JOINT DEVELOPMENT PROGRAM AGREEMENT
EXHIBIT 10.54
[***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
Micron
NTC CONFIDENTIAL
This
JOINT DEVELOPMENT PROGRAM
AGREEMENT (this “Agreement”), is made and
entered into as of this 21st day of April, 2008 (“Effective Date”), by and
between Nanya Technology Corporation (Nanya Technology Corporation
[Translation from Chinese]), a company incorporated under the laws of the
Republic of China (“NTC”), and Micron Technology,
Inc., a Delaware corporation (“Micron”). (NTC and
Micron are referred to in this Agreement individually as a “Party” and collectively as the
“Parties”).
RECITALS
A. Pursuant
to the Joint Venture Documents (as defined hereinafter) and the transactions
contemplated thereby, MNL, an Affiliate of Micron and NTC are forming the Joint
Venture Company (as defined hereinafter) for the collaborative manufacture and
sale of Stack DRAM Products exclusively to the Parties.
B. NTC
and Micron desire to engage in joint development of Stack DRAM Designs and
Process Technology (each, as defined hereinafter) on process node of [***], or
on such other design or process technology, the Parties may agree pursuant to
this Agreement. The Parties desire to outline the procedures under which they
will pool their respective resources as provided in this Agreement for the
purpose of performing research and development work relating to Stack DRAM
Designs and Process Technology that will be used by the Joint Venture Company,
by NTC and by Micron, to manufacture Stack DRAM Products.
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. In
addition to the terms defined elsewhere in this Agreement, capitalized terms
used in this Agreement shall have the respective meanings set forth
below:
“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.
DLI-▇▇▇▇▇▇▇▇▇
NTC
Micron CONFIDENTIAL
“Applicable Law” means any
applicable laws, statutes, rules, regulations, ordinances, orders, codes,
arbitration awards, judgments, decrees or other legal requirements of any
Governmental Entity.
“ATE” means automatic test
equipment, such as that sold under the trademark ADVENTEST.
“Burn-In” means
[***].
“Burn-In Document” means a
document that describes the specification of voltage and test pattern settings
in the Burn-In test program. The Burn-In Document also describes the
methodology of how the voltage and test pattern settings are
optimized.
“Business Day” means a day that
is not a Saturday, Sunday or other day on which commercial banking institutions
in either the Republic of China or the State of New York are authorized or
required by Applicable Law to be closed.
“Change of Control” means,
with respect to any first Person, the occurrence of any of the following events,
whether through a single transaction or series of related
transactions: (a) any consolidation or merger of such first Person
with or into another Person in which the holders of such first Person’s
outstanding voting equity immediately before such consolidation or merger do
not, immediately after such consolidation or merger, own or control directly or
indirectly equity representing a majority of the outstanding voting equity of
the surviving Person; (b) the sale of all or substantially all of such first
Person’s assets to another Person wherein the holders of such first Person’s
outstanding voting equity immediately before such sale do not, immediately after
sale, own or control directly or indirectly equity representing a majority of
the outstanding voting equity of the purchaser; or (c) the sale of such first
Person’s voting equity to any other Person(s) wherein the holders of such first
Person’s outstanding voting equity immediately before such sale do not,
immediately after such sale, own or control directly or indirectly equity
representing a majority of the outstanding voting equity of such first
Person.
“Closing” means the remittance
by NTC and MNL of the first capital contribution to the Joint Venture Company as
set forth in Section
2.6 of the Master Agreement.
“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 6.1 deemed to
be “Confidential Information” under the Mutual Confidentiality
Agreement.
“Contractor” means a Third
Party who (a) is contracted by a Party in connection with work to be conducted
by such Party under a SOW, (b) has agreed to assign to such contracting Party
all rights in and to any inventions, discoveries, improvements, processes,
copyrightable works, mask works, trade secrets or other technology that are
conceived or first reduced to practice, whether patentable or not, as a result
of any performance by such Third Party of any obligations of such Party under a
SOW, and all Patent Rights, IP Rights and other intellectual
DLI-▇▇▇▇▇▇▇▇▇
- 2
-
NTC
Micron CONFIDENTIAL
property
rights in the foregoing, and (c) has agreed to grant a license to such
contracting Party, with the right to sublicense of sufficient scope that
includes the other Party, under all Patent Rights, IP Rights and other rights of
the Third Party reasonably necessary for such contracting Party and the other
Party to exploit the work product created by the Third Party consistent with the
rights granted by the contracting Party to the other Party under the Joint
Venture Documents.
“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.
“Coverage Test” means test
solution for module application fail in CP/FT/Module ATE.
“Deadlock Terminating Party”
shall have the meaning set forth in Section III.D.5 of
Schedule
2.
“Design Qualification” means,
[***].
“Design SOW” means
[***].
“Design SOW Costs” means any
and all SOW Costs attributable to a Design SOW in accordance with Schedule
4.
“Draft” means the mechanism
described in Section
5.3 by which either Micron or NTC may select from Pooled Inventions to
solely own.
“Drafting Party” means either
Micron or NTC, as the Party selecting a Pooled Invention pursuant to the
Draft.
“DRAM Module” means one or
more 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).
“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.
“Existing Entity” means
[***].
“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
DLI-▇▇▇▇▇▇▇▇▇
- 3
-
NTC
Micron CONFIDENTIAL
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).
“Foundational Know-How” means,
with respect to each Party, [***].
“Foundry Customer” means a
Third Party customer of either NTC or Micron for Stack DRAM Products
[***].
“FT” means [***].
“GAAP” means, with respect to
Micron, United States generally accepted accounting principles, and with respect
to NTC, Republic of China generally accepted accounting principles, in each
case, as consistently applied by the Party for all periods at
issue.
“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.
“Imaging Product” means any
(a) semiconductor device having a plurality of photo elements (e.g.,
photodiodes, photogates, etc.) for converting impinging light into an electrical
representation of the information in the light, (b) image processor or other
semiconductor device for balancing, correcting, manipulating or otherwise
processing such electrical representation of the information in the impinging
light, or (c) combination of the devices described in clauses (a) and
(b).
“Indemnified Claim” shall have
the meaning set forth in Section
8.2.
“Indemnified Party” shall have
the meaning set forth in Section
8.2.
“Indemnifying Party” shall have
the meaning set forth in Section
8.2.
“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.
“JDP Co-Chairman” and “JDP Co-Chairmen” shall have
the meaning set forth on Schedule
2.
DLI-▇▇▇▇▇▇▇▇▇
- 4
-
NTC
Micron CONFIDENTIAL
“JDP Committee” shall mean the
committee formed and operated by Micron and NTC to govern the performance of the
Parties under this Agreement in accordance with the JDP Committee
Charter.
“JDP Committee Charter” means
the charter attached as Schedule
2.
