TECHNOLOGY TRANSFER AND LICENSE AGREEMENT FOR 68-50nm PROCESS NODES
EXHIBIT 10.55
[***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A R EQUEST FOR CONFIDENTIAL TREATMENT
Micron
NTC CONFIDENTIAL
FOR
68-50nm PROCESS NODES
This
TECHNOLOGY TRANSFER AND LICENSE
AGREEMENT FOR 68-50nm PROCESS NODES (this “Agreement”), is made and
entered into as of this 21st day of April, 2008 (“Effective Date”), by and
between Micron Technology, Inc., a Delaware corporation (“Micron”), and Nanya Technology
Corporation (Nanya
Technology Corporation [Translation from Chinese]), a company
incorporated under the laws of the Republic of China (“NTC”). (Micron and
NTC are referred to in this Agreement individually as a “Party” and collectively as the
“Parties”).
RECITALS
A. Micron
has developed technology for 68nm and 50nm Process Nodes for the manufacture of
Stack DRAM Products.
B. NTC
desires to have such technology transferred to NTC for its use in the
manufacture of Stack DRAM Products, and Micron intends to so transfer such
technology to NTC and license NTC thereunder.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises and agreements herein set
forth, the Parties, intending to be legally bound, hereby agree as
follows.
ARTICLE
1
DEFINITIONS; CERTAIN
INTERPRETATIVE MATTERS
1.1 Definitions.
“Adjusted Revenues”
means[***].
“Affiliate” means, with respect
to any specified Person, any other Person that directly or indirectly, including
through one or more intermediaries, controls, or is controlled by, or is under
common control with such specified Person; and the term “affiliated” has a meaning
correlative to the foregoing.
“Agreement” shall have the
meaning set forth in the preamble to this Agreement.
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“Applicable Law” means any
applicable laws, statutes, rules, regulations, ordinances, orders, codes,
arbitration awards, judgments, decrees or other legal requirements of any
Governmental Entity.
“BEOL Costs” means
[***].
“Commodity Stack DRAM Products”
means Stack DRAM Products for system main memory for computing or Mobile
Devices, in each case that are fully compliant with one or more Industry
Standard(s).
“Confidential Information”
means that information described in Section 8.1 deemed to
be “Confidential Information” under the Mutual Confidentiality
Agreement.
“Control” (whether capitalized
or not) means the power or authority, whether exercised or not, to direct the
business, management and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, which
power or authority shall conclusively be presumed to exist upon possession of
beneficial ownership or power to direct the vote of [***] of the votes entitled
to be cast at a meeting of the members, shareholders or other equity holders of
such Person or power to control the composition of a majority of the board of
directors or like governing body of such Person; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“DRAM Product” means any
stand-alone semiconductor device that is a dynamic random access memory device
and that is designed or developed primarily for the function of storing data, in
die, wafer or package form.
“Effective Date” shall have the
meaning set forth in the preamble to this Agreement.
“Force Majeure Event” means the
occurrence of an event or circumstance beyond the reasonable control of a Party
and includes, without limitation, (a) explosions, fires, flood, earthquakes,
catastrophic weather conditions, or other elements of nature or acts of God; (b)
acts of war (declared or undeclared), acts of terrorism, insurrection, riots,
civil disorders, rebellion or sabotage; (c) acts of federal, state, local or
foreign Governmental Entity; (d) labor disputes, lockouts, strikes or other
industrial action, whether direct or indirect and whether lawful or unlawful;
(e) failures or fluctuations in electrical power or telecommunications service
or equipment; and (f) delays caused by the other Party or third-party
nonperformance (except for delays caused by a Party’s Contractors,
subcontractors or agents).
“Foundry Customer” means a
Third Party customer for Stack DRAM Products [***].
“Foundry Customer Adjusted
Revenues” means [***].
“Foundry Customer Products”
means [***].
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“Governmental Entity” means any
governmental authority or entity, including any agency, board, bureau,
commission, court, municipality, department, subdivision or instrumentality
thereof, or any arbitrator or arbitration panel.
“Gross Revenues” means,
[***].
“Industry Standard” means the
documented technical specifications that set forth the pertinent technical and
operating characteristics of a DRAM Product if such specifications are publicly
available for use by DRAM manufacturers, and if [***].
