EX-10.I.Q



 







Exhibit 10(i)(Q)




Master IT Cost Sharing Agreement




by and between




Infineon Technologies AG, Munich, Germany

- hereinafter referred to as “IFAG” -




and




Qimonda AG, Munich, Germany




- hereinafter referred to as “MPAG” -




- IFAG and MPAG may hereinafter be collectively referred to as the “Parties” and severally referred

to as a “Party” -




PREAMBLE





	1.	 	With effect as of May 1, 2006, Infineon Technologies AG and its Subsidiaries have transferred
their worldwide activities in the field of developing, manufacturing, marketing and selling
memory products and technologies into Qimonda AG and its Subsidiaries.






	2.	 	Although Qimonda AG and its Subsidiaries shall to the extent reasonably feasible develop
their business independent from Infineon Technologies AG and its Subsidiaries, various Shared
IT Services are required in order to ensure cost-efficient operations within the two groups.






	3.	 	The Parties intend to provide a standardized and balanced legal framework for such Shared IT
Services, and to provide such Shared IT Services on the terms and conditions as more
particularly described and set out in this Master IT Cost Sharing Agreement (“MICSA”).






	4.	 	Cooperating as a pool, the Parties may provide and/or use a number of different Shared IT
Services described in Exhibit 4, Shared IT Services Catalogue, attached to and made a part of
this MICSA by reference therein (“Exhibit 4”). The Shared IT Services are provided in the
common interest and for the common benefit of the Parties by one Party or both Parties.




 









 












	5.	 	The costs arising in connection with provision of the Shared IT Services are to be borne
jointly by the Parties as the beneficiaries, as described in this MICSA




MPAG and IFAG therefore agree as follows:





	1.	 	SCOPE AND CONTRACTUAL STRUCTURE
	 
	1.1	 	Defined Terms
	 
	 	 	In this MICSA, capitalized expressions shall have the meanings set forth in Exhibit 1, unless
the Parties’ contrary intention or context requires otherwise.
	 
	1.2	 	Frame Character of this MICSA
	 
	 	 	This MICSA sets forth the terms and conditions governing all worldwide Shared IT Services, and
shall be effective for any such Shared IT Services without the necessity of referring
explicitly to this MICSA. The scope of the Shared IT Services, the applicable remuneration for
the Shared IT Services, as well as other service-specific regulations is agreed in Exhibit 4.
	 
	 	 	Standard or other terms and conditions of Infineon Group or Qimonda Group (e.g., such as terms
and conditions attached to a purchase order) shall not be applicable to this MICSA unless
incorporated into this MICSA by a duly executed Amendment to this MICSA, even if the other
Party has not explicitly objected to them.
	 
	1.3	 	Order of Priority
	 
	 	 	In the event of a conflict between the terms and conditions of the documents executed pursuant
to this MICSA, precedence in the following order shall apply, unless provided otherwise herein
(listed in order of priority):






	 	(a)	 	Amendments of this Master IT Cost Sharing Agreement;

	 
	 	(b)	 	Master IT Cost Sharing Agreement;






	 	 	In case of conflicts between the Master IT Cost Sharing Agreement and its Exhibits,
Appendices, Addenda or Attachments, except where these are designed to amend the Master IT
Cost Sharing Agreement, the terms of the Master IT Cost Sharing Agreement document itself
shall prevail.
	 
	1.4	 	Modifications to this MICSA
	 
	 	 	Modifications to this MICSA are to be made by Amendments.




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	2.	 	PLACE AND NATURE OF PERFORMANCE, SUBCONTRACTORS
	 
	2.1	 	Unless otherwise agreed in writing, the place of performance of the Shared IT Services shall
be at the office of the respective entity performing or contributing to the Shared IT Service.
	 
	2.2	 	Unless otherwise agreed in writing, the Shared IT Services shall be provided in a form which
is common for such Shared IT Services in the general course of business.
	 
	2.3	 	Unless otherwise agreed in writing, the Party performing or contributing to the Shared IT
Service may either provide or contribute the respective Shared IT Services itself or through
an affiliated or non-affiliated subcontractor. In case the Party intends to enter into a new
agreement with a non-affiliated subcontractor for certain Shared IT Services which have so far
been provided by the Party itself, or extend or otherwise renegotiate a pre-existing agreement
with a non-affiliated subcontractor, the Parties shall seek mutual agreement on the
subcontractor and on the terms under which the Shared IT Services may be subcontracted. In
case the Parties do not agree on such matters within 8 weeks, either of them may – within 14
days after the effort to agree on subcontracting failed – terminate the respective Shared IT
Services by written notice upon 90 days prior written notice.
	 
	2.4	 	To the extent that a non-affiliated subcontractor is providing or contributing to the Shared
IT Service, the terms of the subcontract, especially cooperation obligations, liability,
confidentiality, applicable law (but except for pricing, payment terms and dispute
resolution), shall prevail over any conflicting provisions in this MICSA. Notwithstanding
anything to the contrary contained herein, the Party subcontracting the performance or
contribution to a Shared IT Service shall, at all times, remain fully responsible and liable
for their part in any Shared IT Services provided hereunder.
	 
	3.	 	LIABILITY
	 
	3.1	 	In the performance of the Shared IT Services and related obligations pursuant to this MICSA,
both Parties and their Subsidiaries shall only be obliged to accept responsibility for the
level of care which it also customarily applies in its own matters.
	 
	3.2	 	If any Shared IT Services are not performed at the proper time or are performed in a faulty
manner and the service providing entity is responsible for the delay or faulty performance, it
shall be obliged to remedy and perform the required Shared IT Services in a satisfactory
manner within a reasonable period of time.
	 
	3.3	 	Any liability for damages on the basis of this MICSA shall be excluded to the
extent that is legally permissible.




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	3.4	 	In case one Party has subcontracted all or parts of the performance or contribution to the
Shared IT Services to a Third Party, the other Party may request the assignment of the right
to claim compensation for damages the Party subcontracting incurred due to delay, faulty
performance or other breaches of the subcontract.
	 
