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2.0 BUSINESS PRACTICES
As part of the overall resolution of the Actions, and without conceding
expressly or by
implication that any of the following business practices are required by the
laws of any jurisdiction, or
any order issued by any regulatory or adjudicative body, anywhere in the world,
or that contrary business
practices would violate any such laws or orders, the Parties agree to adhere to
the Business Practices set
forth in Section 2.0 for the term, and subject to the conditions, set forth in
Section 6.0.
2.1 SALES AND MARKETING PRACTICES: CUSTOMERS
2.1.1 Intel shall not award, offer, grant, pay or extend (hereinafter,
collectively, “ Award ”)
any discount, rebate, or other financial or non-financial benefit, inducement or
consideration of any kind
(hereinafter, collectively, “ Benefit ”), that is conditioned orally, in writing
or through some other express
or implied mutual understanding between Intel and the customer, on the customer
limiting or restricting,
or agreeing to be limited or restricted in, its freedom to satisfy any or all of
its demand for
microprocessors for Computer Products through the customer’s:
a. exclusive use of x86 Intel Microprocessors, or platforms for Computer
Products that
include Intel Microprocessors, in all of its business, or in any geography,
market segment, product
segment, or distribution channel; or
b. limiting or delaying its purchase or use of Specified AMD Products on a
geographic,
platform, market segment, distribution channel, volume, share of purchase, or
any other basis.
PROVIDED, HOWEVER, that nothing in this Section 2.1.1 shall limit Intel’s right
(i) to lawfully
compete on the merits for selection by the customer for any then-current design
award or for satisfaction
of any or all of the customer’s then-current demand for microprocessors in a
manner consistent with this
Agreement or (ii) to condition a Benefit on the exclusive use of Intel
microprocessors in a segment or
channel where (a) Intel is making a significant, bona fide investment to enable
the customer’s entry into
such segment or channel, (b) the period of exclusivity is no longer than
necessary for Intel to receive a
reasonable commercial return on its customer-specific investment in such entry
and (c) all of the terms
and conditions of such exclusive arrangement, including without limitation its
duration and all related
consideration, are set forth in a written instrument executed both by Intel and
the customer. Nothing in
this Section 2.1.1 or any other term in this Agreement shall be construed to
constitute AMD’s
acquiescence in Intel’s right to engage in any of the conduct described as
contested in Section 3.5, and
AMD reserves all rights to seek redress for any such conduct occurring after the
Effective Date.
2.1.2 Intel shall not Award any Benefit that is conditioned orally, in writing
or through
some express or implied mutual understanding, on a customer’s:
a. limiting, depositioning or delaying its marketing, promotion, launch,
advertising,
production, distribution, sale or branding of any product containing an AMD
Microprocessor; or
Intel Corporation
Excerpts of Form 8-K
Filed November 12, 2009
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b. forbearance, delay or abstention from participating in, or allowing its
products to be
featured or exhibited in, any AMD promotional activity, product launch, trade
show exhibit, advertising,
or public relations campaign.
2.1.3 Intel shall not withhold or threaten to withhold any Benefit, nor impose
or threaten to
impose any penalty, on the basis of a customer’s refusal to accede to a
condition precluded by, or to enter
into an understanding prohibited by, Sections 2.1.1 or 2.1.2.
2.2 SALES AND MARKETING PRACTICES: RETAILERS, DISTRIBUTORS, ODMs AND
END USERS
2.2.1 Intel shall not Award any Benefit that is conditioned, orally, in writing,
or through
some other express or implied mutual understanding, on a non-customer Third
Party (including without
limitation any retailer, distributor, original design manufacturer (" ODM "),
original equipment
manufacturer (" OEM "), system integrator and value added reseller, but
excluding any direct customer
and any end user (hereinafter, collectively, " Non-Customer Third Party ")
limiting or restricting, or
agreeing to be limited or restricted in, the Non-Customer Third Party’s freedom
to satisfy any or all of its
demand for microprocessors for Computer Products through the Non-Customer Third
Party’s:
a. exclusive use of Intel Microprocessors, platforms for Computer Products that
include
Intel Microprocessors, or Computer Products containing Intel Microprocessors in
all of its business, or in
any geography, market segment, product segment, outlet or distribution channel;
or
b. limiting, depositioning or delaying its purchase or use of Specified AMD
Products on a
geographic, platform, market segment, distribution channel, volume, share of
purchase, or any other basis.
PROVIDED, HOWEVER, that nothing in this Section 2.2.1 shall limit Intel’s right
(i) to compete
on the merits for selection by a Non-Customer Third Party for any design win or
for satisfaction of any of
Non-Customer’s Third Party’s then-current demand for microprocessors or (ii) to
condition such a
Benefit on the exclusive use of Intel Microprocessors in a segment or channel
where (a) Intel is making a
significant, bona fide investment to enable the Non-Customer Third Party’s entry
into a segment or
channel, (b) the period of exclusivity is no longer than reasonably necessary
for Intel to receive a
reasonable commercial return on its Non-Customer Third Party-specific investment
in such entry and (c)
all of the terms and conditions of such exclusive arrangement, including without
limitation its duration
and all related consideration, are set forth in a written instrument executed
both by Intel and the Non-
Customer Third Party.
2.2.2 Intel shall not Award any Benefit that is conditioned orally, in writing
or through
some other express or implied mutual understanding, on a Non-Customer Third
Party’s:
a. limiting, depositioning or delaying its purchase, sale, design, development,
marketing,
promotion, launch, production, distribution, branding, advertising, exhibition,
offer or display of any
Specified AMD Product; or
b. forbearance, delay or abstention from participating in, or allowing itself or
its products to
be featured or exhibited in, any AMD promotional activity, product launch, trade
show exhibit,
advertising or public relations campaign.