“IP Rights” means copyrights,
rights in trade secrets, Mask Work Rights and pending applications or
registrations of any of the foregoing anywhere in the world. The term
“IP Rights” does not include any Patent Rights or rights in
trademarks.
“Mask Work Rights" means rights
under the United States Semiconductor Chip Protection Act of 1984, as amended
from time to time, or under any similar equivalent laws in countries other than
the United States.
“Micron” shall have the
meaning set forth in the preamble to this Agreement.
“Micron IP Royalties” mean
[***].
“Mobile Device” means a
handheld or portable device using as its main memory one or more Stack DRAM
Products that is/are compliant with an Industry Standard and [***].
“NTC Products” means
[***].
“NTC Qualified Fab” means
[***].
“Patent Rights” means all
rights associated with any and all issued and unexpired patents and pending
patent applications in any country in the world, together with any and all
divisionals, continuations, continuations-in-part, reissues, reexaminations,
extensions, foreign counterparts or equivalents of any of the foregoing,
wherever and whenever existing.
“Probe Testing” means testing,
using a wafer test program as set forth in the applicable specifications, of a
wafer that has completed all processing steps deemed necessary to complete the
creation of the desired Stack DRAM integrated circuits in the die on such wafer,
the purpose of which test is to determine how many and which of the die meet the
applicable criteria for such die set forth in the specifications.
“Process Node” means
[***].
“Recoverable Taxes” shall have
the meaning set forth in Section
4.8(a).
“Stack DRAM” means dynamic
random access memory cell that functions by using a capacitor arrayed
predominantly above the semiconductor substrate.
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“Stack DRAM Module” means one
or more Stack DRAM Products in a JEDEC-compliant package or module (whether as
part of a SIMM, DIMM, multi-chip package, memory card or other memory module or
package).
“Stack DRAM Product” means any
memory comprising Stack DRAM, whether in die or wafer form.
“Tax” or “Taxes” means any federal,
state, local or foreign net income, gross income, gross receipts, sales, use ad
valorem, transfer, franchise, profits, service, service use, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property,
customs, duties or other type of fiscal levy and all other taxes, governmental
fees, registration fees, assessments or charges of any kind whatsoever, together
with any interest and penalties, additions to tax or additional amounts imposed
or assessed with respect thereto.
“Taxing Authority” means any
Governmental Entity exercising any authority to impose, regulate or administer
the imposition of Taxes.
“Third Party” means any Person
other than NTC or Micron.
“Transferred Technology” means
[***].
1.2 Certain Interpretive
Matters.
(a) Unless
the context requires otherwise, (1) all references to Sections, Articles,
Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
Appendices or Schedules of or to this Agreement, (2) each accounting term
not otherwise defined in this Agreement has the meaning commonly applied to it
in accordance with GAAP, (3) words in the singular include the plural and
vice versa, (4) the term “including” means “including
without limitation,” and (5) the terms “herein,” “hereof,” “hereunder” and words of
similar import shall mean references to this Agreement as a whole and not to any
individual section or portion hereof. Unless otherwise denoted, all
references to $ or dollar amounts will be to lawful currency of the United
States of America. All references to “day” or “days” will mean calendar
days.
(b) No
provision of this Agreement will be interpreted in favor of, or against, either
Party by reason of the extent to which (1) such Party or its counsel
participated in the drafting thereof or (2) any such provision is inconsistent
with any prior draft of this Agreement or such provision.
ARTICLE
2
LICENSE
GRANT
2.1 Micron Grant to
NTC. Subject to the terms and conditions of this Agreement,
Micron grants to NTC a [***] license to [***]:
(a) [***]
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(b) [***]
2.2 [***].
ARTICLE
3
TRANSFER OF
TECHNOLOGY
3.1 Delivery of Micron
Transferred Technology to NTC. Starting promptly after the
Effective Date and ending no later than [***] after the Effective Date, to the
extent not previously delivered, Micron shall deliver to NTC [***] as of the
Effective Date, using delivery methods commonly used in the industry and in
accordance with Micron’s typical technology transfer process used between its
own facilities, which process is outlined on Schedule
3. Except as provided in Section 3.2, the
foregoing obligation does not require Micron to create, make, adapt, develop,
modify and/or translate any such information or materials. NTC may at
any time request Micron in writing to supplement its prior disclosures of such
Transferred Technology with any items NTC believes to be missing or incomplete
from such disclosures; however, with respect to the subject matter of any such
requests made after [***] after the date that Micron notifies NTC that its
delivery obligation is complete, [***].
