MICRON GUARANTY AGREEMENT
EXHIBIT
10.69
NTC/MICRON
CONFIDENTIAL
MICRON
GUARANTY AGREEMENT
This GUARANTY
(this “Guaranty”) is
made and entered into as of the 26th day of November, 2008, by Micron
Technology, Inc., a Delaware corporation (“Guarantor”), in favor of Nanya
Technology Corporation Nanya Technology Corporation
[Translation from Chinese], a company incorporated under the laws
of the ROC (“Beneficiary” or “NTC”). Capitalized
terms used in this Guaranty shall have the respective meanings ascribed to such
terms in Article I of this Guaranty or as otherwise provided in Section
1.2. All capitalized terms used in this Guaranty but not otherwise
defined, shall have the meanings ascribed to them in the Joint Venture
Agreement, of even date herewith, between Micron Semiconductor B.V., a private
limited liability company organized under the laws of the Netherlands (“MNL”) and Beneficiary (the
“Joint Venture
Agreement”).
RECITALS
A. Beneficiary
and Infineon Technologies AG, a company incorporated under the laws of Germany
(“Infineon”), have
previously formed Inotera Memories, Inc. Inotera Memories Inc.
[Translation from Chinese], a company incorporated under the laws
of the ROC (the “Joint Venture
Company”).
B. Infineon
subsequently assigned to Qimonda AG, a company incorporated under the laws of
Germany (hereinafter “Qimonda”), all of Infineon’s
Shares in the Joint Venture Company.
C. In
accordance with that certain Share Purchase Agreement, dated October 11, 2008,
by and between MNL and Qimonda, MNL is acquiring Shares in the Joint Venture
Company from Qimonda.
D. MNL
and Beneficiary are entering into the Joint Venture Agreement to set forth
certain agreements regarding the ownership, governance and operation of the
Joint Venture Company.
E. Guarantor
is the direct or indirect owner of all the equity securities of MNL, and
Guarantor will, as a consequence, benefit from the consummation of the
transactions contemplated by the Joint Venture Agreement.
F. Beneficiary
is not willing to enter into the Joint Venture Agreement unless Guarantor agrees
to be bound by the terms of this Guaranty.
G. In
order to induce Beneficiary to enter into the Joint Venture Agreement, Guarantor
has agreed to execute and deliver to Beneficiary this Guaranty.
NOW
THEREFORE, for good and valuable consideration, including the inducement of
Beneficiary to consummate the transactions contemplated by the Joint Venture
Agreement, and other consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
NTC/MICRON
CONFIDENTIAL
ARTICLE
I. DEFINITIONS
Section
1.1 Defined
Terms. For purposes of this Guaranty, the following terms will
have the following meanings when used herein with initial capital
letters:
“Applicable Law” means any
applicable laws, statutes, rules, regulations, ordinances, orders, codes,
arbitration awards, judgments, decrees or other legal requirements of any
Governmental Entity.
“Beneficiary” shall have the
meaning set forth in the preamble of this Guaranty.
“Guarantor” shall have the
meaning set forth in the preamble of this Guaranty.
“Guaranty” shall have the
meaning set forth in the preamble of this Guaranty.
“Guaranty Obligations” shall
have the meaning set forth in Section
2.1 of this Guaranty.
“Infineon” shall have the
meaning set forth in the Recitals.
“Joint Venture Agreement” shall
have the meaning set forth in the preamble of this Guaranty.
“Joint Venture Company” shall
have the meaning set forth in the Recitals.
“MNL” shall have the meaning
set forth in the preamble of this Guaranty.
“NTC” shall have the meaning
set forth in the preamble of this Guaranty.
“Party” means Guarantor or
Beneficiary individually, and “Parties” means Guarantor and
Beneficiary collectively.
“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.
“Qimonda” shall have the
meaning set forth in the Recitals.
“ROC” or “Taiwan” means the Republic of
China.
Section
1.2 Certain Interpretative
Matters.
(a) Unless
the context requires otherwise, (1) all references to Sections, Articles or
Recitals are to Sections, Articles or Recitals of this Guaranty, (2) words in
the singular include the plural and vice versa, (3) the term “including” means “including
without limitation,” and (4) the terms “herein,” “hereof,” “hereunder” and words of
similar import shall mean references to this Guaranty as a whole and not to any
individual section or portion hereof. All references to “day” or “days” mean calendar
days.