“JDP Design” means any Stack
DRAM Design resulting from the research and development activities of the
Parties pursuant to this Agreement.
“JDP Inventions” shall mean
all discoveries, improvements, inventions, developments, processes or other
technology, whether patentable or not, that is/are conceived by one or more
Representatives of one or more of the Parties in the course of activities
conducted under this Agreement.
“JDP Process Node” means any
Primary Process Node or Optimized Process Node resulting from the research and
development activities of the Parties pursuant this Agreement.
“JDP Work Product” means
[***].
“Joint Venture Company” means
the company formed and operated in accordance with the Joint Venture
Documents.
“Joint Venture Company Joinder”
means that certain Joinder of the Joint Venture Company to the Mutual
Confidentiality Agreement.
“Joint Venture Documents” means
the Master Agreement and each of the agreements listed on Schedules 2.1 through
2.5 of the
Master Agreement Disclosure Letter.
“Lead Product” means
[***].
“Mask Data Processing” means
[***].
“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.
“Master Agreement” means that
certain Master Agreement by and between NTC and Micron dated as of the Effective
Date.
“Master Agreement Disclosure
Letter” means that certain Master Agreement Disclosure Letter by and
between NTC and Micron dated as of the Effective Date containing the Schedules
required by the Master Agreement.
“Micron” shall have the
meaning set forth in the preamble to this Agreement.
“Micron Indemnitees” shall have
the meaning set forth in Section
8.1.
DLI-▇▇▇▇▇▇▇▇▇
- 5
-
NTC
Micron CONFIDENTIAL
“MNL” means Micron
Semiconductor B.V., a private limited liability company organized under the laws
of the Netherlands.
“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 [***].
“Mutual Confidentiality
Agreement” means (i) prior to the Closing, that certain Mutual
Confidentiality Agreement among NTC, Micron and MNL referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter, and (ii) following the Closing, that certain
Mutual Confidentiality Agreement among NTC, Micron and MNL referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter, as joined by the Joint Venture Company
through the Joint Venture Company Joinder.
“NAND Flash Memory Product”
means a non-volatile semiconductor memory device containing memory cells that
are electrically programmable and electrically erasable whereby the memory cells
consist of one or more transistors that have a floating gate, charge trapping
regions or any other functionally equivalent structure utilizing one or more
different charge levels (including binary or multi-level cell structures), with
or without any on-chip control, I/O and other support circuitry, in wafer, die
or packaged form.
“NTC” shall have the meaning
set forth in the preamble to this Agreement.
“NTC Indemnitees” shall have
the meaning set forth in Section
8.1.
“OPC” means optical proximity
correction of the circuit layout patterns, which is important in Mask Data
Processing.
“Optimized Process Node” means
[***].
“Party” and “Parties” shall have the
meaning set forth in the preamble to this Agreement.
“Patent Prosecution” means (a)
preparing, filing and prosecuting patent applications (of all types), and (b)
managing any interference, reexamination, reissue, or opposition proceedings
relating to the foregoing.
“Patent Review Committee” means
the committee formed by the JDP Committee to [***].
“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.
“Person” means any natural
person, corporation, joint stock company, limited liability company,
association, partnership, firm, joint venture, organization, business, trust,
estate or any other entity or organization of any kind or
character.
[***]
DLI-▇▇▇▇▇▇▇▇▇
- 6
-
NTC
Micron CONFIDENTIAL
[***]
“Post Termination Funding
Period” shall have the meaning set forth in Section III.D.5 of
Schedule
2.
“Primary Process Node” means
[***].
“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
[***].
“Process Qualification” means,
with respect to each Primary Process Node and Optimized Process Node, when (a)
the Stack DRAM Products or Stack DRAM Modules designed to be on the node can be
made fully compliant with any applicable Industry Standard(s) (if any) and [***]
or (b) or such other or additional parameters as may be defined in the Process
SOW as “Process Qualification” for the Primary Process Node or the Optimized
Process Node that is the subject of the SOW, [***].
“Process SOW” means any SOW
primarily directed to the development of Process Technology, including the
development of a Primary Process Node or an Optimized Process Node to be used by
the Joint Venture Company, Micron or NTC in the manufacture of Stack DRAM
Products.
“Process SOW Costs” means
[***].
“Process Technology” means
that process technology developed before expiration of the Term and utilized in
the manufacture of Stack DRAM wafers, including Probe Testing and technology
developed through Product Engineering thereof, regardless of the form in
which any of the foregoing is stored, but excluding any Patent Rights and any
technology, trade secrets or know-how that relate to and are used in any
back-end operations (after Probe Testing).
“Product Engineering” means any
one or more of the engineering activities described on Schedule 7 as applied
to Stack DRAM Products or Stack DRAM Modules.
“Proposing Party” shall have
the meaning set forth in Section
3.2.
“Recoverable Taxes” shall have
the meaning set forth in Section
4.4.
“Rejecting Party” shall have
the meaning set forth in Section
3.2.
“Rejected Development Work”
shall have the meaning set forth in Section
3.2.
“Representative” means with
respect to a Party, any director, officer, employee, agent or Contractor of such
Party or a professional advisor to such Party, such as an attorney, banker or
DLI-▇▇▇▇▇▇▇▇▇
- 7
-
NTC
Micron CONFIDENTIAL
financial
advisor of such Party who is under an obligation of confidentiality to such
Party by contract or ethical rules applicable to such Person.
“R&D Roadmap” has the
meaning provided in Section
2.3.
“Software” means computer
program instruction code, whether in human-readable source code form,
machine-executable binary form, firmware, scripts, interpretive text, or
otherwise. The term “Software” does not include databases and other
information stored in electronic form, other than executable instruction codes
or source code that is intended to be compiled into executable instruction
codes.
“SOW” means a statement of the
work that describes research and development work to be performed under this
Agreement and that has been adopted by the JDP Committee pursuant to Section 3.2.
“SOW Costs” means any or all
costs that are incurred by a Party in connection with any SOW as provided on
Schedule
4.
“Stack DRAM” means dynamic
random access memory cell that functions by using a capacitor arrayed
predominantly above the semiconductor substrate.
“Stack DRAM Design” means, with respect to
a Stack DRAM Product, the corresponding design components, materials and
information listed on Schedule 3 or as
otherwise determined by the JDP Committee in a SOW.
“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.
“Subsidiary” means, with
respect to any specified Person, any other Person that, directly or indirectly,
including through one or more intermediaries, is controlled by such specified
Person.
“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.
DLI-▇▇▇▇▇▇▇▇▇
- 8
-
NTC
Micron CONFIDENTIAL
“Technology Transfer Agreement”
means that certain Technology Transfer Agreement by and among NTC, Micron, and
the Joint Venture Company referred to on Schedule 2.5 of the
Master Agreement Disclosure Letter.