3.2 Preproduction
Wafers. Within [***] after the Effective Date, Micron shall,
[***], provide to NTC [***]. On a schedule mutually agreed, Micron
shall, [***], provide to [***].
3.3 Engineering
Services. As reasonably requested by NTC from time to time and
to the extent fulfilling such request would not cause disruption of Micron’s
operations, Micron will provide to NTC engineering support for its
implementation of the Transferred Technology in NTC Qualified Fabs.
ARTICLE
4
PRICES AND
PAYMENTS
4.1 License
Fees. For the rights granted to NTC under the Transferred
Technology, Micron shall invoice NTC for the amounts set forth on Schedule 4,
and NTC shall pay the amount due thereon upon the later of: (a) the
date when each such amount becomes due as indicated on Schedule 4 and (b)
thirty (30) days after the date of invoice.
4.2 Royalties for Transferred
Technology.
(a) In
addition to the amounts due for the transfer of Transferred Technology under
Section 4.1,
NTC shall pay to Micron [***].
(b) In
addition to the amounts due for the transfer of Transferred Technology under
Section 4.1,
NTC shall pay to Micron [***].
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(c) If
a Stack DRAM Product or Stack DRAM Module originally manufactured by a NTC
Qualified Fab is sold or otherwise transferred to an Affiliate of NTC
[***].
(d) Micron
IP Royalties payable under this Section 4.2 are due
only for [***]
4.3 Royalty Reporting and
Payment. Within sixty (60) days following[***] for so long as
any Micron IP Royalties are payable hereunder, NTC shall submit to Micron a
written report, which is certified by NTC’s chief financial officer as complete
and correct, setting forth in reasonable detail, [***]. NTC shall pay
to Micron all Micron IP Royalties due for such [***] contemporaneously with the
submission of such report in accordance with Section
4.6.
4.4 Audit Rights and
Records. Micron shall have the right to have an independent
Third Party auditor audit [***], upon reasonable advance written notice, during
normal business hours and on a confidential basis subject to an obligation of
confidentiality, all records and accounts of NTC relevant to the calculation of
Micron IP Royalties in the three (3) year period immediately preceding the
date of the audit; provided
however, NTC shall not be obligated to provide any records and book of
accounts existing prior to the Effective Date. NTC shall, for at
least a period of three (3) years from the date of their creation, keep complete
and accurate records and books of accounts concerning all transactions relevant
to calculation of Micron IP Royalties in sufficient detail to enable a complete
and detailed audit to be conducted. [***].
4.5 Engineering Service
Fees. Micron shall charge NTC for any engineering services
provided by Micron to NTC under Section 3.3 for
[***]. If any employee(s) of Micron are required to provide such
services at a location other than his/her/their normal working location, then
[***]. Micron will invoice NTC for all such costs and expenses
monthly as incurred. NTC will pay Micron the amount due within thirty
(30) days of receipt of invoice.
4.6 Reports and Invoices;
Payments.
(a) All
reports and invoices under this Agreement may be sent by any method described in
Section 9.1 or
electronically with hardcopy confirmation sent promptly thereafter by any method
described in Section
9.1. Such reports and invoices should be sent to the following
contacts or such other contact as may be specified hereafter pursuant to a
notice sent in accordance with Section
9.1:
(i) Invoices to
NTC:
[***]
Nanya
Technology Corp.
Hwa-Ya
Technology Park ▇▇▇, ▇▇▇▇▇▇▇ ▇ ▇▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, R. O.
C.
Fax: [***]
E-Mail: [***]
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(ii) Reports to
Micron:
[***]
▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇
P.O. Box
6, MS ▇-▇▇▇
▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: [***]
Email: [***]
(b) All
amounts owed by a Party under this Agreement are stated, calculated and shall be
paid in United States Dollars ($ U.S.).
(c) Payment
is due on all amounts properly invoiced within thirty (30) days of receipt of
invoice. All payments made under this Agreement shall be made by wire
transfer to a Micron bank account designated by the following person or by such
other person designated by notice:
Payments to
Micron:
[***]
▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇
P.O. Box
6, MS ▇-▇▇▇
▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: [***]
Email: [***]
4.7 Interest. Any
amounts payable to Micron hereunder and not paid within the time period provided
shall accrue interest, from the time such payment was due until the time payment
is actually received, at the rate of [***] or the highest rate permitted by
Applicable Law, whichever is lower.
