Exhibit 10.3
EXECUTION VERSION
AMD AND BROADCOM CONFIDENTIAL
IP CORE LICENSE
AGREEMENT
THIS IP CORE LICENSE
AGREEMENT (this “
Agreement ”), effective as of the Effective Date, is
by and between A DVANCED M ICRO D EVICES , I NC ., a
corporation organized under the laws of Delaware and having its
corporate head office located at One AMD Place, Sunnyvale, CA 94088
(“ AMD ”) and B ROADCOM C ORPORATION , a corporation organized under the laws of
California and having its principal place of business at 5300
California Ave., Irvine, CA 92617 (“ Broadcom
”).
W I T N E S S E T
H:
WHEREAS , Broadcom, AMD and Broadcom International
Limited, a Cayman Islands entity, have entered into that certain
Asset Purchase Agreement dated August 25, 2008 (“
APA ”), pursuant to which Broadcom purchased and
assumed, and AMD sold, transferred and assigned to Broadcom and
Broadcom International Limited, certain assets and liabilities of
the Business;
WHEREAS , AMD, among other things, designs, develops and
markets certain advanced graphics, video and multimedia processors
and licenses graphics core designs, and related software, that are
retained by AMD and that are not otherwise licensed to Broadcom
under the terms of the IP Cross License;
WHEREAS , Broadcom desires to license such AMD graphics
cores and software technology for use within the Broadcom Field,
and AMD is willing to license such technology to Broadcom, on the
terms and conditions set forth in this Agreement;
NOW THEREFORE
, in consideration of the mutual
promises of the parties, and of good and valuable consideration, it
is agreed by and between the parties as follows:
1.1 Definitions . For the
purpose of this Agreement the following capitalized terms are
defined in this Section 1.1 and shall have the meaning
specified herein. Other terms that are capitalized but not
specifically defined in this Section 1.1 or in the body of the
Agreement shall have the meaning set forth in the APA or the IP
Cross License.
(a) “AMD Intellectual
Property Rights” means the Intellectual Property Rights
(other than trademarks) owned or Licensable by AMD or any of its
Affiliates, that are not included in the Purchased Intellectual
Property Rights, and that cover any of the AMD Technology.
“AMD Intellectual Property Rights” do not include any
of AMD’s Intellectual Property Rights in or to its
semiconductor manufacturing Technology.
(b) “AMD Exclusive
Field” means the design, development, distribution,
marketing, manufacture, use, import, license and/or sale of any IP
core, processor, integrated circuit or chipset, and Software
operating thereon or in connection therewith, to the extent that
any such IP core, processor, integrated circuit, chipset or
Software (i) operates as [****] for use in [****];
(ii) (A) is able to execute the object code of any AMD
Processor, (B) substantially utilizes the instruction set of
any AMD
1
[****] = Certain confidential information
contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. Confidential treatment has been requested with respect to
the omitted portions.
EXECUTION VERSION
AMD AND BROADCOM CONFIDENTIAL
Processor, or (C) has a
programmer’s model that is substantially compatible with the
programmer’s model of any AMD Processor. Notwithstanding the
foregoing, the “AMD Exclusive Field” does not include
the design, development, distribution, marketing, manufacture, use,
import, license and/or sale of any of the following:
(1) Current Business Products, Past Products or Roadmap
Products, (2) the other products described in the
“Broadcom Exclusive Field” definition in the IP Cross
License, or (3) products for use as [****].
(c) “AMD Technology
” means the Technology expressly identified on Exhibit
A , including the Licensed Cores, the GPG Software and the
Licensed Software.
(d) “Broadcom Owned
Improvements ” means the Improvements made by or for
Broadcom or its Subsidiaries to the AMD Technology.
(e) “Broadcom
Field” means all fields other than the AMD Exclusive
Field, except that with regard to products for use as [****], the
“Broadcom Exclusive Field” shall include only such
[****] that are derived through the process of embedding the
applicable Licensed Core into Broadcom Products (as defined in
Section 3.3 below) designed and marketed for purposes other
than for inclusion in [****], but that may thereafter be sold for
use in [****] by altering the input/output functionality of such
Broadcom Product without other further changes to customize such
Broadcom Products for use in [****].
(f) “Confidential
Information ” means any and all technical and
non-technical information a party provides to another party
hereunder that is marked or otherwise identified at the time of
disclosure as confidential or proprietary or is material that
should be readily recognized as confidential by the recipient,
including trade secrets, know-how, firmware, designs, schematics,
techniques, software code, technical documentation, specifications,
plans or any other information relating to any research project,
work in process, future development, scientific, engineering,
manufacturing, marketing or business plan or financial or personnel
matter relating to a party, its present or future products, sales,
suppliers, customers, employees, investors or business, whether in
written, oral, graphic or electronic form. All Broadcom Owned
Improvements shall be the Confidential Information of Broadcom. All
AMD Technology and Improvements to AMD Technology (other than
Broadcom Owned Improvements) shall be the Confidential Information
of AMD.