2.2.3 Intel shall not withhold or threaten to withhold any Benefit on the basis
of a Third
Party’s refusal to accede to a condition precluded by, or enter into an
understanding prohibited by,
Sections 2.2.1 and 2.2.2.
2.3 TECHNICAL PRACTICES
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Intel shall not include any Artificial Performance Impairment in any Intel
product or require any
Third Party to include an Artificial Performance Impairment in the Third Party’s
product. As used in this
Section 2.3, “ Artificial Performance Impairment ” means an affirmative
engineering or design action by
Intel (but not a failure to act) that (i) degrades the performance or operation
of a Specified AMD product,
(ii) is not a consequence of an Intel Product Benefit and (iii) is made
intentionally to degrade the
performance or operation of a Specified AMD Product. For purposes of this
Section 2.3, “ Product
Benefit ” shall mean any benefit, advantage, or improvement in terms of
performance, operation, price,
cost, manufacturability, reliability, compatibility, or ability to operate or
enhance the operation of another
product.
In no circumstances shall this Section 2.3 impose or be construed to impose any
obligation on
Intel to (i) take any act that would provide a Product Benefit to any AMD or
other non-Intel product,
either when such AMD or non-Intel product is used alone or in combination with
any other product, (ii)
optimize any products for Specified AMD Products, or (iii) provide any technical
information,
documents, or know how to AMD.
3.5 Other Issues Related to Administrative Actions.
a. AMD has challenged as illegal certain alleged Intel pricing practices for
Intel
Microprocessors and platforms for use in Computer Products by which a price,
discount, rebate or other
financial benefit (“ Discount ”) was conditioned on a customer’s volume or share
of such Intel
microprocessor purchases from Intel and on the customer’s achieving the
qualifying threshold, and was
then applied to purchases below the volume level qualifying the customer for the
Discount (“ Retroactive
Discount ”).
b. AMD has challenged as illegal certain alleged Intel pricing practices by
which a fund for
defraying the cost of Intel Microprocessors for use in Computer Products was
established to allow a
customer to make bids such that, after accounting for the use of such fund, the
cost of the Intel
Microprocessor would be below the appropriate measure of variable cost (“
Accused Bid Bucket ”).
c. AMD has challenged as illegal certain alleged Intel pricing practices by
which a
Discount was provided to an end user purchaser of any Computer Product
containing an Intel
Microprocessor that when combined with any other Discount provided by Intel with
respect to the Intel
Microprocessor included in the purchased Computer Product, results in an
effective Intel Microprocessor
price below the appropriate measure of variable cost (“ Accused End-User
Discount ”).
d. Intel and AMD do not have any understanding or agreement regarding Intel’s
freedom to
enter into Retroactive Discounts, Accused Bid Buckets and/or Accused End-User
Discounts and this
Agreement in no way affects or limits Intel’s decisions regarding pricing and
discounting or restricts or
limits in any way Intel’s complete freedom in setting prices and discounts and
in devising and
implementing any and all related policies and procedures.
e. Intel agrees that in the event it enters into voluntary settlement
discussions with a
government authority in the EC Litigation, New York Litigation or the FTC
Investigation, and if such
government authority proposes to include in a consent judgment or other
governmental order a
prohibition against Retroactive Discounts, Accused Bid Buckets or Accused
End-User Discounts, Intel
will not challenge such a prohibition as a general matter, although it may
challenge the scope or specific
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language of the prohibition. It is expressly understood, however, that Intel
remains completely free to
litigate and oppose the EC Litigation, New York Litigation and the FTC
Investigation to finality and to
reject any proposed settlement.
f. Intel understands that AMD will contend to the European Commission, the New
York
Attorney General and to the U.S. Federal Trade Commission that any Intel
Retroactive Discounts,
Accused Bid Buckets or Accused End-User Discounts are anticompetitive and
unlawful and that they
should be prohibited by any consent order or remedial injunction entered in the
EC Litigation, New York
Litigation and/or the FTC Investigation. In the course of contending for the
prohibition of Intel
Retroactive Discounts, Accused Bid Buckets or Accused End-User Discounts in
accordance with this
Section 3.5.d, AMD may disclose to the respective authorities the terms of
Sections 2.0 and 3.5 hereto.
3.7 Execution of Contemporaneous Agreements .
a. Intel and AMD shall enter into the New Patent Cross License, and the entry
into such
agreement is a condition precedent to the effectiveness of this Agreement.
b. Intel and GF shall enter into the GF Agreement, and the entry into such
agreement is a
condition precedent to the effectiveness of this Agreement.
7.0 DISPUTE RESOLUTION; ENFORCEMENT OF AGREEMENT & FUTURE
RELATIONSHIP
7.1 Claims Subject to Dispute Resolution Processes . The dispute resolution
process
contained in this Section 7.0 shall apply to and govern the resolution of any
and all Disputes that arise in
any way from any Post-Effective Date Conduct. For purposes of this Section 7.0,
“ Dispute ” shall mean
any and all acts, actions and/or Claims by AMD against Intel and all acts,
actions and/or Claims by Intel
against AMD that a Party suspects, believes, or contends violates or may violate
the competition,
antitrust, unfair competition, or similar laws of any jurisdiction, and all
Claims by any Party arising out of
or in any way related to this Agreement or its performance. Each and every
Dispute shall be resolved in
accordance with the procedures specified in this Section 7.0, which shall
constitute the sole and exclusive
procedure for the resolution of any such Dispute. The Parties agree to resolve
each and every such
Dispute through an escalation process as follows: Informal, Private Dispute
Resolution Process, followed
if necessary by Non-Binding Mediation, followed if necessary by Non-Binding
Arbitration, followed if
necessary by Litigation, as described in this Section 7.0. |
