Joint Development Program Agreement

exhibit10_75.htm


EXHIBIT 10.75

[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT


AMENDED AND RESTATED
JOINT DEVELOPMENT PROGRAM AGREEMENT

This AMENDED AND RESTATED JOINT DEVELOPMENT PROGRAM AGREEMENT (this “Agreement”), is made and entered into as of this 26th day of November, 2008 (“Amendment Date”), by and between Nanya Technology CorporationNanya 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.The Parties entered that certain Joint Development Program Agreement dated April 21, 2008 (“Original Agreement”) in connection with the formation of MeiYa Technology Corporation, a company-limited-by-shares incorporated under the laws of the Republic of China (“MeiYa”).

B.Pursuant to certain of the Joint Venture Documents (as defined hereinafter) and the transactions contemplated thereby, MNL (as defined herein), an Affiliate of Micron, and NTC have acquired an ownership interest in Inotera Memories, Inc., a company incorporated under the laws of the Republic of China (“IMI”) for the collaborative manufacture and sale of Stack DRAM Products exclusively to the Parties, and the Parties are combining their ownership and operations of MeiYa with that of the Joint Venture Company such that MeiYa will cease to exist.

C.NTC and Micron desire to continue 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, by Micron, and, for up to six (6) months after the Amendment Date, by MeiYa, to manufacture Stack DRAM Products.

D.Accordingly, the Parties desire to amend and restated the Original Agreement to account for the transactions contemplated by the Joint Venture Documents related to IMI upon the terms and conditions set forth herein.

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


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1.1Definitions.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.

“Amendment Date” shall have the meaning set forth in the preamble to this Agreement.

“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 Yorkare 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 June 6, 2008, the date of closing of the formation of MeiYa.

“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).


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“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 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[***] to solely own.

“Drafting Party” means either Micron or NTC, as the Party selecting a[***] 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).


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“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” means April 21, 2008, the Effective Date of the Original 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 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).

“IMI” has the meaning set forth in the Recitals to this Agreement.

“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.


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“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.

“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 either IMI or MeiYa, as the context dictates, subject to Section 9.2(f).

“Joint Venture Documents” means (a) with respect to IMI, that certain Joint Venture Agreement between MNL and NTC dated as of the Amendment Date relating to the Joint Venture Company and those documents listed on Schedule A to that Joint Venture Agreement and (b) with respect to MeiYa, that certain Master Agreement by and between Micron and NTC dated as of the Effective Date, the Master Agreement Disclosure Letter by and between Micron and NTC dated as of the Effective Date, and the documents listed on Schedules 2.1 through 2.5 of such disclosure letter, each as amended.

“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.


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“MeiYa” shall have the meaning set forth in the Recitals to this Agreement.

“MeiYa Roll-Up” means the first to occur of the following events, whether through a single transaction or series of related transactions:(a) any consolidation or merger of MeiYa with or into another Person; (b) the sale of all or substantially all of MeiYa’s non-cash assets to another Person; (c) the sale of all or substantially all of MeiYa 's voting equity to any other Persons; and (d) the voluntary or involuntary liquidation, dissolution or winding up of the affairs of MeiYa.

“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.

“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 that certain Second Amended and Restated Mutual Confidentiality Agreement dated as of the Amendment Date among NTC, Micron, MNL, MeiYa and IMI.

“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 [***].

“Original Agreement” shall have the meaning set forth in the Recitals to this Agreement.

“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.


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“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.

[***]

[***]

“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 a 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).


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“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 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 b ...