“Technology Transfer and License
Agreement” means that certain Technology Transfer and License Agreement
by and between NTC and Micron referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter.
“TTLA 68-50” means that certain
Technology Transfer and License Agreement For 68-50NM Process Nodes by and
between NTC and Micron referred to on Schedule 2.1 of the
Master Agreement Disclosure Letter.
“Term” shall have the meaning
set forth in Section 9.1.
“Third Party” means any Person
other than NTC or Micron.
“Unit Process/Module
Invention” means JDP Inventions related to one or more process steps that
are performed on a semiconductor wafer and that are designed to achieve a
particular feature characteristic or structure.
“Works Registration” shall have
the meaning set forth in Section
5.4(c).
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
JDP COMMITTEE; R&D
ROADMAP
2.1 JDP Committee; Patent Review
Committee. Micron and NTC shall form and operate the JDP
Committee to govern their performance under this Agreement in accordance with
the JDP Committee Charter attached as Schedule
2. The JDP Committee shall form and oversee the Patent Review
Committee, which shall also operate in accordance with the applicable provisions
of Schedule
2.
DLI-▇▇▇▇▇▇▇▇▇
- 9
-
NTC
Micron CONFIDENTIAL
2.2 JDP
Co-Chairmen. Micron and NTC shall notify the other Party in
writing of the identity of the full-time employee of such Party who will serve
as its JDP Co-Chairman. Each JDP Co-Chairman shall serve on the JDP
Committee as provided in Schedule 2 and shall
devote his or her attention to the performance of this Agreement by the
Parties. Each of Micron and NTC may replace its respective JDP
Co-Chairman upon written notice to the other Party; provided that each Party’s
JDP Co-Chairman must at all times be a full-time employee of such
Party.
2.3 R&D
Roadmap.
(a) [***].
(b) [***].
(c) The
first R&D Roadmap shall contain the Stack DRAM Designs and Process
Technology described in the SOWs identified on Schedule
1.
ARTICLE
3
DEVELOPMENT PROJECTS AND
SOWS
3.1 Content of
SOWs. The Parties expect that each SOW will conform to
the following requirements, as applicable:
(a) Each
SOW will contain at least the following:
[***]
(b) The
Process SOW for each Primary Process Node and each Process SOW effective as of
the Effective Date will specify that the work to be performed thereunder will be
performed [***]
(c) [***]
(d) Process
SOWs for Optimized Process Nodes may specify that the work to be performed
thereunder can be performed [***]
(e) Process
SOWs entered after the Effective Date for work to be performed
[***]
(f)
[***]
(g) [***]
(h) [***]
DLI-▇▇▇▇▇▇▇▇▇
- 10
-
NTC
Micron CONFIDENTIAL
3.2 Proposal and Adoption of
SOWs.
(a) Each
Party solely through its JDP Co-Chairman, or both of the Parties jointly through
the JDP Chairmen, may submit proposed SOWs to the JDP Committee for
consideration and potential adoption as an SOW hereunder. SOWs can be
proposed for the design of products that are not at the time of submission
Commodity Stack DRAM Products.
(b) [***]
(c) The
SOWs identified on Schedule 1 are deemed
SOWs under this Agreement adopted by the JDP Committee as of the Effective
Date.
(d) [***]
3.3 Development Restrictions;
Rejected Development Work.
[***]
3.4 SOW Performance
Monitoring.
[***]
3.5 JDP Committee
Monitoring. [***]
3.6 On-Site
Visitations. Each Party and its Representatives shall observe
and be subject to all safety, security and other policies and regulations
regarding visitors and contractors while on site at a facility of the other
Party or its Affiliate. A Party's Representatives who access any
facility of the other Party or its Affiliate shall not interfere with, and
except as otherwise agreed by the Parties, shall not participate in, the
business or operations of the facility accessed.
3.7 Mask Source Qualification
and Mask Purchases.
(a) [***]
(b) [***]
(c) [***]
3.8 Repository of JDP Work
Product.
(a) Micron
and NTC each shall use commercially reasonable efforts to each establish a
repository in its own facility for storing the JDP Work Product described on
Schedules 3,
7, 8 or 9 separately from
other technology, information and data of such Party and any Third Parties. Each Party shall
implement procedures so that such JDP Work Product is either created in such
repository or added to such repository in the English language promptly after
creation by employees of such Party, its Existing Entities and its wholly-owned
Subsidiaries assigned to an SOW. Such repositories in Micron
facilities shall be accessible to employees of
DLI-▇▇▇▇▇▇▇▇▇
- 11
-
NTC
Micron CONFIDENTIAL
NTC, its
Existing Entities and its wholly-owned Subsidiaries assigned to perform work
under any SOW(s) as reasonably required for such employees to perform their
assigned work. Such repositories in NTC shall be accessible to
employees of Micron, its Existing Entities and its wholly-owned Subsidiaries
assigned to perform work under any SOW as reasonably required for such employees
to perform their assigned work. The JDP Co-Chairmen and JDP Committee
Members shall have full access to such repositories. Once both such
repositories are operational electronic databases that can be synchronized at
least with the other database to contain the same content as that stored in such
other database, the Parties shall use commercially reasonable efforts to have
the databases automatically and electronically synchronized at least once per
day.
(b) Without
limiting the foregoing Section 3.8(a), the
Parties shall also use their respective commercially reasonable efforts to
accomplish the following within the time frames described below:
|
|
(i)
|
Phase
1:
|
|
|
1)
|
Establish
secure network connectivity between Micron and NTC within [***] after the
Effective Date.
|
|
|
2)
|
Establish
secure email between Micron and NTC within [***] after the Effective
Date.
|
|
|
3)
|
Establish
a FTP environment to allow download of data between Micron and NTC within
[***] after the Effective Date.
|
|
|
(ii)
|
Phase
2:
|
|
|
1)
|
Establish
an initial repository for the JDP Work Product described on Schedules 3,
7, 8 or 9 with a
publishing document process between Micron and NTC within [***] after the
Effective Date. The replication process between Micron's and
NTC's repositories would occur
[***].
|
|
|
2)
|
Provide
a single remote access point for approved users within [***] after the
Effective Date. This access point will allow real time equal access to all
individuals assigned to an SOW.
|
|
|
(iii)
|
Phase
3:
|
|
|
1)
|
For
the remote access point from NTC each approved NTC user will be provided
access to approved Micron secured operational applications. The
first group of secured operational applications will be provided within
[***] after the Effective Date.
|
ARTICLE
4
PAYMENTS
4.1 Development Cost
Sharing. Micron and NTC shall share SOW Costs as specified on
Schedule
4.
