Amendment No. 1
Process Technology License Agreement
Cypress Semiconductor Corporation
SkyWater Technology Foundry, Inc. (f/k/a Cypress Semiconductor (Minnesota) Inc.)
This Amendment Number 1 (Amendment) to the Process Technology License Agreement by and between Cypress Semiconductor Corporation (Licensor) and SkyWater Technology Foundry, Inc. (f/k/a/ Cypress Semiconductor (Minnesota) Inc.) (Licensee), dated March 1, 2017 (Agreement) will become effective on the Amendment Effective Date, defined below.
Background: The parties wish to make certain modifications to the Agreement to help ensure continuity of supply by Licensee to the United States Government.
The parties agree as follows:
1. Assignment. Notwithstanding the first sentence of Section 9.4 of the Agreement, Licensor agrees that it will not, without Licensees prior written consent, assign the Agreement or any of Licensors rights, interests, or obligations under the Agreement, to any legal entity not organized under the laws of the United States (or, for clarity, one of its states).
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Section 9.4 of the Agreement is replaced with the following:
9.4 Assignment. Licensor may assign either this Agreement or any of its rights, interests, or obligations hereunder to any third party or an Affiliate without the prior written approval of Licensee; provided that any such assignment shall not limit the licenses granted hereunder. Licensee shall not assign this Agreement, or any of its rights, interests, or obligations hereunder, without the express written consent of Licensor, provided, however, that in the event of a Change of Control of Licensee after the Terminable Period, the Royalty Free License shall survive any termination of this Agreement pursuant to Section 8.3. Any assignment in breach of the foregoing shall be null and void. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
2. Termination. Notwithstanding any other provision in the Agreement, Licensor agrees that, other than in the event of an uncured failure to pay royalties, (1) Licensor will not terminate the Royalty Bearing License, and (2) if the Agreement is terminated, the Royalty Bearing License shall survive such termination subject to continued payment by Licensee of royalties.
3. New Facility. Should Licensee build or acquire an additional semiconductor fabrication facility (New Fab), Licensor will extend the rights and licenses granted in the Agreement to the New Fab subject to mutually agreed terms negotiated in good faith and documented in an amendment to the Agreement signed by authorized representatives of Licensee and Licensor.
4. Improvements. In order to provide Licensee ownership of Improvements made by Licensee to the Licensed Technology, Section 1.1(u) of the Agreement is replaced with the following: (u) Licensee Improvement means any Improvement to the Licensed Technology made solely by Licensee, or made on behalf of Licensee, on or after March 1, 2017. In addition, notwithstanding any licenses granted to Licensor (and without modifying or limiting such licenses), Licensor waives any right that it may have to request or compel disclosure of Improvements that are made by or on behalf of Licensee which Licensee is prohibited by Law or contract from disclosing to Licensor because they are a) related to performance of a United States Government contract or subcontract, b) export-controlled by the United States Government or related to export-controlled products, c) CUI (Controlled Unclassified Information), CDI (Critical Defense Information), FOUO (For Official Use Only by the United States Government), or restricted by any other instruction or regulation of the United States Government, d) subject to classification and protection as described in the NISPOM (National Industrial Security Procedures