	4.	 	REMUNERATION
	 
	4.1	 	Pricing
	 
	 	 	The Parties agree to share the Total Cost related to the provision of the Shared IT Services
rendered under this MICSA, taking into account fixed and variable costs. The Parties have
internally and externally examined the Shared IT Services and determined that there are three
categories of Shared IT Services: revenue driven, user driven and technology driven. Each
category accounts for approximately one third of the Shared IT Services. The Parties have
further examined the split between fixed and variable cost for each category of Shared IT
Service and determined the following split of fixed versus variable costs by category:





	 	 	 	 	 	 	 	 	 	 	 	 	 
	Category	 	 	 	 	 	Fixed Costs	 	Variable Costs
	Revenue Driven
	 	 	1/3	 	 	 	20	%	 	 	80	%
	User Driven
	 	 	1/3	 	 	 	50	%	 	 	50	%
	Technology Driven
	 	 	1/3	 	 	 	90	%	 	 	10	%
	Average
	 	 	 	 	 	 	53.3	%	 	 	46.7	%







	 	 	Using the above average percentages as a basis, the Parties agree that the Total Costs will be
shared as follows:






(a) The amount of Total Cost of Shared IT Services will be first split between fixed costs
and variable costs based upon the above percentages, i.e., 53.3% of Total Costs shall be
deemed to be “Fixed Costs,” and 46.7% of Total Costs shall be deemed to be “Variable Costs.”




(b) The amount of Fixed Costs computed in accordance with Section 4.1 (a) above shall be
shared between IFAG and MPAG in accordance with the same methodology that IFAG has allocated
Central Service Providers costs (including IT) until April 30, 2006. This methodology is
described in Exhibit 3, resulting in the mutual agreement between the Parties that 51% of
the Fixed Costs will be allocated to IFAG, and 49% thereof to MPAG (see table in section 5
of Exhibit 3). It is agreed that these percentages for sharing of Fixed Costs will remain
in effect for the life of this MICSA.




(c) The total amount of Variable Costs computed in accordance with Section 4.1 (a) above
shall be shared between IFAG and MPAG in accordance with certain “Volume Indicators” which
are more specifically explained in Exhibit 4 – Shared IT Services Catalogue. Because




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it is impossible to identify the individual variable portion of Total Cost per Shared
IT Service, the Parties agree to compute one overall percentage (the “Variable Cost Share
Percentage”) to be applied to the total of all Variable Costs to determine each Party’s
respective share thereof. Because changing business conditions may result in changes to the
Volume Indicators over time, the Parties agree that each Party’s share of the Variable Costs
may be adjusted from time to time as mutually agreed (but at minimum each fiscal year), consistent with the provisions of Section 4.2,
Adjustment Clause.




The
respective share to be paid by each Party shall be based on the
actual Total Cost incurred in rendering the Shared IT Services.



For the purpose hereof, “Total Cost” shall mean the sum of:




	 	-	 	Gross personnel expenses including personnel total target
compensation and benefits (e.g., social security)
	 
	 	-	 	Related travel and entertainment expenses
	 
	 	-	 	Infrastructure cost adder for rent, facility services, infrastructure
and IT based on local average adders of the entity providing services
	 
	 	-	 	Overhead cost adder for management and other overhead functions based
on average adder of the entity providing services
	 
	 	-	 	External expenses related to respective Services
	 
	 	-	 	Depreciation
and amortization of assets that are related to the Shared IT Services.









	4.2	 	Adjustment clause
	 
	 	 	The Parties commit themselves to entering into negotiations regarding the adjustment of the
Exhibit 4 –Shared IT Services Catalogue, in particular concerning the Volume Indicators, noted
in Exhibit 4 –Shared IT Services Catalogue, in case the contractual basis has changed
significantly.
	 
	 	 	Once a year, typically during the annual budget planning (Apr – Jul) but latest till September
30 of each year, the Parties shall review and mutually agree on the individual Shared IT
Services, the Volume Indicators  and, the planned consumption volume applicable from October 1 until September 30 of
the following year.
	 
	4.3	 	Invoicing
	 
	 	 	Unless otherwise agreed in writing, the remuneration for any individual Shared IT Services
shall be invoiced quarterly in arrears and be paid within 30 days of receipt of the invoice.




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	4.4	 	Currency
	 
	 	 	All amounts due hereunder shall be invoiced and paid in the Euro currency.
	 
	4.5	 	Taxes, Customs Duties and Other Charges
	 
	 	 	Except for VAT, any prices and charges include all taxes, customs duties or other charges
levied against the prices or charges by governmental authorities.
	 
	4.6	 	Other Changes in Scope
	 
	 	 	Any Change in the scope of Shared IT Services described in Exhibit 4 shall be subject to
adjustments and will be dealt with in accordance with the Change Management Process.
	 
	5.	 	RESPONSIBILITIES OF BOTH PARTIES
	 
	5.1	 	General Principle
	 
	 	 	The Parties agree to work closely together. Each Party shall promptly inform the other Party
of any developments that may affect the contractual obligations of the other Party, including
but not limited to potential business changes to Volume Indicators (e.g., significant increase
or reduction of consumption). Each Party shall inform the other Party in writing immediately
upon becoming aware of any impending breach of duty on the part of the other Party.
	 
	5.2	 	Statutory Obligations and Orders by Authorities
	 
	 	 	Each Party shall support the other Party in complying with all statutory obligations and
orders of authorities. Each Party shall provide the other Party with any documents or
information required to that effect. The foregoing shall not affect the Parties’ obligation to
fulfil their respective legal obligations.
	 
	5.3	 	Work at Qimonda Group or Infineon Group Locations
	 
	 	 	If a Party is granted access to the other Party’s sites, network and computing facilities
(which requires such Party’s prior written consent), such access may be used only for the
purpose of performing the Shared IT Services. The Party granted such access shall comply with
all the other Party’s security and access requirements.
	 
	5.4	 	Use of Qualified Personnel
	 
	 	 	The Parties shall perform all Shared IT Services with qualified personnel using the same care
and attention that each Party uses in providing similar services to its own internal users.
Each Party shall be responsible for the day-to-day management of its respective staff.
	 