4.8 Taxes.
(a) All
sales, use and other transfer Taxes imposed directly on or solely as a result of
the services, rights licensed or technology transfers or the payments therefor
provided herein shall be stated separately on the service provider’s, licensor’s
or technology transferor’s invoice, collected from the service recipient,
licensee or technology transferee and shall be remitted by service provider,
licensor or technology transferor to the appropriate Taxing Authority (“Recoverable Taxes”), unless
the service recipient, licensee or technology transferee provides valid proof of
tax exemption prior to the Effective Date or otherwise as permitted by law prior
to the time the service provider, licensor or technology transferor is required
to pay such taxes to the appropriate Taxing Authority. When property
is delivered, rights granted and/or services are provided or the benefit of
services occurs within jurisdictions in which collection and remittance of Taxes
by the service recipient, licensee or technology transferee is required by law,
the service
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recipient,
licensee or technology transferee shall have sole responsibility for
payment of said Taxes to the appropriate Taxing Authority. In the
event any Taxes are Recoverable Taxes and the service provider, licensor or
technology transferor does not collect such Taxes from the service recipient,
licensee or technology transferee or pay such Taxes to the appropriate
Governmental Entity on a timely basis, and is subsequently audited by any Taxing
Authority, liability of the service recipient, licensee or technology transferee
will be limited to the Tax assessment for such Recoverable Taxes, with no
reimbursement for penalty or interest charges or other amounts incurred in
connection therewith. Except as provided in Section 4.8(b), Taxes
other than Recoverable Taxes shall not be reimbursed by the service recipient,
licensee or technology transferee, and each Party is responsible for its own
respective income Taxes (including franchise and other Taxes based on net income
or a variation thereof), Taxes based upon gross revenues or receipts, and Taxes
with respect to general overhead, including but not limited to business and
occupation Taxes, and such Taxes shall not be Recoverable Taxes.
(b) In
the event that the service recipient, licensee or technology transferee is
prohibited by Applicable Law from making payments to the service provider,
licensor or technology transferor unless the service recipient, licensee or
technology transferee deducts or withholds Taxes therefrom and remits such Taxes
to the local Taxing Authority, then the service recipient, licensee or
technology transferee shall duly withhold and remit [***].
4.9 [***]. Notwithstanding
anything to the contrary in this Agreement, if requested by Micron by notice in
accordance with Section 9.1, NTC will
[***] until notified by Micron in accordance with Section
9.1.
ARTICLE
5
OTHER INTELLECTUAL PROPERTY
MATTERS
5.1 Intellectual Properties
Retained. [***].
ARTICLE
6
WARRANTIES;
DISCLAIMERS
6.1 No Implied Obligation or
Rights. Nothing contained in this Agreement shall be
construed as:
(a) a
warranty or representation that any manufacture, sale, lease, use or other
disposition of any products based upon any of the IP Rights licensed or
technology transferred hereunder will be free from infringement,
misappropriation or other violation of any Patent Rights, IP Rights or other
intellectual property rights of any Person;
(b) an
agreement to bring or prosecute proceedings against Third Parties for
infringement, misappropriation or other violation of rights or conferring any
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right to
bring or prosecute proceedings against Third Parties for infringement,
misappropriation or other violation of rights; or
(c) conferring
any right to use in advertising, publicity, or otherwise, any trademark, trade
name or names, or any contraction, abbreviation or simulation thereof, of either
Party.
6.2 Third Party
Software. Exploitation of any of the rights licensed or
technology transferred hereunder may require use of Software owned by a Third
Party and not subject to any license granted under any of the Joint Venture
Documents. Nothing in this Agreement shall be construed as granting
to any Party, any right, title or interest in, to or under any Software owned by
any Third Party. Except as may be specified otherwise in any of the
other Joint Venture Documents, any such Software so required is solely the
responsibility of the each of the Parties. Moreover, should a Party
who transfers technology under this Agreement discover after such transfer that
it has provided Software to the other Party that it was not entitled to provide,
such providing Party shall promptly notify the other Party and the recipient
shall return such Software to the providing Party and not retain any copy
thereof.
