AMD 2006 Annual Report Download - page 195

EXECUTION VERSION
5.12 In consideration for the licenses granted by IBM to AMD in and to eDRAM Technology and in addition to any other amounts payable hereunder, AMD
shall pay to IBM amounts as follows (a) *** on or before December 15, 2006, (b) *** dollars (US***) on or before January 15, 2007, (c) *** dollars
(US$***) on or before April 15, 2007, and (d) two million five hundred thousand dollars (US***) on or before July 15, 2007; each payment when made
shall be non-refundable and irrevocable. This Agreement shall serve as an invoice for such payments. Section 5.2 and the payment procedures of
Section 5.4 will apply to all such payments.
5.13 In the event of a termination pursuant to Section 12.8, AMD agrees to pay IBM a royalty of *** percent (***%) of the Net Selling Price for each eDRAM
Licensed Product that embodies eDRAM Technology developed under this Agreement and is provided to, or purchased by, a Third Party if the total of
such Net Selling Price is in excess of *** dollars ($***) of cumulative revenue for all such eDRAM Licensed Products. Once the total cumulative royalty
received by IBM pursuant to this Section 5.13 equals *** dollars (US***), AMD shall owe no further royalties pursuant to this Section 5.13. Payments
made under this Section 5.13 when made shall be non-refundable and irrevocable. Section 5.2, the payment procedures of Section 5.4, and the audit
provisions of Section 5.5 will apply to all such royalty payments.
SECTION 6 – INSURANCE, RESPONSIBILITY FOR RESULTS AND WARRANTIES
6.1 Although the Parties will use commercially reasonable efforts in performing the Process Development Projects, the Parties acknowledge that the results of
the development work to be performed are uncertain and cannot be guaranteed by any Party. The risk of success or failure of the Process Development
Projects shall be shared by all the Parties equally. If a Party has exerted such efforts in the performance of its responsibilities under a Process Development
Project, the failure to achieve performance objectives or schedules within a Process Development Project shall not constitute a breach of this Agreement.
6.2 All items furnished by a Party to the Process Development Projects will be produced or provided by said Party in the same manner as it produces or
provides such items for its own use and will be furnished on an “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, including, without limitation,
i) ANY WARRANTY THAT THE SPECIFIC RESULTS WILL BE FREE OF THIRD PARTY CLAIMS OF INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADE SECRET, OR MASK WORK RIGHTS and ii) ANY IMPLIED WARRANTIES OR TERMS OF MERCHANTABILITY AND
FITNESS OR USE FOR A PARTICULAR PURPOSE.
6.3 Each Party shall maintain for the benefit of each of the others, comprehensive general liability insurance of not less than fifteen million dollars
($15,000,000) per occurrence which covers bodily injury (including death) and property damage (including, to the extent such insurance is reasonably
available therefor, environmental damage), and which applies to any such liability the Party may have under this Agreement. Purchase and maintenance of
such insurance shall in no way be interpreted as relieving any Party of any of its responsibilities hereunder, and each Party may carry, at its expense, such
additional insurance amounts and coverage as it deems necessary. In no event shall any such insurance be cancelled without prior written notice by the
insured Party’s insurance carrier to the other Party.
***Confidential Treatment Requested.
Third Amendment and Restatement of “S” Process Development Agreement between AMD and IBM
IBM - AMD Confidential Page 27 of 90
Source: ADVANCED MICRO DEVIC, 10-K, March 01, 2007