	5.5	 	Compliance with Service Levels and Schedules
	 
	 	 	Each Party shall perform all Shared IT Services in accordance with the time schedule and
service levels that it delivers similar services to its own internal users.




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	 	 	The Parties shall inform each other promptly in writing if a Party anticipates or becomes
aware of any potential issues that may affect scheduled dates with regard to the Shared IT
Services.
	 
	6.	 	RIGHTS & RESPONSIBILITIES OF BOTH PARTIES
	 
	6.1	 	Audit of Shared IT Services
	 
	 	 	Each Party shall have the right to audit the other Party’s data and records related to the
Shared IT Services as reasonably required. The Party conducting such an audit shall be
required to notify the other Party in writing one month before the Party starts to conduct
such an audit. Should important business reasons justify a delay in the performance of such an
audit, the Parties will agree in good faith to an adjustment of the timing. Any auditors
requesting information from the Party being audited shall sign a non-disclosure agreement that
is satisfactory to the Party being audited.
	 
	6.2	 	Provided Items and Information
	 
	 	 	Certain Shared IT Services will require that the Parties provide certain items and information
to enable the provision of the Shared IT Services. The Parties agree to provide all such items
and information on a timely basis at no charge. The Parties agree to use all reasonable
efforts that any required decisions and tasks to be executed are completed in a timely manner.
Should a Party fail to fulfil its material duties of co-operation in the agreed manner or
within the agreed time limit, such failure shall extend the due date or affected service
levels for the performance of obligations of the other Party to the extent required as a
result of delayed performance.
	 
	6.3	 	Access to the Parties’ Premises
	 
	 	 	Each Party may elect, at its own expense, to visit those parts of the other Party’s facilities
used to provide Shared IT Services. Each Party shall grant reasonable access to the other
Party of any of its premises that are related to such Party’s performance under this MICSA.
Such access shall be granted a) with appropriate prior notice; b) in accordance with the
granting Party’s security and other visitor procedures; c) made during normal business hours
of the granting Party; and d) provided such visits do not hinder or obstruct the granting
Party in its daily operations or the timely performance of its obligations under this MICSA.
Each Party shall have the right to reasonably refuse such access for legal, or confidentiality
purposes.


Each Party will provide, at no charge to the other Party, the premises and working environment
at their respective locations to those members of the other Party’s staff who are reasonably
required to be located on such premises for purposes of providing the Shared IT Services,
including but not limited to such things as reasonable office space, office furnishings, data
center space, utilities in connection with such space. Additionally, a Party’s personnel
located at the other Party’s premises in conjunction with the Shared IT Services shall have
access to





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	 	 	services such as canteen, parking and medical assistance on a comparable basis to such
services that are available to the other personnel at the subject location, at no additional
cost.
	 
	7.	 	CHANGE AND SERVICE MANAGEMENT
	 
	7.1	 	Change Management
	 
	 	 	No Change to the Shared IT Services shall be enacted unless documented and agreed by the
Parties. The Change Management Process shall be agreed as part of the Service Management
Concept to be agreed as provided herein. The Parties acknowledge and agree that Changes may
result in increase or decrease to the Total Costs and the resulting allocations charged for
the Shared IT Services, reflective of the change of scope and impact on the Total Cost.
	 
	7.2	 	Service Management
	 
	 	 	As soon as reasonably possible, the Parties will agree upon and implement a Governance
Structure and Concept which shall include but not be limited to the topics listed in Exhibit
2, Service Management.
	 
	8.	 	Intellectual Property and Infringement of Third Party rights
	 
	8.1	 	Intellectual Property
	 
	 	 	Each Party will remain the owner of its Material, any modifications thereto, and all related
Intellectual Property Rights thereto with regard to all Material provided or otherwise made
available in the course of the performance of the Shared IT Services. The Parties will grant
each other the right to use the Material provided solely to the extent necessary to provide
the Shared IT Services during the term of this MICSA.
	 
	 	 	Unless otherwise agreed in writing, any Material or related Intellectual Property Rights
developed, made, or otherwise created by the Parties or an employee or employees of the
Parties in the course of the performance of the Shared IT Services pursuant to this MICSA
(hereafter “New IP”) shall be jointly owned by each Party, and each Party shall have full,
unrestricted, and unencumbered rights to practice and exploit such New IP.
	 
	 	 	Notwithstanding the foregoing to the contrary, the following shall apply to the New IP with
regard to transfer to third parties: The Parties entered into a contribution agreement
(“Einbringungsvertrag”) dated April 25, 2006 (including its exhibits and amendments), and a subsequent
Information Technology IP amendment thereto (“Nachtrag 2”), including its respective exhibits and amendments




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	 	 	(hereinafter “Amendment 2”) and any New IP shall be subject to the same regulations as
provided for in Amendment 2.
	 
	8.2	 	Software
	 
	 	 	Neither Party shall copy, modify or use any other Party’s Software without the prior written
consent of the other Party, except as otherwise mutually agreed between the Parties.
	 
	8.3	 	Trade Marks/Service marks
	 
	 	 	The Parties agree that neither the Qimonda Group nor the Infineon Group shall, without the
prior written consent of the other Party, use the name, service marks or Trade Marks of such
other Party. The Parties agree to ensure that the copyright notice and any other legend of
ownership on the original is reproduced on any copies of Material provided under this MICSA.
	 
	8.4	 	Intellectual Property Indemnity
	 
	8.4.1	 	If, in connection with the provision or use of the Shared IT Services, any claim, action or
allegation by a Third Party against a Party asserting or involving an infringement of an
Intellectual Property Right of said Third Party, the Party furnishing the alleged Infringing
Material (the “Indemnifying Party”) will defend, at its expense, and will indemnify the other
Party (the “Indemnified Party”) against any loss, cost, expense or liability arising out of
such claim, whether or not such claim is successful.
	 