DLI-▇▇▇▇▇▇▇▇▇
- 12
-
NTC
Micron CONFIDENTIAL
4.2 Payments. All
amounts owed by a Party under this Agreement are stated, calculated and shall be
paid in United States Dollars ($ U.S.).
4.3 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.
4.4 Taxes.
(a) All
sales, use and other transfer Taxes imposed directly on or solely as a result of
the services or technology transfers or the payments therefor provided herein
shall be stated separately on the service provider’s or technology transferor’s
invoice, collected from the service provider or technology transferor and shall
be remitted by service provider or technology transferor to the appropriate
Taxing Authority (“Recoverable
Taxes”), unless the service recipient 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 or technology transferor
is required to pay such taxes to the appropriate Taxing
Authority. When property is delivered and/or services are provided or
the benefit of services occurs within jurisdictions in which collection and
remittance of Taxes by the service recipient or technology transferee is
required by law, the service recipient 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 or technology transferor does not collect such Taxes from the
service recipient 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 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 4.4(b), Taxes
other than Recoverable Taxes shall not be reimbursed by the service recipient 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 or technology transferee is prohibited by
Applicable Law from making payments to the service provider or technology
transferor unless the service recipient or technology transferee deducts or
withholds Taxes therefrom and remits such Taxes to the local Taxing Authority,
[***].
ARTICLE
5
INTELLECTUAL
PROPERTY
5.1 Existing
IP. Nothing in this Agreement shall be construed to transfer
ownership of or grant a license under any IP Rights, Patent Rights or other
intellectual property or technology of a Party existing as of the Effective Date
from one Party to the other Party. Any license to any of the
foregoing shall be governed by the Technology Transfer and License
Agreement.
DLI-▇▇▇▇▇▇▇▇▇
- 13
-
NTC
Micron CONFIDENTIAL
5.2 Pooled Invention Procedures;
Inventorship; Authorship.
(a) Within
forty-five (45) days of the Effective Date, each of the Parties shall introduce
procedures to encourage and govern the submission of disclosures of JDP
Inventions by their respective Representative(s) involved in a SOW, whether as
Representatives of NTC, of Micron or of the Joint Venture Company, to the JDP
Co-Chairmen for subsequent submission to the JDP Committee. Such
procedures shall include (i) a policy statement encouraging the submission of
such invention disclosures, (ii) appropriate invention disclosure forms, and
(iii) a commitment on the part of each of NTC and Micron to obtain relevant
invention disclosure forms from their respective Representatives with respect to
JDP Inventions and to submit such forms for review by the Patent Review
Committee. Each of the Parties shall actively administer such procedures and
submit and cause their respective Representatives promptly to complete and
submit invention disclosures on JDP Inventions to the Patent Review
Committee.
(b) Inventorship
for JDP Inventions shall be determined in accordance with United States
patent laws.
(c) Authorship
for all JDP Work Product, whether registered or not, shall be determined in
accordance with United States copyright laws and laws concerning Mask Work
Rights, as applicable.
5.3 JDP Inventions; Pool and
Draft.
[***]
5.4 Ownership of JDP Inventions
and JDP Work Product.
(a) As
between the Parties, [***]
(b) Except
as provided in Sections 5.3 and
5.4(a), all JDP
Designs, JDP Inventions, JDP Process Nodes, JDP Work Product, and all IP Rights
associated with any of the foregoing, shall be, [***]. Subject to any
applicable provisions of the Joint Venture Documents, each of Micron and NTC may
exploit their interest in any JDP Designs, JDP Inventions, JDP Process Nodes,
JDP Work Product, and IP Rights associated therewith without a duty of
accounting to any other Party.
(c) [***]
5.5 Costs. All
out-of-pocket costs and expenses relating to Patent Prosecution, including
attorneys’ fees, incurred by a Party pursuant to this Agreement shall be borne
solely by the owner thereof. In the case of Works Registrations for
JDP Work Product, such joint owners shall split the costs thereof
equally.
5.6 Cooperation. With
respect to all Patent Prosecution and Works Registration activities under this
Agreement, each Party shall:
(a) execute
all further instruments to document their respective ownership consistent with
this Article 5
as reasonably requested by any other Party, including causing its
DLI-▇▇▇▇▇▇▇▇▇
- 14
-
NTC
Micron CONFIDENTIAL
respective
Representatives to execute written assignments of JDP Inventions and JDP Work
Product to Micron, NTC or both of them jointly as provided herein (at no cost to
the assignee); and
(b) using
commercially reasonable efforts to make its Representatives available to the
other Party (or to the other Party’s authorized attorneys, agents or
Representatives), to the extent reasonably necessary to enable the appropriate
Party hereunder to undertake Patent Prosecution and Works
Registration.
5.7 Third Party
Infringement.
(a) The
sole owner of the Patent Rights with respect to any JDP Invention shall have the
exclusive right to institute and direct legal proceedings against any Third
Party believed to be infringing or otherwise violating any such Patent
Rights.
(b) If
any Party takes action pursuant to Section 5.7(a), then
the other Party shall cooperate to the extent reasonably necessary and at the
first Party’s sole expense and subject to the first Party’s
request. To the extent required by Applicable Law, such other Party
shall join the action and, if such other Party elects, may choose to be
represented in any such legal proceedings using counsel of its own choice, and
at its own expense. Each Party shall assert and not waive the joint
defense privilege with respect to all communications between the Parties
reasonably the subject thereof.
(c) The
Parties shall keep each other informed of the status of any litigation or
settlement thereof initiated by a Third Party concerning a Party’s manufacture,
production, use, development, sale, offer for sale, importation, exportation or
distribution of Stack DRAM Products manufactured by the Joint Venture Company;
provided, however, that
no settlement or consent judgment or other voluntary final disposition of a suit
under this Section 5.7(c)
may be undertaken by a Party without the consent of another Party (which consent
not to be unreasonably withheld) if such settlement would require such other
Party or the Joint Venture Company to be subject to an injunction, subject to a
requirement to alter a Process Node or Stack DRAM Design, admit wrongdoing or
make a monetary payment. The Party sued by the Third Party as
contemplated by this Section shall not object to joinder in such action by the
other Party to the extent such joinder is permitted by Applicable
Law.
5.8 No Other Rights or
Licenses. Except for the allocation of ownership of JDP
Inventions and JDP Work Product, and the ownership of their corresponding Patent
Rights and IP Rights therein, as stated in this Article 5, no right,
license, title or interest under any intellectual property is granted under this
Agreement, whether by implication, estoppel or otherwise. Certain
rights, licenses and covenants not to ▇▇▇ under Intellectual Property of Micron
and NTC are granted in other Joint Venture Documents.
ARTICLE
6
CONFIDENTIALITY
6.1 Confidentiality
Obligations.