6.3 Disclaimer. [***].
ARTICLE
7
LIMITATION OF
LIABILITY
7.1 LIMITATION OF
LIABILITY. [***]
ARTICLE
8
TERM AND
TERMINATION
8.1 Term. The
term of this Agreement commences on the Effective Date and continues in effect
until terminated by mutual agreement or as contemplated in another agreement
between the Parties or otherwise.
8.2 Termination. In
the event NTC commits a material breach of this Agreement and such breach
remains uncured for more than [***] after notice of the breach, Micron may
terminate this Agreement by notice to NTC.
8.3 Effects of
Termination.
(a) Termination
of this Agreement hereunder shall not affect any of the Parties’ respective
rights accrued or obligations owed before termination. In addition,
the following shall survive termination for any reason: Articles 1, 5, 6, 7 and 9 and Sections 4.3
through 4.8 and 8.3.
(b) Upon
termination of this Agreement, NTC shall:
[***]
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ARTICLE
9
MISCELLANEOUS
9.1 Notices. All
notices and other communications hereunder shall be in writing and shall be
deemed given upon (a) transmitter’s confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, or (c) delivery in person, addressed at the following
addresses (or at such other address for a party as shall be specified by like
notice):
If to
NTC: Nanya
Technology Corporation
Hwa-Ya Technology Park
669
Fuhsing 3 RD. Kueishan
Taoyuan, Taiwan, ROC
Attention: Legal
Department
Fax: ▇▇▇.▇.▇▇▇.▇▇▇▇
If to
Micron: Micron
Technology, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇
Mail Stop ▇-▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General
Counsel
Fax: ▇▇▇.▇▇▇.▇▇▇▇
9.2 Waiver. The
failure at any time of a Party to require performance by the other Party of any
responsibility or obligation required by this Agreement shall in no way affect a
Party’s right to require such performance at any time thereafter, nor shall the
waiver by a Party of a breach of any provision of this Agreement by the other
Party constitute a waiver of any other breach of the same or any other provision
nor constitute a waiver of the responsibility or obligation itself.
9.3 Assignment. [***]
9.4 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
9.5 Force
Majeure. The Parties shall be excused from any failure to
perform any obligation hereunder to the extent such failure is caused by a Force
Majeure Event.
9.6 Choice of
Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware, USA, without
giving effect to the principles of conflict of laws thereof.
9.7 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 a state or federal court of competent jurisdiction
located in the State of
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California,
USA, and each of the Parties to this Agreement hereby consents and submits to
the exclusive jurisdiction of such courts (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.
9.8 Headings. The
headings of the Articles and Sections in this Agreement are provided for
convenience of reference only and shall not be deemed to constitute a part
hereof.
9.9 Export
Control. Each Party agrees that it will not
knowingly: (a) export or re-export, directly or indirectly, any
technical data (as defined by the U.S. Export Administration Regulations)
provided by the other Party or (b) disclose such technical data for use in, or
export or re-export directly or indirectly, any direct product of such technical
data, including Software, to any destination to which such export or re-export
is restricted or prohibited by United States or non-United States law,
without obtaining prior authorization from the U.S. Department of Commerce and
other competent Government Entities to the extent required by Applicable
Laws.
\
9.10 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 in all other respects. Should any provision of this
Agreement be or become ineffective because of changes in Applicable Laws 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.
9.11 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 page follows >
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IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the
Effective Date.
MICRON
TECHNOLOGY, INC.
By: /s/ D. ▇▇▇▇
▇▇▇▇▇▇
Name: D.
▇▇▇▇ ▇▇▇▇▇▇
Title:
President and Chief Operating Officer
NANYA
TECHNOLOGY CORPORATION
By: /s/ ▇▇▇
▇▇▇▇
Name: ▇▇▇
▇▇▇▇
Title:
President
THIS
IS THE SIGNATURE PAGE FOR THE TECHNOLOGY TRANSFER
AND
LICENSE AGREEMENT ENTERED INTO BY AND BETWEEN MICRON AND NTC
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Schedule
1
Transferred
Technology—Process Nodes
[***]
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Schedule
2
Transferred
Technology—Designs
[***]
(
)
Schedule 2
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Schedule
3
Staged Process Flow for
Technology Transfer
[***]
Schedule 3
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Schedule
4
License Fees and Payment
Schedule
[***]
Schedule 4
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