	8.4.2	 	Neither Party shall be liable for the infringement to the extent that the claim, action or
allegation is based on (i) the use, license or sale of the Infringing Material in combination
with other materials (including software) not furnished by the Indemnifying Party or (ii) use,
modification, installation, implementation of the Infringing Material in a manner not allowed
under the respective license granted to the Indemnified Party or (iii) the failure to maintain
the Infringing Material according to the Indemnifying Party’s prior given written
recommendations, where without these aforesaid activities (i.e., (i) - (iii)), the claim,
allegation or action would not have arisen.
	 
	8.4.3	 	Each Party hereunder shall give the other Party prompt notice in writing of any claim or
liability hereby indemnified against by such other Party and thereupon such other Party shall
be entitled to control, and shall assume full responsibility for, the defense of such matter.
If the Indemnifying Party elects to assume such responsibility, it shall so notify the
Indemnified Party. The indemnities contained herein shall not be deemed to be a waiver of or
limitation of any other rights either Party may have including, but not limited to, rights of
indemnity or contribution.




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	8.4.4	 	The Indemnified Party shall cooperate in all reasonable respects with the Indemnifying Party
and its attorneys in the investigation, trial and defense of such claim or liability and any
appeal arising thereof; provided, however, that the Indemnified Party may, at its own cost and
expense, participate, through its attorneys or otherwise, in such investigation, trial and
defense of such claim or liability and any appeal arising thereof. No settlement of a claim
that involves a remedy other than the payment of money by the Indemnifying Party shall be
entered into without the consent of the Indemnified Party. After notice by the Indemnifying
Party to the Indemnified Party of its election to assume full control of the defense of any
such claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal
expenses incurred thereafter by such Indemnified Party in connection with the defense of such
claim.
	 
	8.4.5	 	If the Indemnifying Party (i) does not decide to assume full control over the defense of a
claim subject to defense as provided in this Section, or (ii) does not adequately pursue such
defense, the Indemnifying Party may participate in such defense, at its sole cost and expense,
and the Indemnified Party shall have the right to defend such claim in the manner it deems
appropriate, at the cost and expense of the Indemnifying Party.
	 
	8.4.6	 	If an injunction or order is obtained against one Party’s use of any Infringing Material by
reason of the allegations, action or claim, or if such a claim, action or allegation is made
or if in said Party’s opinion any such Infringing Material is likely to become subject of a
claim, action or allegation of infringement or violation of an Intellectual Property Right of
a Third Party, the Indemnifying Party shall, at its option and its expense:






a) Procure for the Indemnified Party the right to continue using the Infringing Material; or




b) Replace or modify the same so that it becomes non-infringing, which modification or
replacement shall not adversely affect the applicable specifications for, or the use or
operation by the Indemnified Party of, the Infringing Material; or




c) If the Infringing Material is licensed and the other options stated are not practicable,
remove such Infringing Material from the Indemnified Party’s site(s) and refund to the
Indemnified Party any charges paid by the Indemnified Party, other than charges for any actual
period of use by the Indemnified Party, release the Indemnified Party from any further
liability hereunder and pay all costs of the Indemnified Party to secure a replacement for the
Infringing Material.




	9.	 	CONFIDENTIALITY
	 
	9.1	 	All Confidential Information received by a Party or its Subsidiaries from the other Party or
its Subsidiaries, or to which access is granted (e.g. via data banks) in connection with this
MICSA,





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	 	 	even if not expressly designated as Confidential Information, shall only be used by the
receiving Party and its Subsidiaries for the performance of its obligations under this MICSA.
For as long as and to the extent that such Confidential Information is not generally known or
the respective other Party to the MICSA has not previously consented in writing to such
Confidential Information being made known, the receiving Party and its Subsidiaries shall
treat the information and documents as confidential with regard to Third Parties who are not
involved in the performance of any obligation under this MICSA.
	 
	 	 	If a Party or its Subsidiaries has to process personal data as part of this MICSA, they shall
comply with all applicable data protection legislation, agree to take required data security
measures and enable the other Party to keep itself informed regarding compliance. These
obligations shall also continue to apply after the termination of this MICSA according to the
applicable laws.
	 
	9.2	 	The Parties shall ensure that their employees, subcontractors and agents maintain the secrecy
of all Confidential information to which they have access on the basis of their work or to
which they are given access as a result of this MICSA, and the Parties shall also impose this
confidentiality obligation upon them in respect of the relevant period required under
applicable laws after the termination of their employment agreements.
	 
	9.3	 	Unauthorized Access to or Use of Confidential Information
	 
	 	 	In the event of unauthorized access or attempt to access, unauthorized use or attempt to use
Confidential Information, the relevant Party shall:






	 	(a)	 	Promptly notify the other Party in writing,
	 
	 	(b)	 	Use best efforts to cooperate with such Party in any investigation and/or
litigation against Third Parties deemed necessary by such Party to protect its
Confidential Information and proprietary rights, and/or
	 
	 	(c)	 	Use best efforts to stop and to prevent a recurrence of any such unauthorized
access or use.






	9.4	 	Return or Destruction of Confidential Information
	 
	 	 	Upon any termination of this MICSA, a Party shall, as directed by the other Party, either
return or destroy all copies (including the original) of Confidential Information that are in
such Party’s possession. In the event Confidential Information is destroyed, such Party shall
send written verification to the other Party that the destruction has been accomplished.


Notwithstanding the above, the Parties may a) maintain archival media containing any
Confidential Information if and to the extent required by mandatory applicable law or an
agreed upon quality system, b) the Parties may use such archived Confidential Information
solely for





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	 	 	back-up purposes, and c) such archived Confidential Information shall be returned or destroyed
pursuant to this Section immediately upon expiration of the archival requirement.
	 
	10.	 	TERM AND TERMINATION OF THIS AGREEMENT
	 
	 	 	The term of this MICSA shall become effective as of May 1, 2006 and shall continue until it is
terminated as provided herein.
	 
	 	 	This MICSA shall terminate once all Shared IT Services (as listed in Exhibit 3) hereunder have
expired or been terminated.
	 
