The AMD Execution Thread [2007 - 2017]

[Razor1]

Termination; Effects of Termination.


(a) Termination by Notice for Breach. Subject to the terms of, and as further set forth in, Sections 5.2(d) and 5.2(e), and upon written notice to the other Party (as used in this Section 5.2(a), the “Terminated Party”), a Party may terminate this Agreement as a whole, or the rights and licenses of the Terminated Party and all of its Subsidiaries under this Agreement, or the rights and licenses of any materially breaching Subsidiary of the Terminating Party, in the event the Terminating Party or any of its Subsidiaries commits a material breach of this Agreement and does not correct such material breach within sixty (60) days after such Terminating Party’s receipt of written notice complaining thereof.


(b) Termination in Bankruptcy. Subject to the terms of, and as further set forth in, Sections 5.2(d) and 5.2(e), and upon written notice to the other Party (as used in this Section 5.2(b), the “Terminated Party”), a Party may terminate this Agreement as a whole, or the rights and licenses of the Terminated Party and all of its Subsidiaries under this Agreement, or the rights and licenses of any Subsidiary of the Terminated Party, if (i) any Bankruptcy Event occurs with respect to such Terminated Party or with respect to any such Subsidiaries, and (ii) following such Bankruptcy Event, such Terminated Party or any of its Subsidiaries takes any Prohibited Action.
Subject to the provisions of Section 5.2(e)(ii) of this Agreement, the Parties and their respective Subsidiaries acknowledge and agree that, as further described in Section 7.2(b), this Agreement is personal to the Parties and their respective Subsidiaries; that U.S. patent law and other applicable non-bankruptcy law excuses a Party, without its consent, from accepting performance from or rendering performance to anyone other than the other Party and its Subsidiaries; and that this Agreement constitutes an executory contract of the kind specified in Section 365(c)(1) of Title 11 of the United States Code (the “Bankruptcy Code”). The Parties and their respective Subsidiaries further acknowledge and agree that Section 365(e)(1) of the Bankruptcy Code does not prevent termination of rights and licenses as set forth in this Section 5.2(b), and that Section 365(e)(2) of the Bankruptcy Code permits such termination, in each instance on the terms and subject to the conditions of this Section 5.2(b). Each of the Parties and its Subsidiaries hereby waives the protections of the “automatic stay” contained in Section 362 of the Bankruptcy Code to the extent required to permit each other Party to exercise its rights of termination under this Section 5.2(b).



(c) Termination Upon Change of Control. Subject to the terms of, and as further set forth in, Sections 5.2(d) and 5.2(e), this Agreement shall automatically terminate as a whole upon the consummation of a Change of Control of either Party.




(d) Effects of Termination.


(i) In the event of any termination of this Agreement pursuant to Section 5.2(a), and subject to the provisions of Section 5.2(e), the rights and licenses granted to any terminated Licensed Party(ies), including without limitation the rights granted under Section 3.8(d), shall terminate as of the effective date of such termination, but the rights and licenses granted to the non-terminated Licensed Party(ies) (including without limitation the Terminating Party and all of its non-terminated Subsidiaries) shall survive such termination of this Agreement subject to the non-terminated Licensed Party’s(ies’) continued compliance with the terms and conditions of this Agreement.


(ii) In the event of any termination of this Agreement pursuant to Section 5.2(c), and subject to the provisions of Section 5.2(e), the rights and licenses granted to both Parties under this Agreement, including without limitation the rights granted under Section 3.8(d), shall terminate as of the effective date of such termination.


(e) Rights of Licensees upon any Rejection in Bankruptcy.


(i) Generally. This Section 5.2(e)(i) is in all ways subject to the provisions of Section 5.2(e)(ii). All rights and licenses granted to any Licensed Party under or pursuant to this Agreement are, for all purposes of Section 365 of the Bankruptcy Code, licenses of rights to “intellectual property” as defined in the Bankruptcy Code, and, in the event that a case under the Bankruptcy Code is commenced by or against a Party or any of its Subsidiaries granting any right or license hereunder, each applicable Licensed Party shall have all of the rights set forth in Section 365 of the Bankruptcy Code to the maximum extent permitted thereby. Without limiting the foregoing, if any such case under the Bankruptcy Code is commenced by or against either Party or its Subsidiaries, each Licensed Party shall be entitled to a copy of any and all such intellectual property and all embodiments of such intellectual property, and the same, if not in the possession of such Licensed Party, shall be promptly delivered to it (a) upon such Licensed Party’s written request following the commencement of such bankruptcy proceeding, unless the Party or Subsidiary subject to such bankruptcy case, or its trustee or receiver, elects within thirty (30) days to continue to perform all of its obligations under this Agreement, or (b) if not delivered as provided under clause (a) above, upon such Licensed Party’s request following any rejection of this Agreement or any right or license hereunder by or on behalf of the Party or Subsidiary subject to such bankruptcy proceeding. All rights of the parties under this Section 5.2(e) and under Section 365 of the Bankruptcy Code are in addition to and not in substitution of any and all other rights, powers, and remedies that each Party may have under this Agreement, the Bankruptcy Code, and any other applicable law.

