FACILITATION AGREEMENT
EXHIBIT
10.73
[***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
This
FACILITATION AGREEMENT (the “Agreement”), dated this 26th
day of November, 2008, is made and entered into by and between MICRON
SEMICONDUCTOR B.V. (hereinafter “MNL”), a private limited
liability company organized under the laws of the Netherlands, NANYA TECHNOLOGY
CORPORATION Nanya Technology Corporation
[Translation from Chinese] (hereinafter “NTC”), a company incorporated
under the laws of the Republic of China, and INOTERA MEMORIES, INC. Inotera Memories Inc.
[Translation from Chinese], (hereinafter “Joint Venture Company”), a
company incorporated under the laws of the Republic of China.
RECITALS
A. Micron
and NTC have entered into that certain Joint Venture Agreement, dated of even
date herewith (the “JV
Agreement”), which sets forth certain agreements regarding the ownership,
governance and operation of the Joint Venture Company.
B. Micron
and NTC desire the Joint Venture Company to enter into this Agreement in order
to fully effectuate the intent of the parties to the JV Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, do hereby agree as follows:
1. Joint Venture
Agreement. The Joint Venture Company shall do, cause to be
done, or otherwise facilitate any actions that, under the following provisions
of the JV Agreement, either (x) the JV Parties have agreed the Joint Venture
Company shall do or (y) the JV Parties have agreed (through commercially
reasonable efforts, best efforts or otherwise) to cause the Joint Venture
Company to do:
(a) Sections
2.1(b) and (c);
(b) Section
2.3 (but with respect to clause (b) of Section 2.3 only compliance with the
provisions of the JV Agreement specifically referenced in this Section
1);
(c) Sections
5.1(e), 5.1(f)(iii), 5.3(d) and (e), 5.4(a) – (c) and 5.5;
(d) Sections
7.1(a) (but subject to obtaining the required approval of the Board of
Directors), 7.2(a) and (c), 7.3, 7.4 and 7.5;
(e) Sections
8.1 – 8.3;
(f) Article
10 (but with respect to Section 10.4, subject to obtaining the required
approvals of the Board of Directors and shareholders of the Joint Venture
Company); and
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(g) Sections
11.1, 11.2, 11.4 and 11.5 (but with respect to Section 11.5, subject to
obtaining any approvals of the shareholders of the Joint Venture Company
required by Applicable Law or the Articles of Incorporation of the Joint Venture
Company).
2. Vice-Chairman. Subject
to obtaining the required approvals of the Board of Directors and shareholders
of the Joint Venture Company, the Joint Venture Company shall take reasonable
steps as soon as practicable to amend the Articles of Incorporation to provide
that (a) there shall be a Vice-Chairman of the Board of Directors, (b) unless
expressly prohibited by Applicable Law, if the Chairman does not, within one
week (or within three (3) days for convening an emergency meeting of the Board
of Directors), comply with a director’s request for the Chairman to convene a
meeting of the Board of Directors, the Vice-Chairman shall have the right to
convene the meeting of the Board of Directors as requested by such director, and
(c) emergency meetings of the Board of Directors may be convened from time
to time by the Chairman, or (unless expressly prohibited by Applicable Law) the
Vice-Chairman pursuant to the immediately preceding clause (b), by not less than
two (2) Business Days notice in writing.
3. Purchase of
Shares. Prior to the issuance by the Joint Venture Company of
Shares or any other equity-linked securities of the Joint Venture Company, each
JV Party shall provide to the Joint Venture Company a true and complete list of
the Affiliates of such JV Party as of such date (the “Listed
Affiliates”). Except as required by Applicable Law, the Joint
Venture Company shall not issue Shares or any other equity-linked security of
the Joint Venture Company, directly or indirectly, to any Listed Affiliate
without the prior written consent of both JV Parties.
4. [***]
5. General
Provisions.
(a) Defined
Terms. Capitalized terms used herein but not otherwise defined
shall have the meaning ascribed to such terms in the JV Agreement.