	 	 	Any individual Shared IT Service under this MICSA may be terminated by either of the
respective Parties to that individual Shared IT Service at any time to the end of any calendar
month by giving 90 days prior written notice, provided that there shall be no termination for
convenience prior to September 30th 2007 without mutual agreement. However, any
Shared IT Services which have been subcontracted can in no case be terminated for convenience
within a shorter notice period than set out in the respective subcontract.
	 
	 	 	Each Party shall have the right to terminate this MICSA in the event that bankruptcy,
receivership, insolvency, dissolution, liquidation or other proceedings are instituted by or
against the other Party or all or any substantial part of the other Party’s property under
applicable law.
	 
	 	 	In the event that either Party chooses to terminate any individual Shared IT Service or any
part thereof as listed in Exhibit 4, such Party shall be obliged to enter into a termination
assistance agreement with the other Party. Such termination assistance agreement shall specify
the tasks to be performed and the schedule for winding down the Shared IT Service in order to
secure the operational stability of the terminated Shared IT Service.
	 
	 	 	Such tasks shall include but shall not be limited to the following obligations if and to the
extent required by the other Party:






	 	-	 	Mutual development of a termination assistance plan
	 
	 	-	 	Continued provision of the Shared IT Service until a replacement is operational
	 
	 	-	 	Cooperation, support and know how transfer within the transition period
	 
	 	-	 	Provision of training and documentation
	 
	 	-	 	Each Party will exercise reasonable efforts to facilitate the
potential transfer of related third party license rights from itself
to the other Party as appropriate and feasible (responsibility for
any cost associated with such transfer of licenses shall be the
responsibility of the Party receiving such license rights unless
otherwise mutually agreed in the termination assistance agreement) in
order to continue the terminated Shared IT Service 
	 
	 	-	 	Where feasible and appropriate, assignment of any Third
Parties contracts applicable to the affected Shared IT Service






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	 	 	If the Shared IT Service is provided by a non affiliated subcontractor, each Party shall
exercise reasonable efforts to ensure that any such subcontractor
will provide the necessary termination services to the other Party in
alignment with the termination assistance services as contemplated
herein.
	 
	 	 	Each Party understands that the terminated Party relies on the uninterrupted availability of
the Shared IT Service. Therefore the terminating Party may in no case exercise a retention
right, refuse access to facilities or systems necessary in order to operate the Shared IT
Service or retain any know how, equipment or rights necessary for the uninterrupted operation.
	 
	 	 	The termination assistance shall be remunerated according to the mutual agreement in the
termination assistance plan. This plan shall also cover the equitable sharing of potentially resulting
cost to ramp down the terminated Shared IT Service.
	 
	 	 	Each Party agrees to make commercially reasonable efforts to minimize all costs of any
termination.
	 
	11.	 	MISCELLANEOUS
	 
	11.1	 	Interpretation
	 
	 	 	The Section and Exhibit headings, the table of contents and the list of exhibits are for
reference and convenience purposes only and shall not be considered in the interpretation of
this MICSA.
	 
	11.2	 	Force Majeure
	 
	 	 	Neither Party shall be liable to the other for failure or delay in the performance of any of
its obligations under this MICSA for the time and to the extent such failure or delay is
caused by force majeure such as, but not limited to, riots, civil commotions, wars, strikes,
freight embargo, lock-outs, hostilities between nations, governmental laws, orders or
regulations, actions by the government or any agency thereof, storms, fires, sabotages,
explosions or any other contingencies beyond the reasonable control of the respective Party
and of its sub-contractors. In such events, the affected Party shall immediately inform the
other Party of such circumstances together with documents of proof and the performance of
obligations hereunder shall be suspended during, but not longer than, the period of existence
of such cause and the period reasonably required to resume performance of the Shared IT
Services in such cases. The affected Party shall take commercially reasonable steps to
mitigate damages arising out of the force majeure event.




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	11.3	 	Language and Notices
	 
	 	 	Any notices permitted or required hereunder shall be made by registered mail or by telefax and
confirmed by registered mail to the following addresses or such other addresses as submitted
by a Party to the other from time to time in writing:





	 	 	 	 
	 	If to “MPAG”:

	 	If to “IFAG”:
	 	Qimonda AG

	 	Infineon Technologies AG
	 	Attn: Legal Department

	 	Attn: Legal Department
	 	Copy to: CIO

	 	Copy to: CIO
	 	Gustav-Heinemann-Ring 212

	 	PO Box 80 09 49
	 	81739 München

	 	81609 München
	 	Germany

	 	Germany







	 	 	Copies of such notices shall be forwarded to the Relationship Manager of the other Party.
	 
	11.4	 	Export and Import Compliance
	 
	 	 	Export of controlled commodities, technical data, or information about such commodities or
data may be prohibited by law. Both Parties agree to take all steps reasonably necessary to
comply with applicable export and import laws and regulations as they apply to use and
distribution of the subject mater of this MICSA.
	 
	11.5	 	No Implied Licenses
	 
	 	 	Except if and to the extent specifically provided for in this MICSA, no rights or licenses of
any kind (whether express or implied) are granted hereunder. No right, expressed or implied,
is granted by this MICSA to a Party to use in any manner the name or any other trade name or
trademark of the other Party in connection with the performance of this MICSA.
	 
	11.6	 	Non-Waiver
	 
	 	 	No express or implied waiver by any of the Parties to this MICSA of any breach of any term,
condition or obligation of this MICSA shall be construed as a waiver of any subsequent or
continuing breach of that term, condition or obligation or of any other term, condition or
obligation of this MICSA of the same or of a different nature. Any waiver, consent, or
approval of any kind regarding any breach, violation, default, provision or condition of this
MICSA must be in writing and shall be effective only to the extent specifically set forth in
such writing.
	 
	11.7	 	Entire Agreement
	 
	 	 	This MICSA, and all documents referred to herein, constitutes the entire agreement between the
Parties with respect to the subject matter therein described, and supersedes any prior or
simultaneous communications, representations or agreements with respect hereto, whether oral
or written.