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(b) No
provision of this Guaranty 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) such provision is inconsistent with
any prior draft of this Guaranty or such provision.
ARTICLE
II. GUARANTY
Section
2.1 Guaranty
Obligations. Subject to the terms and conditions set forth in
this Guaranty, Guarantor hereby irrevocably and unconditionally guarantees the
prompt performance by MNL of its obligations under the Joint Venture Agreement
(the “Guaranty
Obligations”).
Section
2.2 Nature of
Guaranty. Insofar as the payment by MNL of any sums of money
to the Joint Venture Company or the Beneficiary is involved, this Guaranty is a
guarantee of payment and not of collection. Should the Joint Venture
Company or the Beneficiary be obligated by any bankruptcy or other law to repay
to MNL, Guarantor, or any trustee, receiver or other representative of either of
them, any amounts previously paid, this Guaranty will be reinstated to the
amount of such repayments.
Section
2.3 Independent
Obligations. Except as specifically provided for in this
Guaranty, the obligations of Guarantor under this Guaranty are independent of
the obligations of MNL under the Joint Venture Agreement. Upon any
default by MNL in the performance of the Guaranty Obligations, Beneficiary may
immediately proceed against Guarantor hereunder without bringing action against
or joining MNL.
Section
2.4 Defenses to
Enforcement. It will not be a defense to the enforcement of
this Guaranty that MNL’s execution and delivery of the Joint Venture Agreement
was unauthorized or otherwise invalid, or that any of MNL’s obligations
thereunder are otherwise unenforceable. Guarantor intends this
Guaranty to apply in respect of the obligations of MNL that would arise under
the Joint Venture Agreement if all of the provisions thereof were enforceable
against MNL in accordance with their terms.
Section
2.5 Action with Respect to the
Guaranty Obligations. Guarantor agrees that the obligations of
Guarantor hereunder are unconditional and irrevocable under the circumstances
set forth in the Joint Venture Agreement, subject to the terms and conditions of
this Guaranty, and will not be impaired, released, terminated, discharged or
otherwise affected except by performance thereof in full. Without
limiting the generality of the foregoing, such obligations of Guarantor will not
be affected by any of the following:
(a) any
modification or amendment of, or addition or supplement to, the Joint Venture
Agreement agreed to in writing by Guarantor or MNL, unless also agreed to in
writing by Beneficiary;
(b) any
exercise or non-exercise of any right, power or remedy under, or in respect of,
the Joint Venture Agreement;
(c) any
waiver, consent, release, extension, indulgence or other action, inaction or
omission under, or in respect of, the Joint Venture Agreement, unless also
agreed to in writing by Beneficiary;
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(d) any
insolvency, bankruptcy or similar proceeding involving or affecting MNL or any
liquidation or dissolution of MNL; or
(e) any
failure of MNL to comply with any of the terms or conditions of the Joint
Venture Agreement.
Section
2.6 Delays;
Waivers. No delay by Beneficiary in exercising any right,
power or privilege under this Guaranty or failure to exercise the same will
constitute a waiver or otherwise affect such right, power or privilege, nor will
any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. No
notice to or demand on Guarantor will be deemed to be a waiver of (a) any
obligation of MNL or (b) any right of Beneficiary to take any further
action or exercise any rights under this Guaranty or the Joint Venture
Agreement.
Section
2.7 Defenses. Notwithstanding
the foregoing, nothing in this Guaranty will restrict Guarantor from raising the
defense of prior payment or performance by MNL of the obligations which
Guarantor may be called upon to pay or perform under this Guaranty or the
defense (other than a defense referred to in Section 2.4 of this
Guaranty) that there is no obligation on the part of MNL with respect to the
matter claimed to be in default under the Joint Venture Agreement.
