First Amendment To The Foundry Agreement Semiconductor MFG Intl Corporation

Exhibit 10.2


CONFIDENTIAL


FIRST AMENDMENT TO

FOUNDRY AGREEMENT

THIS FIRST AMENDMENT is by and between SPANSION LLC , a limited liability company organized in the State of Delaware, having its principal place of business at 915 DeGuigne Drive, Sunnyvale, California, 94088-3453, on behalf of itself and its Affiliates (hereinafter referred to as " Spansion" ), and Semiconductor Manufacturing International Corporation, a Cayman Islands company, having its principal place of business at 18 Zhangjiang Road, Pudong New Area, Shanghai, P.R.C. Zip: 201203, on behalf of itself and its Affiliates, including without limitation the Facilities (as defined in the Foundry Agreement) (hereinafter called " SMIC" ).

RECITALS WHEREAS , Spansion and SMIC wish to modify the Foundry Agreement dated August 31 st , 2007, between the parties hereto, (hereinafter the " Agreement" );

NOW THEREFORE , in consideration of the promises and mutual covenants of the parties, it is agreed that the Agreement shall be modified as follows: 1. Section 18.1 (Term of Agreement) is hereby deleted in its entirety and replaced with the following: This Agreement shall be effective as of the Effective Date and will continue until [*******] (the " Term" ). The Term is renewable for additional terms of one year each by mutual agreement. Except for terms stipulated in Exhibit B2 (ORNAND2 Product Supplement), both parties agree to re-negotiate the terms and conditions in this Agreement in good faith and in a fair and reasonable manner three (3) months prior to the expiration of the original Term, [*******]. If there is no agreement on the terms and conditions before [*******], SMIC may notify Spansion in writing to terminate the Supply Commitment set forth in Exhibit B2 without liability, or Spansion may notify SMIC in writing to terminate the Minimum Loading Commitment set forth in Exhibit B2 without liability. Such termination by either party shall be effective [*******] from either SMIC providing notice of termination of this Supply Commitment, or from Spansion providing notice of termination of this Minimum Loading Commitment. For clarification, in case of any discrepancy between the Agreement and Exhibit B2, Exhibit B2 shall prevail. 2. SMIC acknowledges the effectiveness of Exhibit B2 signed by it and its subsidiary, Semiconductor Manufacturing International (Shanghai) Corporation (" SMIC Shanghai" ) and agrees to be jointly and severally liable to Spansion for breach of the Agreement by SMIC Shanghai. Spansion Inc. acknowledges the effectiveness of Exhibit B2 signed by it and its subsidiary, Spansion LLC and agrees to be jointly and severally liable to SMIC for breach of the Agreement by Spansion LLC.


[*******] Confidential treatment requested.


Page 1


CONFIDENTIAL


The parties agree that except as amended in the manner specified above, all remaining provisions of the Agreement shall continue in full force and effect.

THIS FIRST AMENDMENT has been signed by the duly-authorized representatives of the parties (or their designees) in two identical copies of which each party has taken one.


Semiconductor Manufacturing

International Corporation, Ltd. SPANSION INC. /s/ Richard R. Gin Chang /s/ Bertrand F. Cambou Authorized Signature Authorized Signature Richard R. Gin Chang Bertrand F. Cambou Name Name President & CEO CEO Title Title August 15, 2008 August 12, 2008 Date Date


Semiconductor Manufacturing

International (Shanghai) Corporation SPANSION LLC /s/ Richard R. Gin Chang /s/ Bertrand F. Cambou Authorized Signature Authorized Signature Richard R. Gin Chang Bertrand F. Cambou Name Name President & CEO CEO Title Title August 15, 2008 August 12, 2008 Date Date


Page 2

EXHIBIT B2

PRODUCT SUPPLEMENT FORM

1. Project

The project will entail deployment and manufacturing of Spansion MirrorBitae ORNAND299 products at 43nm [*******], and follow-on Charge Trapping based flash memory technologies.

2. SPANSION PRODUCT SPECIFICATIONS Specifications of Spansion MirrorBitae ORNAND299 Products at 43nm will be provided as part of the Deliverables described in Appendix A. Spansion will provide specifications for Spansion MirrorBitae ORNAND299 Products at [*******] and follow-on Spansion Charge Trapping based flash memory technologies as such products are developed.