14









 






	11.8	 	Written Form
	 
	 	 	Amendments or Changes to this MICSA shall only be valid if made in writing and duly signed by
the Parties.
	 
	11.9	 	No Assignment
	 
	 	 	Neither Party may assign this MICSA, delegate its obligations or assign its rights hereunder
without the prior written consent of the other Party, which consent will not be unreasonably
withheld.
	 
	11.10	 	No Agency
	 
	 	 	The Parties are independent contractors and nothing in this MICSA is intended or shall be
construed as one Party being an agent, partner, or joint venturer of the other Party.
	 
	11.11	 	Governing Law
	 
	 	 	This MICSA shall be subject to the substantive law in force in Germany without reference to
its conflicts of law provisions. The application of the United Nations Convention on Contracts
for the International Sale of Goods of April 11, 1980 shall be excluded.
	 
	11.12	 	Dispute Resolution and Arbitration
	 
	 	 	Any disputes arising in connection with this MICSA or relating to its validity shall be
finally decided in accordance with the arbitration regulations of the German Arbitration
Institution (Deutsche Institution für Schiedsgerichtsbarkeit e.V.), Bonn, to the exclusion of
legal proceedings. The arbitration tribunal shall also be entitled to come to a binding
decision regarding the validity of this arbitration clause. The venue of the arbitration shall
be Munich.
	 
	11.13	 	Severability
	 
	 	 	If any provision of this MICSA is held to be invalid, illegal or unenforceable under
applicable law the remaining provisions shall continue to be in full force and effect. The
Parties undertake to replace the invalid provision or parts thereof by a new provision which
will meet as closely as possible the economic effect intended by the Parties at the time of
execution of this MICSA.
	 
	11.14	 	No Exclusivity of Remedies
	 
	 	 	Unless explicitly set forth otherwise, this MICSA shall not limit any right or remedy both
Parties may have under applicable law.




15









 











     IN WITNESS WHEREOF, the Parties hereto have caused this MICSA to be executed by their
respective duly authorized representatives:



	 	 	 	 	 	 	 	 	 
	Infineon Technologies AG	 	 	 	Qimonda AG
	Munich,	 	                                         	 	 	 	Munich                                            
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 
	 	 	 	Name:
	 	 
	Title:

	 	 
	 	 	 	Title:
	 	 
	 
	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	 
	 	 	 	Name:
	 	 
	Title:

	 	 
	 	 	 	Title:
	 	 






16









 






EXHIBIT
1 - DEFINITIONS:




“Affiliate”





Shall mean any company of either Party that is related to the respective Party in the sense
of §§ 15 ff. of the German Corporation Law (“Aktiengesetz”).



“Amendment”





Shall mean a document agreed by the Parties and executed hereunder, that in any way alters
(e.g., adds to, deletes from, or modifies) the terms and conditions of this MICSA.



“Business Day(s)”





Shall mean any day that a location of a Party is open for business as defined by the
operating calendar of the location of the Party where Shared IT Services are to be
performed or delivered.



“Calendar Day(s)”





Shall mean a day or days as defined in the Gregorian calendar.



“Change(s)”





Shall mean any modification to the tasks, specifications, functionalities, time schedules,
delivery dates associated with the Shared IT Services which are agreed in writing and
signed by duly authorized representatives of both Parties.



“Confidential Information”





Shall mean any technical and/or commercial information of a Party received by the other
Party in any form under or in connection with this MICSA, including information relating to
the disclosing Party’s respective businesses, facilities, products, services, techniques
and processes, whether in the form of oral disclosure, demonstration, device, apparatus,
model, sample of any kind, computer software (including, but not limited to, source code
and documentation), magnetic media, document, specification, circuit diagram, or drawing or
visual observation of the above. Confidential Information shall include any copies or
abstracts made thereof as well as any modules, samples, prototypes or parts thereof.




Confidential Information as defined above, however, does not include (i) any information in
the public domain, unless such information was made public by the other Party’s failure to
comply with its obligations under this MICSA, (ii) information already known to or in the
possession of the other Party prior to entering into this MICSA, (iii) information
independently developed by the other Party or (iv) information which is obtained by the
other Party without restriction on disclosure.



“Deliverable(s)”





Shall mean those elements of Shared IT Services which are identified in Exhibit 3, which
are to be delivered by one Party to the other in accordance with the applicable project
schedule, delivery or milestone dates.



“Infineon Group”




     Shall mean IFAG and its Subsidiaries.



“Intellectual Property Rights”





Shall mean all intellectual and industrial property rights of any kind whatsoever, now or
hereafter existing, including, without limitation patents, trade marks, service marks,
rights in designs, trade names, present and future copyrights, utility and design models
whether or not any of these are registered and including applications for any such right,
matter or thing or registration thereof, trade secrets and rights of confidence, all rights
or forms of protection of a similar nature or having equivalent or similar effect to any of
these which may subsist anywhere in the world, as well as all documents, information and
other records and data provided to the other Party in the course of the performance of the
MICSA.



“Master IT Cost Sharing Agreement” or “MICSA”





17









 









Shall mean this document and all of its Exhibits, Appendices, Addenda, Attachments and
Amendments.



“Material”





Shall mean all materials and know-how which is subject to an Intellectual Property Right,
including but not limited to Software, tools, documents, reports, data models, functional
specifications, designs, drawings, manuals and magnetic tapes as well as complete or
partial copies of the foregoing.



“Relationship Manager”





Shall mean each Party’s respective individual having the responsibilities for overall
management and governance issues related to this MICSA, as determined in accordance with
Exhibit 2.



“Qimonda Group”




     Shall mean Qimonda AG and its Subsidiaries.



“Shared IT Service(s)”





Shall mean any specialized or professional IT related service tasks defined in Exhibit 3,
Shared IT Service Catalogue.



“Service Manager”





Shall mean each Party’s respective individual having the responsibilities for a respective
Shared IT Service, as determined in accordance with Exhibit 2.