(g) “Derivative ”
means a modified version of a Licensed Core.
(h) “Effective
Date” shall be the same date as the Closing
Date.
2
[****] = Certain confidential information
contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. Confidential treatment has been requested with respect to
the omitted portions.
EXECUTION VERSION
AMD AND BROADCOM CONFIDENTIAL
(i) “First Effective Filing
Date” means the earliest effective filing date in the
particular country for any Patent or any application for any
Patent. By way of example, it is understood that the First
Effective Filing Date for a United States Patent is the earlier of
(a) the actual filing date of the United States Patent
application which issued into such Patent, (b) the priority
date under 35 U.S.C. § 119 for such Patent, or (c) the
priority date under 35 U.S.C. § 120 for such
Patent.
(j) “GPG Software
” means the AMD Technology described as a
“[****]” in Exhibit A .
(k) “Improvements
” means any improvements, enhancements, discoveries,
developments, inventions, modifications or derivative works,
whether or not patentable.
(l) “IP Cross License
” means the certain Intellectual Property Cross License
Agreement between the parties of even date herewith.
(m) “Licensable ”
means that, as of the Effective Date, AMD or any of its Affiliates
has the right to grant to Broadcom a license or other rights within
the scope of the rights granted to Broadcom under this Agreement,
subject to the scope of permissible sublicense rights granted to
AMD, without such grant (a) resulting in any breach or other
violation of any obligation of AMD or any of its Affiliates to any
Third Party (who is not an AMD Affiliate), or (b) resulting in
any payment obligations of AMD to any Third Party (who is not an
AMD Affiliate).
(n) “Licensed Core
” means each AMD graphics processor core specified in
Exhibit A , including (i) all RTL with respect thereto
and all Licensed Software and GPG Software described in Exhibit A
referencing such Licensed Cores, (ii) the Improvements to the
[****] to complete integration for the [****] product (each
according to AMD’s current classifications) thereto that AMD
provides to Broadcom under the [****] support statement of work to
the Transition Services Agreement, and (iii) the deliverables
with respect to the [****] core (formerly known as the [****] core)
that AMD provides to Broadcom pursuant to a letter agreement among
the parties with respect to such deliverables, dated on or about
the signing date of the APA.
(o) “Licensed Software
” means the driver code, sample code, tools, software
development kits and related documentation described in Exhibit
A, but not including the GPG Software.
(p) “Open Source
Software ” has the meaning ascribed to it in the APA;
provided, however, that Open Source Software shall, for purposes of
this Agreement, exclude the AMD Technology, Purchased Technology
and Retained Technology.
(q) “Third Party
” means any person or entity other than AMD or Broadcom or
any Subsidiary of AMD or Broadcom.
3
[****] = Certain confidential information
contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. Confidential treatment has been requested with respect to
the omitted portions.
EXECUTION VERSION
AMD AND BROADCOM CONFIDENTIAL
(r) “Third Party
IP” means a claim of a patent owned by a Third Party who
is not an AMD Affiliate and not Licensable by AMD or any of its
Affiliates, to the extent that infringement of such claim cannot be
avoided in remaining compliant with any standards issued by any
public or private standards body, including optional
implementations thereof, including all standards issued,
promulgated or maintained by the Khronos Group (including Open VG
1.0, Open GL-ES 2.0 & Open GL-ES 1.1) and Adobe
Flash.
(s) “Transition Services
Agreement” means the certain Transition Services
Agreement between the parties of even date herewith.
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2.
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DELIVERY,
RESPONSIBILITIES
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2.1 Delivery of AMD
Technology . AMD shall deliver the AMD Technology pursuant to
the delivery terms set forth in the APA or the Transition Services
Agreement, as applicable.
2.2 Integration. Except as
otherwise agreed upon by the parties in writing in a statement of
work to the Transition Services Agreement, Broadcom shall be solely
responsible for porting and integrating the Licensed Core into a
Broadcom Product and for the manufacture and testing of the
Broadcom Products.
2.3 Support and Maintenance .
AMD will provide certain support and maintenance services to
Broadcom for the AMD Technology pursuant to a written statement of
work to the Transition Services Agreement, which will also sets
forth the fees and terms for such services.