(b) Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed duly given upon (i) transmitter’s confirmation of a receipt of a
facsimile transmission, (ii) confirmation of delivery by a standard overnight or
recognized international carrier, or (iii) delivery in person, addressed at the
following addresses (or at such other address for a JV Party as shall be
specified by like notice):
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NTC/MICRON
CONFIDENTIAL
if to
NTC:
Nanya
Technology Corporation
Hwa-Ya
Technology Park 669
Fuhsing 3
RD. Kueishan
Taoyuan,
Taiwan, ROC
Attn: Legal department
Facsimile:
886-3-396-2226
if to
MNL:
Micron
Semiconductor B.V.
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Attn: Managing
Director
Facsimile: 020-5722650
with a
mandatory copy to Micron:
Micron
Technology, Inc.
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Mail Stop
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Attn:
General Counsel
Facsimile:
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If to the
Joint Venture Company:
Inotera
Memories, Inc.
Hwa-Ya
Technology Park
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Attn:
General Counsel
Facsimile:
886-3-327-2988 Ext. 3385
(c) Waiver. The
failure at any time of a JV Party to require performance by the Joint Venture
Company of any responsibility or obligation required by this Agreement shall in
no way affect a JV Party’s right to require such performance at any time
thereafter, nor shall the waiver by a JV Party of a breach of any provision of
this Agreement by the Joint Venture Company constitute a waiver of any other
breach of the same or any other provision nor constitute a waiver of the
responsibility or obligation itself.
(d) Assignment. [***].
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NTC/MICRON
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(e) Amendment. This
Agreement may not be amended or modified without the written consent of the
parties hereto.
(f) Third Party
Rights. Nothing in this Agreement, whether express or implied,
is intended or shall be construed to confer, directly or indirectly, upon or
give to any Person, other than the parties hereto, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or other provision contained herein.
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the ROC, without giving effect to its conflict of
laws principles.
(h) Jurisdiction;
Venue. Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement shall be brought in the Taipei District Court, located in Taipei,
Taiwan, and each of the parties hereto consents and submits to the exclusive
jurisdiction of such court (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by Applicable Law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum.
(i) Headings. The
headings of the Sections in this Agreement are provided for convenience of
reference only and shall not be deemed to constitute a part hereof.
(j) Entire
Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof.
(k) Severability. Should
any provision of this Agreement be deemed in contradiction with the laws of any
jurisdiction in which it is to be performed or unenforceable for any reason,
such provision shall be deemed null and void, but this Agreement shall remain in
full force and effect in all other respects. Should any provision of
this Agreement be or become ineffective because of changes in Applicable Law or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby. If such circumstances
arise, the parties hereto shall negotiate in good faith appropriate
modifications to this Agreement to reflect those changes that are required by
Applicable Law.
(l) Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE
PAGES FOLLOW]
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IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the date
first written above.
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NANYA
TECHNOLOGY CORPORATION
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By:
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/s/ ▇▇▇ ▇▇▇▇
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President
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THIS IS A
SIGNATURE PAGE FOR THE FACILITATION AGREEMENT
ENTERED
INTO BY AND BETWEEN NTC, MNL
AND THE
JOINT VENTURE COMPANY
DLI-6217912v6
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MICRON
SEMICONDUCTOR B.V.
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By:
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Managing
Director A
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ van den
Broek
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Name: ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ van den Broek
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Title Trust
International Management (▇.▇.▇.) B.V.
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Managing
Director B
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THIS IS A
SIGNATURE PAGE FOR THE FACILITATION AGREEMENT
ENTERED
INTO BY AND BETWEEN NTC, MNL
AND THE
JOINT VENTURE COMPANY
DLI-6217912v6
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INOTERA
MEMORIES, INC.
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By:
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇
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Title: Supervisor
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THIS IS A
SIGNATURE PAGE FOR THE FACILITATION AGREEMENT
ENTERED
INTO BY AND BETWEEN NTC, MNL
AND THE
JOINT VENTURE COMPANY
DLI-6217912v6