DLI-▇▇▇▇▇▇▇▇▇
- 15
-
NTC
Micron CONFIDENTIAL
(a) All
information (including JDP Work Product, JDP Inventions, JDP Process Nodes and
JDP Designs and Foundational Know-How) provided, disclosed, created or obtained
in connection with this Agreement or the performance of any of the Parties’
activities under this Agreement, including the performance of activities under a
SOW, shall be deemed “Confidential Information” subject to all applicable
provisions of the Mutual Confidentiality Agreement. The terms and
conditions of this Agreement shall also be considered “Confidential Information”
under the Mutual Confidentiality Agreement for which each Party shall be
considered a “Receiving Party” under such agreement.
(b) Additionally,
notwithstanding whether one of the Parties solely or jointly owns JDP
Inventions, JDP Work Product, JDP Process Nodes and JDP Designs and IP Rights or
Patent Rights therein in accordance with this Agreement, each of the Parties
shall be deemed a “Receiving Party” under the Mutual Confidentiality Agreement
with respect to information embodied therein and no Party may contribute,
transfer or disclose any JDP Inventions, JDP Work Product, JDP Process Nodes,
JDP Designs or IP Rights or Patent Rights therein to any Third Party except as
provided in Section
6.2.
6.2 Permitted
Disclosures. Notwithstanding the restrictions in Section
6.1:
(a) NTC
and Micron may contribute, transfer and disclose any Confidential Information
described in Section
6.1(b) to their respective Existing Entities and wholly owned
Subsidiaries, provided
that, at the time of such contribution, transfer or disclosure, such
Existing Entity is an Affiliate of the Party seeking to contribute, transfer or
disclose such Confidential Information.
(b) Each
of Micron and NTC may disclose the JDP Inventions and related Confidential
Information, as the case may be, to its patent attorneys and patent agents and
any Governmental Entity as deemed by Micron or NTC necessary to conduct Patent
Prosecution on the JDP Inventions owned by such Party.
(c) Micron
may disclose any Confidential Information described in Section 6.1 to any
Third Party who is not a manufacturer of [***], provided that each such
disclosure shall not grant or purport to grant, explicitly, by implication by
estoppel or otherwise, to the Third Party any right, title or interest in, to or
under any Patent Rights of NTC, including Patent Rights of NTC in JDP Inventions
and shall be subject to a written obligation of confidentiality that is no less
restrictive than that applicable to the Parties under the Mutual Confidentiality
Agreement.
(d) NTC
may disclose any Confidential Information described in Section 6.1(b) to any
Third Party who is not a manufacturer of [***], provided that each such
disclosure shall not grant or purport to grant, explicitly, by implication by
estoppel or otherwise, to the Third Party any right, title or interest in, to or
under any Patent Rights of Micron, its Existing Entities or Intel Corporation,
including Patent Rights of Micron on JDP Inventions and shall be subject to a
written obligation of confidentiality that is no less restrictive than that
applicable to the Parties under the Mutual Confidentiality
Agreement. [***].
(e) [***]
DLI-▇▇▇▇▇▇▇▇▇
- 16
-
NTC
Micron CONFIDENTIAL
6.3 Conflicts. To
the extent there is a conflict between this Agreement and the Mutual
Confidentiality Agreement, the terms of this Agreement shall
control.
ARTICLE
7
WARRANTIES;
DISCLAIMERS
7.1 No Implied
Obligation. 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 JDP Work Product or JDP Inventions 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 or conferring any right to bring or prosecute proceedings against
Third Parties for infringement; 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.
7.2 Third Party
Software. Use of any JDP Inventions or JDP Work Product
exchanged between the Parties under this Agreement 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.
7.3 Disclaimer. [***].
ARTICLE 8
INDEMNIFICATION; LIMITATION
OF LIABILITY
8.1 Indemnification.
(a) Micron
shall indemnify and hold harmless NTC, its Affiliates and their respective
directors, officers, employees, agents and other representatives (“NTC Indemnitees”) from and
against any and all Losses suffered by the NTC Indemnitees relating to personal
injury (including death) or property damage to the extent such injury or damage
was caused by the gross negligence or willful misconduct of any employee of
Micron or its Affiliate while at any facilities of NTC or its Affiliate and such
gross negligence, willful misconduct or Losses were not caused by any NTC
Indemnitee.
DLI-▇▇▇▇▇▇▇▇▇
- 17
-
NTC
Micron CONFIDENTIAL
(b) NTC
shall indemnify and hold harmless Micron, its Affiliates and their respective
directors, officers, employees, agents and other representatives (“Micron Indemnitees”) from and
against any and all Losses suffered by the Micron Indemnitees relating to
personal injury (including death) or property damage to the extent such injury
or damage was caused by the gross negligence or willful misconduct of any
employee of NTC or its Affiliate while at any facilities of Micron or its
Affiliate and such gross negligence, willful misconduct or Losses were not
caused by any Micron Indemnitee.
8.2 Indemnity
Procedure.
(a) Any
Person who or which is entitled to seek indemnification under Section 8.1 (an
“Indemnified Party”)
shall promptly notify the other Party (“Indemnifying Party”) of any
such Losses for which it seeks indemnification hereunder. Failure of
the Indemnified Party to give such notice shall not relieve the Indemnifying
Party from Losses on account of this indemnification, except if and only to the
extent that the Indemnifying Party is actually prejudiced
thereby. Thereafter, the Indemnified Party shall deliver to the
Indemnifying Party, promptly after the Indemnified Party’s receipt thereof,
copies of all notices and documents (including court papers) received by the
Indemnified Party relating to the Losses and underlying facts and
circumstances. The Indemnifying Party shall have the right to assume
the defense of the Indemnified Party with respect to any legal action relating
to such Losses (“Indemnified
Claim”) upon written notice to the Indemnified Party delivered within
thirty (30) days after receipt of the particular notice from the Indemnified
Party.
(b) So
long as the Indemnifying Party has assumed the defense of the Indemnified Claim
in accordance herewith and notified the Indemnified Party in writing thereof,
(1) the Indemnified Party may retain separate co-counsel, at its sole cost and
expense, and participate in the defense of the Indemnified Claim, it being
understood that the Indemnifying Party shall pay all reasonable costs and
expenses of counsel for the Indemnified Party after such time as the Indemnified
Party has notified the Indemnifying Party of such Indemnified Claim and prior to
such time as the Indemnifying Party has notified the Indemnified Party that it
has assumed the defense of such Indemnified Claim, (2) the Indemnified Party
shall not consent to the entry of any judgment or enter into any settlement with
respect to a Indemnified Claim without the prior written consent of the
Indemnifying Party (not to be unreasonably withheld, conditioned or delayed) and
(3) the Indemnifying Party will not consent to the entry of any judgment or
enter into any settlement with respect to the Indemnified Claim to be paid by an
Indemnifying Party (other than a judgment or settlement that is solely for money
damages and is accompanied by a release of all indemnifiable claims against the
Indemnified Party) without the prior written consent of the Indemnified Party
(not to be unreasonably withheld, conditioned or delayed).
