4. ROYALTY PAYMENTS BY AMD
4.1. AMD agrees to pay INTEL a royalty on the Net Revenue from sales and
other dispositions of Royalty-Bearing Units as a percentage of such
Net Revenue according to the following schedule:
Disposition Date of Royalty-Bearing Unit Royalty Rate
---------------------------------------- ------------
***** *****%
***** *****%
***** *****%
***** *****%
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
- 7 -
<PAGE>
INTEL & AMD CONFIDENTIAL
------------------------
4.2. Intel represents that for the term of this Agreement, *****. The
parties agree that in no event shall Intel's performance under the
terms of this provision or Intel's breach of this representation be
a cause of legal action or termination for material breach.
4.3. Within ***** (*****) days of the end of each calendar quarter, AMD
shall pay the full amount of royalties due with respect to such
quarter to Intel by wire transfer for the account of Intel to *****,
or such other account as Intel may indicate from time to time. Along
with each such payment, AMD shall deliver to Intel a detailed
written royalty statement, in a form reasonably acceptable to Intel,
which shows the sum of the ***** each allowed deduction applied by
AMD to arrive at the ***** sold or otherwise disposed of, the
royalty rate in effect, and the total royalty due to Intel. All
royalty notices and reports shall be delivered to Intel at the
following address, until such address is changed by notice from
Intel:
Intel Corp
2111 NE 25th Ave
Hillsboro, OR 97124
MS JF3-149
4.4. All payments shall be made free and clear without deduction for any
and all present and future taxes imposed by any taxing authority. In
the event that AMD is prohibited by law from making such payments
unless such deductions are made or withheld therefrom, then AMD
shall pay such additional amounts as are necessary in order that the
net amounts received by INTEL, after such deduction or withholding,
equal the amounts which would have been received if such deduction
or withholding had not occurred. AMD shall promptly furnish INTEL
with a copy of an official tax receipt or other appropriate evidence
of any taxes imposed on payments made under this Agreement,
including taxes on any additional amounts paid. In cases other than
taxes referred to above including but not limited to sales and use
taxes, stamp taxes, value added taxes, property taxes and other
taxes or duties imposed by any taxing authority on or with respect
to the Agreement, the costs of such taxes or duties shall be borne
by AMD. In the event that such taxes or duties are legally imposed
initially on INTEL or INTEL is later assessed by any taxing
authority, then INTEL will be promptly reimbursed by AMD for such
taxes or duties together with any penalties, fines and interest
thereon, except for interest, fines and/or penalties assessed due to
the negligence, failure or fault of INTEL which interest, fines
and/or penalties remain the sole obligation of INTEL. This clause
shall survive the termination of the Agreement. Notwithstanding the
foregoing, AMD shall not be responsible for taxes on or measured by
Intel's net income.
4.5. INTEL agrees to make every good faith effort to notify AMD's tax
department within ten (10) days of any audit, notice, assessment or
other action affecting sales, use, stamp, value added, property or
other taxes to be paid directly or indirectly by AMD. INTEL grants
AMD the right to pursue a separate action against any governmental
unit that asserts such taxes against INTEL and INTEL agrees to
cooperate in a reasonable manner with AMD for the purpose of
minimizing taxes, that pursuant to this section are to be paid
directly or indirectly by AMD.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
- 8 -
<PAGE>
INTEL & AMD CONFIDENTIAL
------------------------
4.6. AMD agrees that any payments required under the terms of this
Agreement which are not paid when due will accrue interest at the
***** rate established by ***** (on the first business day after any
such payment is due), where such interest shall accrue starting
***** (*****) days after the due date as established by this
Agreement. The right to collect interest on such late payments shall
be in addition to any other rights that INTEL may have herein.
4.7. AMD covenants that it will maintain adequate accounting records of
all production, sales, leases or other dispositions of ***** for
purposes of audit sufficient to permit a reasonable confirmation of
AMD's compliance with its royalty obligations herein for a period of
three (3) years after sale or other disposition of each *****. The
foregoing information shall be used solely for audit purposes.
4.8. The parties agree that INTEL shall have the right to conduct audits
of AMD for the purpose of determining that the terms of this
Agreement are being met. Such audits shall be held at any reasonable
time during business hours but no more than once in each calendar
year. An independent certified public accounting firm selected and
paid by INTEL and reasonably satisfactory to AMD shall conduct such
audits. The purpose of such audits shall be to verify that the terms
of this Agreement are being met, including the royalty statements
and payments provided herein. AMD agrees to provide such accounting
firm with reasonable access to accounting records and information
requested during an audit. The information will be made available to
the accounting firm under conditions of confidentiality and it will
report to INTEL and to AMD only whether the terms of this Agreement
are being met, including without limitation that payments have been
properly reported on and paid or, if not, the amount of any
overpayment or underpayment. This provision will survive the last
payment of a royalty under this Agreement for a period of three (3)
years. Should the audit discover any errors or omissions by AMD
resulting in an underpayment of more than five percent (5%) of the
amount due with respect to any reporting period, AMD shall reimburse
Intel for the full costs of such audit.
4.9. The parties hereby agree that the above royalty rates are a
reasonable compromise for ease of accounting and administration
based on the fact that neither party wishes to keep strict records
of the Intel Patents that each Royalty-Bearing Unit or the
manufacturing processes therefor infringes based on AMD's constantly
changing product mix, manufacturing technology and the likelihood
that Intel will receive new patents covering both such products and
processes during the term of this Agreement.
Bookmarks