The red part points to 3.8 9 (d)

Restricted Patent Rights. If either Party or one of its Subsidiaries (as used in this Section 3.8(d), the “First Party”) owns or has the right to enforce or control the enforcement of any Patent Rights, but such First Party does not have the right to license such Patent Rights to the other Party and its Subsidiaries (as used in this Section 3.8(d), the “Second Party”) under the terms of this Agreement (such Patent Rights referred to in this Section 3.8(d) as “Restricted Patent Rights”) then, if and to the extent such Restricted Patent Rights would have been licensed to the Second Party under this Agreement if the First Party had the right to license such Restricted Patent Rights:


(i) the First Party hereby grants to the Second Party with respect to the Second Party Licensed Products, and promises for itself and its permitted successors and assigns of such Restricted Patent Rights to abide by its grant of, an immunity from suit for infringement of such Restricted Patent Rights of a scope identical to the rights that would have been granted under this Agreement if the First Party had the right to license such Restricted Patent Rights;

 

[Alexko]

But this should be the relevant part:

(ii) In the event of any termination of this Agreement pursuant to Section 5.2(c), and subject to the provisions of Section 5.2(e), the rights and licenses granted to both Parties under this Agreement, including without limitation the rights granted under Section 3.8(d), shall terminate as of the effective date of such termination.

Since Section 5.2(c) is the one pertaining to a change of control.

 

[3dilettante]

Change of control looks to be split off from the other causes of termination for breach.
The latter provides some discretion on the part of the terminating party to decide what is ended and for whom.

Change of control seems to apply without that option.
This seems like a rather strong point for Intel to agree to, but if viewed from the standpoint that what this overall agreement applies to is now fixed and no longer applying going forward, it is a gradually reducing threat.

 

[Razor1]

But this should be the relevant part:



Since Section 5.2(c) is the one pertaining to a change of control.

It only applies to the party that is in breach of the contract, the following paragraph goes into that.

Change of control is a bit different even going into bankruptcy there is a change of control, and a new executor is put into place.

 

[digitalwanderer]

Y'know you're all starting to make me feel a bit gloomy about AMD's future, is this personal or just shop talk? ;P

 

[Grall]

I'm sure Intel would certainly find themselves more generous in negotiations because, if AMD (or whoever buys them) stops producing x86 chips, they really are a monopoly.

Yeah, I'm thinking Intel might get in trouble with the FCC w. regards to antitrust legislation etc should they void AMDs x86 license. It's not as if Intel is suffering from the competition anyway, it could well be advantageous to them just having AMD around as a pet competitor.

 

[Razor1]

Y'know you're all starting to make me feel a bit gloomy about AMD's future, is this personal or just shop talk? ;P

It all depends on Zen, if Zen comes out and doesn't compete well, yeah AMD is going to be in a lot of trouble, 5 more years of what is going on right now. The GPU market can only sustain them for so long. Console market as we can see right now can't sustain them.

 

[Razor1]

Yeah, I'm thinking Intel might get in trouble with the FCC w. regards to antitrust legislation etc should they void AMDs x86 license. It's not as if Intel is suffering from the competition anyway, it could well be advantageous to them just having AMD around as a pet competitor.

Anti trust is only if Intel pushed AMD out of the market due to market manipulative tactics, if AMD just goes out the way they are right now, FCC can't touch Intel.

 

[Grall]

And voiding a critical, one-sided license wouldn't count as 'manipulative tactics'? In case of a sale and Intel gets to continue using AMD IP, but AMD doesn't get to continue using Intel IP, that's not 'manipulative tactics'? I guess not - "free market" economics rarely make sense to me!

 

[Razor1]

they don't void it, its automatically done by the way the contract was written and agreed upon. FCC has no jurisdiction over contracts between the parties if the contracts were agreed upon. Well they do if its an unfair agreement. But in this case it could have went both ways, both parties have similar penlites.

 

[3dilettante]

And voiding a critical, one-sided license wouldn't count as 'manipulative tactics'? In case of a sale and Intel gets to continue using AMD IP, but AMD doesn't get to continue using Intel IP, that's not 'manipulative tactics'? I guess not - "free market" economics rarely make sense to me!