3. FACILITY

Spansion and SMIC will undertake deployment of Spansion MirrorBitae ORNAND299 products, directly into the 300mm facility of Wuhan, China (" Fab 12" ), where Spansion MirrorBitae ORNAND299 at 43nm [*******] products and follow-on Spansion Charge Trapping based flash memory technologies will be manufactured by SMIC or SMIC' s subcontractors approved by Spansion in writing and provided that SMIC guarantees the performance of such subcontractors and shall be liable to Spansion for any acts or omissions of such subcontractors. Subject to the foregoing, Spansion agrees Wuhan Xin-Xin Semiconductor Manufacturing Corporation Ltd. is an approved subcontractor.

4. SCHEDULE

The parties mutually agree on the following schedule for deployment, production, and qualification of Spansion MirrorBitae ORNAND299 products at 43nm [*******]. A schedule for follow-on Charge Trapping based flash memory technologies will be discussed and agreed to by the parties.

43nm Technology

Milestones: Full Flow Capability [*******] First Full Flow Wafer Start [*******] Wafers Risk Production Start: [*******] Fully Qualified Production Wafer Start [*******]

The current plan is to launch approximately [*******] different product mask sets at 43nm.

[*******] Technology

Milestones: Full Flow Capability: [*******] Wafers Risk Production Start: [*******]

Production ramp up of [*******] shall be negotiated as part of the future pricing discussions.


[*******] Confidential treatment requested.


3

The Parties agree that the Milestones above may be dependent on timely provision of the Deliverables as described in Appendix A. To the extent a Milestone is dependent on a Spansion Deliverable and Spansion' s delay in providing such Deliverable causes a delay in SMIC' s meeting such Milestone, the Milestone will be adjusted on a day for day basis, provided that such adjustment shall not occur if Spansion' s delay in providing a Deliverable is caused by SMIC' s delay in providing a Deliverable to Spansion. 5. SMIC QUALIFICATION PLAN

SMIC qualification plan shall be jointly determined by Spansion and SMIC, provided that such plan shall comply with Spansion' s F00-002 Product Management Policy as listed in Appendix B, as such policy is updated by Spansion from time to time. 6. QUALIFICATION AND RELIABILITY SPECIFICATIONS

The Wuhan facility shall be ISO/TS 16949:2002 certified. Except as otherwise agreed in writing by the Parties, SMIC' s qualification and manufacturing of Spansion Contract Wafers shall comply with Spansion' s F01-002 Product Management System specifications as listed in Appendix C, as such specifications are updated by Spansion from time to time.

7. SITE VISITS

Spansion may send its employees or customers to visit the production facilities of SMIC' s delegates & subcontractors (including Fab12) to inspect fabrication of products and conduct other activities contemplated by this Product Supplement. Such visits shall be conducted during normal working hours. While visiting such facilities, the visitor shall at all times fully comply with plant rules and regulations, as well as all reasonable instructions that may be issued by employees and personnel of SMIC' s delegates & subcontractors accompanying such visitor.

8. COSTS

Spansion and SMIC will be responsible for the funding of the portions of the activities as follows:

a. Spansion will be responsible for process and product development costs except provided in paragraph b below. b. SMIC will be responsible for all pre-production costs and wafer costs incurred prior to product qualification starts as described in section 7.1 of the Foundry Agreement.

c. Spansion will be responsible for the cost of mask sets for product development and production. Spansion may request that SMIC provides masks in which case the parties would negotiate acceptable costs and such costs may be incorporated into wafer price. In case of mask errors: SMIC will pay the revision mask fee if the mask error is caused by SMIC; Spansion will pay the revision mask fee if the mask error is caused by Spansion; for the unidentified mask error, Spansion and SMIC shall share the revision mask fee.


4 9. CAPACITY RAMP-UP PLAN:

SMIC will install in a timely manner sufficient manufacturing capacity to meet the initial volume ramp up of Spansion MirrorBitae ORNAND299 products at 43nm [*******], in the 300nm facility of Wuhan, China (" Fab 12" ):

ullet

[*******]

ullet

[*******]

ullet

[*******]

ullet

[*******]

The capacity ramp-up plan above should be adjusted accordi ...