(c) The
Indemnified Party and Indemnifying Party shall cooperate in the defense of each
Indemnified Claim (and the Indemnified Party and the Indemnifying Party agree
with respect to all such Indemnified Claims that a common interest privilege
agreement exists between them), including by (1) permitting the Indemnifying
Party to discuss the Indemnified Claim with such officers, employees,
consultants and representatives of the Indemnified Party as the Indemnifying
Party reasonably requests, (2) providing to the Indemnifying Party copies of
documents and samples of products as the Indemnifying Party reasonably requests
in connection
DLI-▇▇▇▇▇▇▇▇▇
- 18
-
NTC
Micron CONFIDENTIAL
with
defending such Indemnified Claim, (3) preserving all properties, books, records,
papers, documents, plans, drawings, electronic mail and databases relating to
matters pertinent to the Indemnified Claim and under the Indemnified Party’s
custody or control in accordance with such Party’s corporate documents retention
policies, or longer to the extent reasonably requested by the Indemnified Party,
(4) notifying the Indemnifying Party promptly of receipt by the Indemnified
Party of any subpoena or other third party request for documents or interviews
and testimony, and (5) providing to the Indemnifying Party copies of any
documents produced by the Indemnified Party in response to, or compliance with,
any subpoena or other third party request for documents. In
connection with any claims, unless otherwise ordered by a court, the Indemnified
Party shall not produce documents to a Third Party until the Indemnifying Party
has been provided a reasonable opportunity to review, copy and assert privileges
covering such documents, except to the extent (x) inconsistent with the
Indemnified Party’s obligations under Applicable Law and (y) where to do so
would subject the Indemnified Party or its employees, agents or representatives
to criminal or civil sanctions.
8.3 Limitation of
Liability. [***]
ARTICLE
9
TERM AND
TERMINATION
9.1 Term. The
term of this Agreement commences on the Effective Date and continues in effect
until terminated in accordance with Section
9.2. (The period from the Effective Date until termination is
the “Term”).
9.2 Termination of this
Agreement.
(a) Unless
otherwise mutually agreed, [***].
(b) Either
Party may terminate this Agreement [***].
(c) Either
Party may terminate this Agreement by notice to the other Party if
the other Party commits a material breach of this Agreement and such breach
remains uncured [***] of the breach.
(d) Either
Party may terminate this Agreement immediately upon notice to the other Party in
the event of either (i) a Change of Control of the other Party; (ii) the other
Party becomes bankrupt or insolvent, or files a petition in bankruptcy or makes
a general assignment for the benefit of creditors or otherwise acknowledges in
writing insolvency, or is adjudged bankrupt, and such Party (A) fails to assume
this Agreement in any such bankruptcy proceeding within thirty (30) days after
filing or (B) assumes and assigns this Agreement to a Third Party in violation
of Section
10.3; (iii) the other
Party goes into or is placed in a process of complete liquidation; (iv) a
trustee or receiver is appointed for any substantial portion of the business of
the other Party and such trustee or receiver is not discharged within sixty (60)
days after appointment; (v) any case or proceeding shall have been commenced or
other action taken against the other Party in bankruptcy or seeking liquidation,
reorganization, dissolution, a winding-up arrangement, composition or
readjustment of its debts or any other relief under any bankruptcy, insolvency,
reorganization or similar act or law of any jurisdiction now or hereafter
DLI-▇▇▇▇▇▇▇▇▇
- 19
-
NTC
Micron CONFIDENTIAL
in effect
and is not dismissed or converted into a voluntary proceeding governed by clause
(ii) above within sixty (60) days after filing; or (vi) there shall have been
issued a warrant of attachment, execution, distraint or similar process against
any substantial part of the property of the other Party and such event shall
have continued for a period of sixty (60) days and none of the following has
occurred: (A) it is dismissed, (B) it is bonded in a manner
reasonably satisfactory to the other of Micron or NTC, or (C) it is
discharged.
(e) [***]
may terminate this Agreement in accordance with Section III.D.5 of
Schedule
2.
9.3 SOWs.
(a) The
term of any SOW (together with the portions of this Agreement applicable to such
SOW(s)) commences upon the effective date set forth in the SOW and continues in
effect until the first to occur of: (i) completion of the work to be
performed thereunder, as determined in accordance with the applicable SOW and
(ii) the JDP Committee agrees to terminate the work under a SOW or the
SOW.
(b) Micron
or NTC may terminate any SOW by notice to the other Party if such other Party
commits a material breach of this Agreement with respect to such SOW and such
breach remains uncured for more than thirty (30) days after notice of the
breach.
(c) Termination
of any or all SOW(s) does not automatically terminate this
Agreement. Termination of this Agreement automatically terminates all
SOW(s), unless otherwise mutually agreed by Micron and NTC.
9.4 Effects of
Termination.
(a) Termination
of this Agreement shall not affect any of the Parties’ respective rights accrued
or obligations owed before termination. In addition, the following
shall survive termination of this Agreement for any reason: Articles 1, 4, 6, 7, 8 and 10 and Sections 5.1,
5.2(b) and
5.2(c), 5.3 through 5.6, 5.8 and 9.4.
(b) Upon
termination of any SOW for any reason, each Party’s delivery obligation with
respect to any JDP Work Product produced thereunder before such termination
shall survive such termination. Moreover, termination of a SOW shall
not affect payment obligations accrued prior to the date of such termination in
connection with such SOW.
(c) The
JDP Committee and the Patent Review Committee shall continue to exist and
operate in accordance with Schedule 2 after
termination as long as necessary to continue to carryout the provisions of this
Agreement that survive termination in accordance therewith.
(d) Upon
termination of this Agreement by a Deadlock Terminating Party, each of the
Parties shall have those post-termination obligations specified in Section III.D.5 of
Schedule 2 for
the Post Termination Funding Period, if applicable.
DLI-▇▇▇▇▇▇▇▇▇
- 20
-
NTC
Micron CONFIDENTIAL
ARTICLE
10
MISCELLANEOUS
10.1 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: ▇▇▇.▇▇▇.▇▇▇▇
10.2 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.
10.3 Assignment. [***]
10.4 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 contained herein.
10.5 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.
10.6 Choice of
Law. Except as provided in Sections 5.2 (b) and
(c), 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.
10.7 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
DLI-▇▇▇▇▇▇▇▇▇
- 21
-
NTC
Micron CONFIDENTIAL
brought
in a state or federal court of competent jurisdiction located in the State of
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.
10.8 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.
10.9 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.