“Subsidiary”





Shall mean any company in which, presently or in the future, any Party owns more than fifty
percent (50%) of such company’s voting capital or controlling interest, provided that a
Subsidiary shall be deemed to be a Subsidiary only as long as such percentage of voting
capital or controlling interest prevails. For the purposes of this MICSA, MPAG and its
Subsidiaries shall not bee deemed to be Subsidiaries of IFAG.



“Third Party” or “Third Parties”



Shall
mean any organization(s), company (or companies) or entities other than MPAG, IFAG, or the Parties respective Subsidiaries.




“Volume Indicator”





Shall mean the specifically defined indicators for each Shared IT Service as identified and
listed in Exhibit 4.



18









 





Exhibit 2 – Service Management



The Parties agree that the following provisions will be agreed in reasonable detail in the
Service Management Concept to be negotiated and mutually agreed:




1. Designation of Key Staff.





Designation of Relationship Manager




As soon as reasonably possible, each Party shall designate in writing an individual to serve
as its Relationship Manager.




Designation of Service Manager




As soon as reasonably possible, each Party shall designate in writing an individual to serve
as its Service Manager for each Shared IT Service agreed between the Parties.




Representative Responsibilities of each Party’s Service Manager include but are not limited
to:




	 	•	 	Day-to-day management of the respective Party’s staff who are involved in the
delivery of the Shared IT Services.
	 
	 	•	 	Day-to-day management of the respective Party’s authorized subcontractors who are
involved in the delivery of the Shared IT Services.
	 
	 	•	 	Manage and ensure the timely execution of the respective Party’s responsibilities
in all service management procedures such as Contract Change Control Procedure,
Acceptance Testing, etc.
	 
	 	•	 	Ensure that agreed schedules are met.
	 
	 	•	 	Ensure that the respective Party’s proposals in response to request for Change
are delivered in accordance with the agreed procedure.
	 
	 	•	 	Ensure that confidentiality and security requirements are complied with.
	 
	 	•	 	Tracking and reporting of service levels or other of the respective Party’s
performance requirements are met.
	 
	 	•	 	Managing all of the respective Party’s responsibilities associated with delivery
of the Shared IT Services.





     Designation of other Key Staff




Each Party shall designate in writing other individuals to serve in key staff positions as
appropriate and agreed. Such key staff positions may include but are not limited to:




	 	•	 	Program Manager in the event that multiple projects are involved.
	 
	 	•	 	Project Manager for each project in the event that multiple projects are involved.
	 
	 	•	 	Members of the steering committee in situations where it is deemed necessary to
create a steering committee.
	 
	 	•	 	Senior managers named as escalation steps above the various other managers
contemplated herein.




19









 











2. Status Meetings





During the term of this MICS, each Party’s respective Service Manager and as appropriate,
other key staff involved in the performance of the relevant Shared IT Services, shall meet
regularly at a mutually agreed location, or conduct a telephone conference call, to discuss
the progress made in the performance of their respective obligations during the period since
the most recent meeting for such purpose. The frequency of such meetings will be at a
minimum every two weeks, and the topics to be discussed will include items such as:




	 	•	 	Work completed since the last meeting, with special attention paid to work planned
but not completed, including reasons for the failure to complete,
	 
	 	•	 	Problems encountered since last meeting and a review of status on all outstanding
problems;
	 
	 	•	 	Work planned to be completed by the next meeting;
	 
	 	•	 	Detailed review of relevant plans and schedules;
	 
	 	•	 	Risks identified since last meeting and a review of status of all outstanding risks;
	 
	 	•	 	Status of change control activities, including requests for Change in process, MICSA
Amendments being implemented and pending since the previous meeting, and
	 
	 	•	 	Other items as requested by each Party’s respective Service Manager or Relationship
Manager.






A record of the proceedings (including decisions taken) at each such status meeting (i.e.,
meeting minutes) shall be prepared by each Party’s Service Manager and such meeting minutes
shall be mutually agreed by the respective Service Managers of each Party.



3. Dispute Resolution





Each Party’s respective Service Manager shall promptly discuss and attempt to resolve
disputes arising out of or relating to this MICSA. Any dispute that cannot be resolved
within five (5) business days (from written notification that there is a dispute) at the
Service Manager Level shall be referred in writing to the respective Relationship Manager of
each Party. Any dispute that cannot be resolved in five (5) additional business days shall
then be referred in writing and discussed by each respective Party’s next highest ranking
management (or higher ranking as determined by the respective Party). Any dispute that
cannot be resolved within a total of twenty (20) business days from initial written
notification that there is a dispute shall then be a matter for pursuit as specified in
Section 11.12 of the MICSA, titled “Dispute Resolution
and Arbitration”. However, the above
dispute resolution rules shall not limit either Party from directly seeking legal remedies
according to Section 11.11 of the MICSA, titled
“Governing Law”.



4. Additional Service Management Provisions





In addition to the requirements and procedures identified above in this Exhibit 2, the
following procedures shall be considered for inclusion in the Service Management Concept,
details to be negotiated and mutually agreed as appropriate to the relevant Shared IT
Service:




Governance of Service Center, Location Management, Regional Management and Global Management




Escalation Management




Incident Management



20









 






Problem Management




Service Request Management




Service Level Management




Capacity Management




Availability Management




Service Continuity Management




Security Management




Change Management Process




Management of any other contractual requirement



21









 





Exhibit 3 – General Allocation Systematics for Infineon CSP



Central Service Providers (CSP) are working on strategic and/or general central functions
within IFAG or the regional organizations IF NA, IF AP, IF J, IF CN, etc. CSPs are subsumed to
clusters like IT-, Logistics- or Central Departments – within the group consolidation the values
over all responsibilities are added to a total amount by cluster and function and are allocated
centrally to product lines



The following Attachment 1 to this Exhibit 3 describes the general allocation process for Infineon
CSP cost which has been applied for the IT cost until April 30, 2006. That same process is used to
determine the allocation keys to be used for sharing of Fixed Costs pursuant to this MICSA.