It wouldn't be voided without cause. Holding a company to its agreed-upon legally-binding contracts is not market manipulation.
There are other methods that would count in that regard, but one thing to note is that AMD agreed some time ago to drop its legal actions over the most damaging actions for a relative song.

I'm also not convinced that the regulatory regime these days cannot be swayed by arguments that competition exists in other forms, or that authorities have the will to provide any penalty that Intel couldn't absorb trivially. The courts aren't going to be able decree that AMD make up massive technical and resource deficits, or the years it has lost in progress.

 

[homerdog]

Y'know you're all starting to make me feel a bit gloomy about AMD's future, is this personal or just shop talk? ;P

Eh, as things stand it's fairly obvious AMD can't last much longer. Zen would have to be great beyond our wildest dreams to save them. Given the process tech advantages Intel has, AMD could only hope to match ~Sandy Bridge performance in the same power envelope. And don't forget, Intel's CPU architecture is amazingly good.

On the flip side, they could gains some ground back simply by updating and selling the old Phenom II stuff

 

[Grall]

On the flip side, they could gains some ground back simply by updating and selling the old Phenom II stuff

Phenom? But they've already admitted publically that even the current phenom derivatives are complete shite, they'd have to give that stuff away for free just to get rid of it, as people are generally unwilling to actually pay money for it.

If you'd said athlon it'd made some sense, because isn't that essentially what Zen is going to be, an updated A64 with modern bells and whistles? I believe they even re-hired the original K7 chip designer, or that's what I read some time ago anyway, I don't know if he still remains with the company or if it was true at all to begin with.

I interpreted it as some sort of AMD pulling a trick out of Intel's playbook, with them going back to known working roots after their prescott/tejas fiasco in the mid-aughts and then releasing pentium-M and later derivatives created from good ole Pentium Pro/III - eventually leading to Nehalem and today's chips.

 

[homerdog]

I think Phenom 2 was not bad compared to Core2. Phenom 1 was defective and went away really fast.

It was Bulldozer that really wrecked things.

 

[Razor1]

performance was close, but it still consumed more power because it had to be clocked higher then the Intel counter parts.

 

[AlNom]

It was Bulldozer that really wrecked things.

 

[homerdog]

I'd finally convinced the company I now work for to start selling AMD CPUs right around the time they became the laughing stock of the CPU world. Made me look like a fooking idiot.

Now they won't agree to sell AMD GPUs because they think the company won't be around to support them, and I can't argue with that. Also the only dGPUs we ever sell are in the GTX750 performance class and selling AMD GPUs with that level of performance would require a more expensive PSU in a business where we have to compete with Dell on price.

 

[AlNom]

Yikes.

 

[cal_guy]

It only applies to the party that is in breach of the contract, the following paragraph goes into that.

Change of control is a bit different even going into bankruptcy there is a change of control, and a new executor is put into place.

Change of control isn't a breach of contract. Here's what AMD had to say about this subject in May.

Actually, the agreement is pretty clear – if there is a change of control for either company the agreement is terminated,” said Mr. Prairie. “That does not mean a new agreement could not be reached, but in a change of control the agreement is terminated.

http://www.kitguru.net/components/c...nge-of-control-terminates-agreement-for-both/

 

[Razor1]

Well there is this section in the contract for change of control, and there is a whole section on what change of control is too.

if such entity does not have voting shares or other securities, (i) more than fifty percent (50%) of the ownership interest that represents the right to make decisions for such entity, (ii) the ability to elect at least fifty percent (50%) of the board of directors or similar managing authority of the subject entity, whether by contract or otherwise, and (iii) an interest sufficient to receive (directly or indirectly) at least fifty percent (50%) of the profits and/or losses of such entity.
An entity shall be deemed to be a Subsidiary under this Agreement only so long as all of the requisite conditions of being a Subsidiary are met, and only so long as the Party owning or controlling the shares, stock, securities or other ownership interest or interest in profit or losses in such entity, as applicable, has not contractually or otherwise surrendered, limited or in any other way materially constrained the authority or rights set forth in subsections (a) and (b) above. For clarity, any event causing a Person that was once a Subsidiary to no longer meet the requisite conditions of being a Subsidiary, whether by Change of Control or otherwise, shall render such Person to be no longer a Subsidiary.

So if the controlling interest doesn't change then its ok, if not then there will be a breach of contract and the same rules apply as Intel will retain the 64 bit license. That's the way I took that. And if there is a buy out there is a change in controlling interest. With Bankruptcy its different, if AMD can't fulfill its obligations with in a certain amount of time, then the contract is broken. At that point you can probably expect that to happen because of the cash at hand is going to be 0, and at this point companies will probably try to buy AMD out as well.