3.1 Licenses to Broadcom .
Subject to the terms and conditions of this Agreement, AMD and its
Affiliates hereby grant to Broadcom and its Subsidiaries, under the
AMD Intellectual Property Rights and in and to the AMD Technology,
a perpetual, irrevocable, non-exclusive, worldwide, fully-paid,
royalty-free, non-transferable (except for certain assignments as
provided in Section 10.3 (Assignment)), right and license
solely in the Broadcom Field and without right of sublicense except
as set forth in Section 3.2:
(a) to design, develop, use, make,
have made, import, export, support, and maintain:
i. any Licensed Core or Derivative
solely for inclusion in Broadcom Products; but only to the extent
of such items and not to any new or additional functionality in
such Licensed Core or Derivative (other than Technology which
Broadcom is permitted to use or develop pursuant to the IP Cross
License) or to the remainder of any device or product in which such
items may be incorporated; or
4
[****] = Certain confidential information
contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. Confidential treatment has been requested with respect to
the omitted portions.
EXECUTION VERSION
AMD AND BROADCOM CONFIDENTIAL
ii. any combination of the items
described in clause (i) with each other or with new or
additional technology, but only to the extent of the items
described in clause (i) and not to any new or additional
functionality added to such item (other than Technology which
Broadcom is permitted to use or develop pursuant to the IP Cross
License) or to the remainder of any device or product in which such
items may be incorporated;
(b) to import, offer to sell, and
sell Broadcom Products to the extent that such Broadcom Products
contain the elements permitted pursuant to subsection
(a) above; and
(c) under the AMD Intellectual
Property Rights other than Patents, to modify and make (or have
made) derivative works of the Licensed Software and GPG Software
solely for use in connection with or as incorporated in Broadcom
Products;
(d) to reproduce and distribute
(through multiple tiers of distribution) the Licensed Software and
the GPG Software, and any Improvements of the foregoing, but solely
for use in connection with or as incorporated in Broadcom Products,
and, with respect to the GPG Software, solely in machine-executable
object code form; with the foregoing not to be interpreted as
limiting the licenses granted by AMD or its Affiliates hereunder
under any Patents in the AMD Intellectual Property Rights to
distribute the Licensed Software, the GPG Software, or any
Improvements to either of the foregoing, as permitted under this
Section 3.1, nor to limit Broadcom or its Subsidiaries’
right to import, offer to sell, or sell Broadcom Products;
and
(e) The “have made”
rights refer only to third party manufacturers or other service
providers solely for purposes of having products designed or made
on Broadcom’s or its Subsidiaries’ behalf and not to
design or make products of their own design or products made based
upon the designs of Third Parties.
(f) Notwithstanding any other
provision in this Agreement, in no event may Broadcom or any of its
Subsidiaries or sublicensees (A) combine or incorporate any
AMD Technology or any Improvement to AMD Technology with any Open
Source Software, or (B) intermingle or bundle any AMD
Technology or Improvements to AMD Technology with Open Source
Software, or (C) link Open Source Software or any libraries or
routines that constitute Open Source Software or contains elements
that previously used or were linked to Open Source Software or any
libraries or routines that constitute Open Source Software, with
AMD Technology or Improvements to AMD Technology; in each instance
in a manner that would require the disclosure or distribution of
the Source Code of the AMD Technology or Improvements to the AMD
Technology. Further, Broadcom shall not combine or integrate the
Licensed Software with any Open Source Software in such a way to
subject the Licensed Software or GPG Software to Open Source
Software terms in a manner that would require the disclosure or
distribution of the Source Code of the AMD Technology or
Improvements to the AMD Technology, without the written
authorization of AMD.
5
[****] = Certain confidential information
contained in this document, marked by brackets, has been omitted
and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. Confidential treatment has been requested with respect to
the omitted portions.
EXECUTION VERSION
AMD AND BROADCOM CONFIDENTIAL
(g) Broadcom shall not use or hire
others to use or analyze any AMD Technology that is not otherwise
publicly available for the purposes of determining if any features,
functions or processes provided by the AMD Technology are covered
by any patents or patent applications owned by Broadcom and then
use that analysis to assert patent infringement claims against
AMD.
3.2 Use of Third Parties
.
(a) Subject to the terms and
conditions of this Agreement, Broadcom and, its Subsidiaries may
utilize third-party contractors ( “Contractors
”) in connection with its exercise of license rights under
Section 3.1; provided that the use of AMD Technology by such
Contractors is solely to support Broadcom or its Subsidiaries or
sublicensees in connection with Broadcom’s or its
Subsidiaries’ rights under this Agreement and in strict
compliance with the terms of this Agreement.
(b) If any third party that received
deliverables or AMD Confidential Information from Broadcom pursuant
to this Agreement breaches the obligations imposed on Broadcom
under this Agreement with respect to such deliverables or AMD
Confidential Information, Broadcom agrees to take all reasonable
actions to cure such breach. If Broadcom is unable to cure such
breach within ten (10) Business Days after Broadcom receives
written notice of such breach from AMD, then Broadcom shall
terminate the third party’s right to use and possess such AMD
Confidentia