13.10. No Waiver. Except to the extent that a party hereto may have otherwise agreed in writing, no waiver by that party of any condition of this Agreement or breach by the other party of any of its obligations or representations hereunder shall be deemed to be a waiver of any other condition or subsequent or prior breach of the same or any other obligation or representation by the other party, nor shall any forbearance by the first party to seek a remedy for any noncompliance or breach by the other party be deemed to be a waiver by the first party of its rights and remedies with respect to such noncompliance or breach. Section 13.11. Governing Law. The validity, construction, performance and enforceability of this Agreement shall be governed in all respects by their laws of the State of California, U.S.A. Section 13.12. Nature of Rights. Each party shall have the rights licensed under this Agreement to the other party's technology and related IPR when created, developed or invented, regardless of whether physically delivered to such party. All rights and licenses granted under or pursuant to this Agreement by a party ("licensor party") to the other party ("licensee party") are, for purposes of Section 365(n) of the U.S. Bankruptcy Code (the "Bankruptcy Code"), licenses of "intellectual property" within the scope of Section 101 of the Bankruptcy Code. The parties agree that the licensee party, as a licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Bankruptcy Code. The parties further agree that, in the event of the commencement of a bankruptcy or insolvency proceeding by or against the licensor party, the licensee party shall be entitled to a complete duplicate of (and complete access to) any such intellectual property and all embodiments thereof. If not already in the licensee party's possession, the licensee party has the right to immediate delivery of such intellectual property and embodiments upon written request of the licensee party (i) upon any such commencement of bankruptcy proceedings, unless the licensor party or its representative or trustee elects to continue to perform all of its obligations under this Agreement, or (ii) if not delivered under clause (i) above, upon the rejection of this Agreement by or on behalf of the licensor party. Section 13.13. Tangible Property. The parties agree that the tangible portion of the property delivered and to be delivered by AMD to Fujitsu is valued at [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] and by Fujitsu to AMD is valued at 15 18 [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Section 13.14. Language. This Agreement and the attachments hereto are in the English language, which language shall be controlling in all respects. Section 13.15. No Agency or Partnership. This Agreement shall not constitute an appointment of either party as the legal representative or agent of the other party, nor shall either party have any right or authority to assume, create or incur in any manner any obligation or other liability of any kind, express or implied, against, in the name or on behalf of, the other party. Nothing herein or in the transactions contemplated by this Agreement shall be construed as, or deemed to be, the formation of a partnership, association, joint venture or similar entity by or among the parties hereto. Section 13.16. Headings. The section and other headings contained in this Agreement are for convenience of reference only and shall not be deemed to be a part of this Agreement or to affect the meaning or interpretation of this Agreement. Section 13.17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives on the date set forth above. ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED /s/ GENE CONNER /s/ HIKOTARO MASUNAGA - - ----------------------------- -------------------------- By: Gene Conner By: Hikotaro Masunaga Title: Senior Vice President, Title: Managing Director Operations 16 19 ATTACHMENT A TO JOINT DEVELOPMENT AGREEMENT [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 17 20 ATTACHMENT B TO JOINT DEVELOPMENT AGREEMENT Major Items of Subject Technology 1. Process Information A. Basic Process Data a) Design rule b) Transistor parameters c) Process parameters d) Mask sequence, etc. B. Manufacturing Specifications a) Process flow b) Process conditions for each unit process, etc. C. Process Evaluation Data a) Reliability data on interconnection materials, etc. 2. Device Design Information for Each JV Product A. Product Specifications a) Catalog specification b) Device full specification (internal specification) c) Architectural information B. Design Data a) Circuits diagrams b) Transistor-level circuits c) Mask layout data d) Mask layout data supplemental information e) Test specification (wafer sort) f) Test program (wafer sort) C. Device Evaluation Data a) Functional test results of samples b) Electrical characteristics of samples c) Reliability data of samples d) Control parameters and their tolerance 18 21 ATTACHMENT C TO JOINT DEVELOPMENT AGREEMENT [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 19 -----END PRIVACY-ENHANCED MESSAGE-----