Section
2.8 Representations and
Warranties. Guarantor hereby represents and warrants to
Beneficiary that:
(a) Guarantor
shall follow and abide by the restriction on unilateral purchases of the Shares
of Joint Venture Company under Section 3.3 of the Joint Venture
Agreement;
(b) Guarantor
owns, directly or indirectly, all of the equity securities of MNL;
(c) Guarantor
has the authority, capacity and power to execute and deliver this Guaranty and
to consummate the transactions contemplated hereby;
(d) this
Guaranty constitutes the valid and binding obligation of Guarantor and is
enforceable against Guarantor in accordance with its terms; and
(e) neither
the execution and delivery by Guarantor of this Guaranty nor the performance by
Guarantor of the transactions contemplated hereby will violate, conflict with or
constitute a default under (1) any Applicable Law or other law to which
either Guarantor or any of its assets is subject, or (2) any contract to
which Guarantor is a party or is bound, except where such conflict, violation,
default, termination, cancellation or acceleration would not materially impair
the ability of Guarantor to perform its obligations under this
Guaranty.
ARTICLE
III. MISCELLANEOUS
Section
3.1 Entire
Agreement. This Guaranty constitutes the entire agreement of
the Parties with respect to the subject matter hereof and supersedes all prior
agreements and undertakings, written and oral, between the Parties with respect
to the subject matter hereof.
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Section
3.2 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) confirmation of delivery by a standard overnight or recognized
international carrier, 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):
(1) if to
Beneficiary:
Nanya
Technology Corporation
Hwa-Ya
Technology Park 669
Fuhsing 3
RD. Kueishan
Taoyuan,
Taiwan, ROC
Attn: Legal department
Facsimile:
886-3-396-2226
(2) if to
Guarantor:
Micron
Technology, Inc.
0000 X.
Xxxxxxx Xxx
Mail Stop
0-000
Xxxxx, XX
00000
Attn:
General Counsel
Facsimile:
(000) 000-0000
Section
3.3 Amendments and
Waivers.
(a) Any
provision of this Guaranty may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed, in the case of an amendment, by
the Parties, or in the case of a waiver, by the Party against whom the waiver is
to be effective.
(b) The
failure at any time of a Party to require performance by the other Party of any
responsibility or obligation required by this Guaranty 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 Guaranty 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. The rights and remedies herein provided will be cumulative
and not exclusive of any rights or remedies provided by law.
Section
3.4 Choice of
Law. This Guaranty shall be construed and enforced in
accordance with and governed by the laws of the ROC, without giving effect to
the principles of conflict of laws thereof.
Section
3.5 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
Guaranty shall be brought in a court located in the Xxxxxx Xxxxxxxx Xxxxx,
Xxxxxx and each of the Parties hereby consents and submits to the exclusive
jurisdiction of such court (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by Applicable Law, any objection which it may now or hereafter
have to the
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CONFIDENTIAL
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.
Section
3.6 Counterparts. This
Guaranty may be executed in several counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
Section
3.7 Headings. The
headings of the Articles and Sections in this Guaranty are provided for
convenience of reference only and shall not be deemed to constitute a part
hereof.
Section
3.8 Severability. Should
any provision of this Guaranty 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 Guaranty shall remain in
full force and effect in all other respects. Should any provision of
this Guaranty be or become ineffective because of changes in Applicable Law or
interpretations thereof, or should this Guaranty fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Guaranty shall not be affected thereby. If such circumstances
arise, the Parties shall negotiate in good faith appropriate modifications to
this Guaranty to reflect those changes that are required by Applicable
Law.
[SIGNATURE
PAGES FOLLOW]
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NTC/MICRON
CONFIDENTIAL
IN
WITNESS WHEREOF, this Guaranty has been executed and delivered as of the date
first written above.
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NANYA
TECHNOLOGY CORPORATION
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By:
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/s/ Xxx
Xxxx
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Xxx
Xxxx
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President
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THIS
IS A SIGNATURE PAGE FOR THE MICRON GUARANTY AGREEMENT
ENTERED
INTO BY AND BETWEEN NTC AND MICRON
NTC/MICRON
CONFIDENTIAL
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MICRON
TECHNOLOGY, INC.
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By:
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/s/ D. Xxxx
Xxxxxx
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D.
Xxxx Xxxxxx
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President
and Chief Operating
Officer
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THIS
IS A SIGNATURE PAGE FOR THE MICRON GUARANTY AGREEMENT
ENTERED
INTO BY AND BETWEEN NTC AND MICRON