22









 






Attachment 1 to Exhibit 3






1. Description of the allocation process:




     a. Purpose and objective




	 	i.	 	Infineon’s CSP costs are to be allocated to the
respective product lines (“PL”) to ensure correct recognition of segmental
financial figures in Infineon’s P&L





     b. Procedure




	 	i.	 	Defined costs are to be proportionally transferred to
product lines using specific percentages (“Allocation Keys P&L”) which are
calculated so as to reflect the respective product line’s proportional
benefit of the respective CSP.





     c. Result




	 	i.	 	Each product line will show all costs relevant for
their business, i.e., including a proportional share of costs generated by
Infineon CSPs.





2. Allocation Keys P&L – Details




     a. Calculation




	 	i.	 	Calculation of Allocation Keys shall be done once each
fiscal year, based on the Financial Rolling Forecast for June
	 
	 	ii.	 	Allocation Keys are calculated on BG level and
communicated to the respective BGs.





     b. Application




	 	i.	 	Actuals: usage of new keys (= keys for next FY) from
closing October onward (reason: consistency per quarter)
	 
	 	ii.	 	Forecast: new keys for next FY are used from
forecast RFC_Jul onwards beginning with month of





     c. Further rules




	 	i.	 	No cluster-on-cluster allocation
	 
	 	ii.	 	Allocated CSP cost shall not be born/be born by
responsible BG from quarter beginning 4.6 months after acquisition/closing
onwards respectively; in the meantime cost will be reported under CORP
there after, e.g . till the end of the running FY





3.
Allocation Keys P&L – Responsibilities




     a. For calculation and calculation methodology




	 	i.	 	PC C: Value added, IT CoS, IT R&D, R&D Central, LOG CoS, LOG S&M
	 
	 	ii.	 	MP: MH
	 
	 	iii.	 	LOG: LOG S&M (weighting Corp LOG and CLM)

	 
	 	iv.	 	CP: CCU28
	 
	 	v.	 	MSS: CCU44





     b. For usage within closing and FRFC




	 	i.	 	Actuals: PC SR
	 
	 	ii.	 	FRFC: PC C, PC SR (tool environment)





4.
Allocation Keys P&L – Overview




	 	 	 	 	 	 	 	 	 
	 	 	Base for key calculation and	 	 	Percentage	 	 
	Key	 	further details	 	 	for MP	 	Usage
	 
	 	 
	 	 	 	 	 	 
	Value Added

	 	Value added
base figures
calculated with
total sales less
total EBIT
	 	 	47,05	%	 	Selling costs and G&A costs CKTR96
	 
	IT CoS

	 	Total cost of
sales, i.e., in
proportion to
expenses per
PL
	 	 	52,82	%	 	CoS IT-cluster (CKTR96
	 
	IT R&D

	 	Total R&D
cost, i.e. , in
proportion to
expenses per
PL
	 	 	34,28	%	 	R&D costs IT Cluster (CKTR96)






5. Calculation of overall CSP cost share between Logic and MP




Based upon the figures for
Fiscal Year 05/06, application of the above percentages to the amount
for each category results in an MP share of 49.24%.






23









 






Exhibit 4
– Shared IT Services Catalogue




	 	 	 	 	 	 
	Service ID	 	Service Short Name	 	 
	OS-S1
	 	Access control systems operation	 	 	 
	OS-S2
	 	Active Directory	 	 	 
	OS-S3
	 	BP Application Access (Tarantella)	 	 	 
	OS-S4
	 	Client Services	 	 	 
	OS-S5
	 	Database services	 	 	 
	OS-S6
	 	DataCenter Facility Management	 	 	 
	OS-S7
	 	DMZ	 	 	 
	OS-S8
	 	IT OS PA support tool service	 	 	 
	OS-S9
	 	LAN	 	 	 
	OS-S10
	 	Messaging & Email	 	 	 
	OS-S11
	 	Middleware Service	 	 	 
	OS-S12
	 	Print Service	 	 	 
	OS-S13
	 	Service Desk	 	 	 
	OS-S14
	 	Terminal Server	 	 	 
	OS-S15
	 	Unix System Management	 	 	 
	OS-S16
	 	VIP Service (Board PC Support)	 	 	 
	OS-S17
	 	Voice	 	 	 
	OS-S18
	 	WAN	 	 	 
	OS-S19
	 	Webservice	 	 	 
	OS-S20
	 	Windows System Management	 	 	 
	OS-S21
	 	Storage Service	 	 	 
	OS-S22
	 	Backup & Archiving	 	 	 
	OS-S23
	 	SAP Basis1	 	 	 
	OS-S24
	 	BS2000 Service	 	 	 
	BT-A1
	 	Business to Business	 	 	 
	BT-A2
	 	Customer Relation Management	 	 	 
	BT-A3
	 	Resource Planning and Simulation	 	 	 
	BT-A4
	 	External Order Management	 	 	 
	BT-A5
	 	Provision of i2-Licences	 	 	 
	BT-A6
	 	Information and Knowledge Management	 	 	 
	BT-A7
	 	Integration	 	 	 
	BT-A8
	 	Internal Order Management	 	 	 
	BT-A9
	 	IT-Support of Financial Processes	 	 	 
	BT-A10
	 	IT-Support of Human Resources	 	 	 
	BT-A11
	 	Lotus Notes	 	 	 
	BT-A12
	 	Master Data	 	 	 
	BT-A13
	 	Purchasing	 	 	 
	BT-A14
	 	SAP-Platform	 	 	 
	BT-A15
	 	Shipment & Warehouse	 	 	 
	BT-A16
	 	IT-Support of Research & Development	 	 	 
	MFG-MBI1
	 	Finance Reporting	 	 	 
	MFG-MBI2
	 	Human Resource Reporting	 	 	 
	MFG-MBI3
	 	Logistics Reporting	 	 	 
	MFG-MBI4
	 	SAP BI Platform Management	 	 	 
	MFG-MBI5
	 	Corporate MBI Service	 	 	 
	MFG-MDA1
	 	Quality Reporting & Analysis	 	 	 






For futher details about the
Shared IT Services, please refer to the separate worksheets for each
individual service.



24