10.10 Entire
Agreement. This Agreement, together with its Schedules and
SOWs and the agreements and instruments expressly provided for herein, including
the applicable terms of the other Joint Venture Documents, constitute the entire
agreement of the Parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral and written, between the
Parties hereto with respect to the subject matter hereof.
10.11 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.
10.12 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 >
DLI-▇▇▇▇▇▇▇▇▇
- 22
-
NTC
Micron CONFIDENTIAL
IN
WITNESS WHEREOF, this Agreement has been executed and delivered as of the
Effective Date.
NANYA
TECHNOLOGY CORPORATION
By: /s/ ▇▇▇
▇▇▇▇
Name: ▇▇▇
▇▇▇▇
Title: President
MICRON
TECHNOLOGY, INC.
By: /s/ D. ▇▇▇▇
▇▇▇▇▇▇
Name: D.
▇▇▇▇ ▇▇▇▇▇▇
Title: President
and Chief Operating Officer
THIS
IS THE SIGNATURE PAGE FOR THE JOINT DEVELOPMENT PROGRAM AGREEMENT ENTERED INTO
BY AND BETWEEN NTC AND MICRON
DLI-▇▇▇▇▇▇▇▇▇
- 23
-
NTC
Micron CONFIDENTIAL
Schedule
1
SOWs as of Effective
Date
[***]
(All the
above, as attached.)
Schedule 1
DLI-▇▇▇▇▇▇▇▇▇
- 24
-
NTC
Micron CONFIDENTIAL
Schedule
2
JDP Committee and Patent
Review Committee Charter
|
I.
|
Definitions. For
purposes of this Schedule 2
only, the following terms shall have the meaning ascribed to them
below:
|
“Committee”” means either the
JDP Committee or the Patent Review Committee.
“Deadlock” has the meaning
provided in Section
III.D.3. of this Schedule
2.
“JDP Co-Chairman” and “JDP Co-Chairmen” shall have
the meaning provided in Section III.B. of
this Schedule 2.
“Micron Matter” means
[***].
“Manufacturing Committee” means
the committee formed by MNL and NTC pursuant to the Joint Venture
Agreement.
“Member” means a member of the
JDP Committee or Patent Review Committee appointed by a Party pursuant to Section III.A.1
of this Schedule
2.
“NTC Matter” means
[***].
“Senior Member” has the meaning
provided in Section
III.B.1 of this Schedule
2.
“Tie” means, with respect to
any vote of the JDP Committee, that the vote of Micron and the vote of NTC are
not the same.
|
II.
|
Purpose
and Functions of the
Committees.
|
|
|
A.
|
JDP
Committee. The primary purpose of the JDP Committee is
to enable, coordinate and guide the activities of the Parties under this
Agreement relating to the development of JDP Designs, JDP Process Nodes
and other technology development activities as the JDP Committee shall
determine. In fulfilling such purpose, the JDP Committee shall
have the duty and authority to perform the following functions, as more
fully described in the Agreement:
|
[***]
|
|
B.
|
Patent Review
Committee. The primary purpose of the Patent Review
Committee [***]
|
|
III.
|
Membership
and Procedure.
|
|
|
A.
|
Membership on
Committees.
|
Schedule
2
DLI-▇▇▇▇▇▇▇▇▇
- 25
-
NTC
Micron CONFIDENTIAL
|
|
1.
|
Number and Appointment
of Committee Members. The JDP Committee and Patent
Review Committee [***]. One-half of the Members of each
Committee shall be appointed by Micron and one-half shall be appointed by
NTC. The Joint Venture Company cannot appoint any Members to
either Committee. The qualifications of any Member shall be
determined in the discretion of the Party that appoints such
Member.
|
|
|
2.
|
Senior
Members. Micron and NTC shall each promptly designate
one (1) of the Members appointed by it to the JDP Committee to be its
“Senior Member”
pursuant to a written notice provided to the other
Party. [***] Either Party may designate a new or
additional Senior Member from among the Members appointed by such Party to
the JDP Committee at any time upon written notice to the other Party (if
any of such other Members have sufficient
authority).
|
|
|
3.
|
Removal and
Vacancies. Each of Micron and NTC, in its sole
discretion, may remove any Member appointed by it to a
Committee. If any Member is so removed or resigns from a
Committee or otherwise ceases to serve on a Committee for any reason
(e.g., by reason
of the separation of such Member from employment by the Party that
appointed such Member, such Member’s death or disability, etc.), the Party
that appointed such Member shall promptly notify the other Party of such
Member’s withdrawal from the Committee. Any vacancy on a
Committee shall be filled by the Party that appointed the Member who has
ceased to serve on the Committee.
|
|
|
B.
|
Co-Chairmen of the JDP
Committee. Each of Micron and NTC shall have the right
to designate one of the Members that it appoints to the JDP Committee as a
co-chairman of the JDP Committee (each, a “JDP Co-Chairman” and
together the “JDP
Co-Chairmen”). [***]
|
|
|
C.
|
Voting. [***]
|
|
|
D.
|
Deadlock.
|
|
|
1.
|
Micron Matters; NTC
Matters. [***]
|
|
|
2.
|
[***]
|
|
|
3.
|
[***]
|
|
|
4.
|
[***]
|
|
|
5.
|
[***]
|
|
E.
|
Notice; Waiver;
Meeting Location. The JDP Committee and Patent Review
Committee each shall hold meetings at least quarterly and upon not less
than
|
Schedule
2
DLI-▇▇▇▇▇▇▇▇▇
- 26
-
NTC
Micron CONFIDENTIAL
|
|
|
fifteen
(15) Business Days’ written notice. Additional meetings of a
Committee shall be held (A) at such other times as may be determined by
the Committee, (B) at the request of at least two (2) Members of the
Committee, upon not less than five (5) Business Days’ written notice or
(C) in accordance with Section III.D.3
of this Schedule
2, following a failure by the JDP Committee to adopt or reject a
proposal for action presented to it. The Co-Chairmen shall
endeavor to agree upon the location of each meeting of the JDP
Committee. If they fail to agree with respect to any such
meeting, then they shall alternate, with one Co-Chairman deciding upon the
location of such meeting, and then the other Co-Chairman deciding upon the
location of the following meeting, etc. For purposes of this
Schedule
2, notice may be provided via facsimile, email or any other manner
provided in Section 10.1 of
this Agreement, or by telephonic notice to each Member. The
presence of any Member at a meeting shall constitute a waiver of notice of
the meeting with respect to such Member, unless such Member declares at
the meeting that such Member objects to the notice as having been
improperly given. Each Committee shall cause written minutes to
be prepared of all actions taken by the Committee and shall cause a copy
thereof to be delivered to each Member within fifteen (15) Business
Days.
|
|
|
F.
