AMD 2006 Annual Report Download - page 213

EXECUTION VERSION
having the voting power of such Party’s then outstanding securities ordinarily (and apart from rights accruing in special circumstances) having the right to
vote in the election of directors, as a result of a tender or exchange offer, open market purchases, privately negotiated purchases, or otherwise, only if such
person and its Subsidiaries exceeded ten billion US dollars in revenue from the sale of microprocessor Semiconductor Products in calendar year 2001; or
(ii) fifty percent (50%) or more of voting securities having the voting power of such Party’s then outstanding securities ordinarily (and apart from rights
accruing in special circumstances) having the right to vote in the election of directors, as a result of a tender or exchange offer, open market purchases,
privately negotiated purchases, or otherwise.
12.4 If either Party to this Agreement fails to perform or violates any material obligation of this Agreement, then, upon thirty (30) days written notice to the
breaching Party specifying such failure or violation (the “Default Notice”), the non-breaching Party may terminate this Agreement as to the breaching
Party, without liability, unless:
The failure or violation specified in the Default Notice has been cured within a thirty (30) day period; or
The failure or violation reasonably requires more than thirty (30) days to correct (specifically excluding any failure to pay money), and the breaching Party
has begun substantial corrective action to remedy the failure or violation within such thirty (30) day period and diligently pursues such action, in which
event, termination shall not be effective unless ninety (90) days has expired from the date of the Default Notice without such corrective action being
completed and the failure or violation remedied.
12.5 Contingencies.
(i) Intentionally left blank.
(ii) Additionally, the Parties acknowledge that capital purchases necessary for the continued development of the Process Development Projects past
December 31, 2008 are conditioned upon the receipt of IBM corporate management and Board of Directors approval. If such approvals are not
received by September 30, 2007, either Party shall have the right to terminate this Agreement effective December 31, 2008 without liability to the
non-terminating Party, provided, however, that if such approvals are received after September 30, 2007, but prior to either Party’s exercise of its
above right to terminate, the above right to terminate shall lapse. The survival provision of Section 12.2 (including the licenses set forth in Sections
8.9 – 8.12 shall apply to any such termination, provided however that no payments shall be due by AMD under Section 5.8 for such licenses.
12.6 Notwithstanding any provision to the contrary elsewhere in this Agreement, upon termination of this Agreement pursuant to Sections 12.3 or 12.4, the
non-breaching Party shall have the right to terminate all licenses and disclosure rights granted to the breaching Party pursuant to Sections 7, 8, 9, 10 and
11. If such licenses are terminated, the breaching Party shall immediately return to the non-breaching Party, or destroy, any
Third Amendment and Restatement of “S” Process Development Agreement between AMD and IBM
IBM - AMD Confidential Page 45 of 90
Source: ADVANCED MICRO DEVIC, 10-K, March 01, 2007