|
Action Without a
Meeting. On any matter that is to be voted on, consented
to or approved by a Committee, the Committee may take such action without
a meeting, without prior notice and without a vote if a consent or
consents in writing, setting forth the action so taken, shall be signed by
both Senior Members of the JDP Committee or all members of the Patent
Review Committee.
|
|
|
G.
|
Meetings by
Telecommunications. Unless a Committee determines
otherwise, Members of a Committee shall have the right to participate in
all meetings of the Committee by means of a conference telephone or
similar telecommunications service by means of which all persons
participating in the meeting can hear each other at the same time and
participation by such means shall constitute presence in person at a
meeting. Any reference in this Schedule 2 to
attendance or participation by a Member at a meeting of the JDP Committee
shall be deemed to refer to attendance in person or attendance by means of
a telecommunications service pursuant to this Section III.G
of this Schedule
2.
|
|
|
H.
|
Compensation of
Members of Committees. The Members of a Committee, in
their capacity as such, shall not receive compensation, except with
respect to any Member as such Member and the Party that appointed such
Member shall otherwise mutually agree. Each Party shall bear
the cost and expenses incurred by its appointed Members of a Committee in
connection with the activities of the
Committee.
|
Schedule 2
DLI-▇▇▇▇▇▇▇▇▇
- 27
-
NTC
Micron CONFIDENTIAL
Schedule
3
Potential Deliverables For
Each Stack DRAM Design Developed under a Design SOW
Deliverables
as listed in this Schedule can be added, amended, or removed for each SOW as
approved by the JDP.
[***]
Schedule 3
DLI-▇▇▇▇▇▇▇▇▇
- 28
-
NTC
Micron CONFIDENTIAL
Schedule
4
Payment of SOW Costs and
Reporting
|
I.
|
Cost
Contribution. [***]
|
|
II.
|
SOW
Costs.
|
|
|
A.
|
The
term “SOW Costs”
as it applies to the costs associated with a Party’s development
activities under individual SOWs, or as part of the annual budget adopted
by the JDP Committee, means, any of the following types of costs relating
to a Party’s activities under that SOW, as calculated in accordance with
U.S. GAAP for Micron and in accordance with Republic of China GAAP for NTC
and each such Party’s internal accounting practices thereunder as
consistently applied:
|
[***]
|
|
B.
|
Cost Segregation and
Allocation Principles.
|
[***]
|
III.
|
Cost
Reports.
|
[***]
|
IV.
|
Parties’
Respective Share of Costs. [***]
|
|
V.
|
Payments.
|
|
|
A.
|
[***]
|
|
|
B.
|
[***]
|
|
|
C.
|
[***]
|
|
|
D.
|
[***]
|
|
|
E.
|
[***]
Section
10.1. 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
10.1:
|
|
|
1.
|
Reports and Invoices
to NTC:
|
[***]
Nanya
Technology Corp.
Schedule 4
DLI-▇▇▇▇▇▇▇▇▇
- 29
-
Hwa-Ya
Technology Park 669, Fuhsing 3 RD. Kueishan Taoyuan, Taiwan, R. O.
C.
[***]
|
|
2.
|
Reports to
Micron:
|
[***]
Micron
Technology, Inc.
▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇
P.O. Box
6, MS ▇-▇▇▇
▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
[***]
|
|
3.
|
Invoices to
Micron:
|
[***]
Micron
Technology, Inc.
▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇
P.O. Box
6, MS ▇-▇▇▇
▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
[***]
|
|
F.
|
Payments. All
payments under this Agreement shall be made in United States Dollars by
wire transfer to a bank account of Micron designated by the following
person or such other manner designated by such
person:
|
|
|
1.
|
Payments to
Micron:
|
[***]
▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇
P.O. Box
6, MS ▇-▇▇▇
▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
[***]
|
|
2.
|
Payments to
Papaya:
|
[***]
Nanya
Technology Corp.
Hwa-Ya
Technology Park 669, Fuhsing 3 RD. Kueishan Taoyuan, Taiwan, R. O.
C.
[***]
|
VI.
|
Audit
Rights; Records. Each of
Micron and NTC shall have the right to have an independent auditor audit
not more than twice per calendar year, upon reasonable advance written
notice, during normal business hours and on a confidential basis subject
to the Mutual Confidentiality Agreement, all records and accounts of the
other such Party
|
Schedule 4
DLI-▇▇▇▇▇▇▇▇▇
- 30
-
|
|
and
of the Joint Venture Company relevant to the calculation of SOW Costs and
sharing thereof under this Schedule in the [***] immediately preceding the
date of the audit; provided however,
neither Party shall be obligated to provide any records and book of
accounts existing prior to the Effective Date. Each Party shall
for at least [***] from the date of their creation, keep complete and
accurate records and books of accounts relevant to such calculations in
sufficient detail to enable a complete and detailed audit to be
conducted. The Party who performs any such audit shall provide
a report of its findings to the other Party promptly upon completion of
the audit. The Parties will promptly correct any discrepancies
in the amount of SOW Costs incurred and/or shared by Micron and NTC
contrary to that intended by this
Schedule.
|
Schedule 4
DLI-▇▇▇▇▇▇▇▇▇
- 31
-
Schedule
5
Pooling
Ratios
[***]
Schedule 5
DLI-▇▇▇▇▇▇▇▇▇
- 32
-
Schedule
6
Existing Entities as of the
Effective Date
Micron Existing
Entities:
[***]
NTC Existing
Entities:
[***]
Schedule 6
DLI-▇▇▇▇▇▇▇▇▇
- 33
-
Schedule
7
JDP Potential Scope of
Product Engineering
[***]
Schedule 7
DLI-▇▇▇▇▇▇▇▇▇
- 34
-
Schedule
8
Qualification
Process
Qualification or Design Qualification, as it pertains to any particular SOW,
could be defined in the SOW to include any or all of the following (or
additional things) and likely will be different between Stack DRAM Designs for
Stack DRAM Modules and Stack DRAM Products:
|
I.
|
Process
Qualification:
|
|
|
A.
|
Method:
|
[***]
|
|
B.
|
Tests that could be
performed include: [***]
|
|
II.
|
Design
Qualification:
|
|
|
A.
|
Method:
|
[***]
|
|
B.
|
Measurements that
could be taken include:
[***]
|
Schedule 8
DLI-▇▇▇▇▇▇▇▇▇
- 35
-
Schedule
9
Process SOW Documentation
and Deliverables
Documentation
and deliverables in an SOW could include some or all of the following (or
additional things):
[***]
Schedule 9
DLI-▇▇▇▇▇▇▇▇▇
- 36
-
Schedule
10
Example Staged Process Flow
for Technology Transfer
[***]
Schedule 10
DLI-▇▇▇▇▇▇▇▇▇
- 37
-