SUPPLY AGREEMENT
Exhibit
10.69
[***] DENOTES
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
INTEL/MICRON
CONFIDENTIAL
This
SUPPLY AGREEMENT (the “Agreement”),
is
made and entered into as of this 27th day of February, 2007 (the “Effective
Date”),
by
and between Micron Semiconductor Asia Pte. Ltd., a Singapore private limited
company (“Micron
Singapore”),
and
IM
Flash
Singapore, LLP, a Singapore limited liability partnership
(the
“Joint
Venture Company”).
RECITALS
A. The
Joint
Venture Company is engaged in the manufacturing, assembly and testing of
NAND
Flash Memory Products (as defined hereinafter) for Micron
Singapore.
B. Micron
Singapore and the Joint Venture Company (each, a “Party”
and
collectively, the “Parties”)
desire
the Joint Venture Company to
supply
Products,
including Secondary Silicon,
for
Micron
Singapore in accordance with Micron Singapore’s Sharing Interest upon
the
terms and subject to the conditions set forth in this Agreement.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the Parties intending to be legally bound
do
hereby agree as follows:
ARTICLE
1
DEFINITIONS;
CERTAIN INTERPRETIVE 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 in
Exhibit
A.
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 of the Schedules
will
apply only to the corresponding Section or subsection of this Agreement,
(3)
each accounting term not otherwise defined in this Agreement has the meaning
commonly applied to it in accordance with Modified GAAP, (4)
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words
in
the singular include the plural and visa versa, (5) the term “including”
means
“including without limitation,” and (6) 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. 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
and all
references to “quarter(ly),”
“month(ly)”
or
“year(ly)”
will
mean Fiscal Quarter, Fiscal Month or Fiscal Year, respectively.
(b) No
provision of this Agreement will be interpreted in favor of, or against,
any of
the Parties by reason of the extent to which any such Party or its counsel
participated in the drafting thereof or by reason of the extent to which
any
such provision is inconsistent with any prior draft of this Agreement or
such
provision.
ARTICLE
2
OBLIGATIONS
OF THE JOINT VENTURE COMPANY;
PROCESSES
AND CONTROLS
2.1 General
Obligations.
The
Joint Venture Company will (1)
supply Product to Micron Singapore in accordance with the purchasing process
set
forth in Article
4
hereof;
(2) develop its Facilities and operations to meet Capacity according to the
Initial Business Plan, as may be amended thereafter, and the Operating Plan
and
the obligations set forth herein, including Sections
2.2, 2.5 and 2.9;
(3)
supply Products which meet the Specification(s), Price, Yield, Cycle-Time,
and
Quality and Reliability as agreed by the Parties; and (4) operate its Facilities
so that Product output from any one Facility matches the other Facilities
in
form, fit and function, in accordance with Section
2.14.
2.2 Products
to Supply.
The
Joint Venture Company will manufacture, assemble and test Products for Micron
Singapore in accordance with the Operating Plan and applicable Specifications,
developed in response to Micron Singapore’s Demand Forecast provided to the
Joint Venture Company in accordance with Article
3
below.
2.3 Process
and Design Information.
Micron
Singapore agrees to provide to the Joint Venture Company: (i) such process
technology or information as is required to be disclosed under the Joint
Development Program Agreement and the Technology License Agreement; and (ii)
design information reasonably required to manufacture NAND Flash Memory
Wafers.
2.4 Control;
Processes.
The
Joint Venture Company and Micron Singapore will review the Joint Venture
Company’s control and process mechanisms, including but not limited to such
mechanisms that are utilized to ensure that all parameters of the Specification,
including the Performance Criteria, are met or exceeded in the Joint Venture
Company’s manufacture of Products by either the Joint Venture Company or its
approved subcontractor for Micron Singapore. The Parties agree to work together
in good faith to define mutually agreeable control and process mechanisms
including the following:
[***].
2.5 Equipment,
Systems, Materials.
Except
as
provided in other Joint Venture Documents, the
Joint
Venture Company shall be responsible for procuring all
manufacturing
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equipment,
tools, automated material handling systems therein and materials, including
Prime Wafers, which are reasonably required for the Joint Venture Company
to
achieve the Operating Plan. The Joint Venture Company shall endeavor to manage
the entire supply chain, including equipment, materials, systems, maintenance
and subcontractors and vendors, to create efficiency and maximize the
Performance Criteria.
2.6 Production
Masks.
Unless
otherwise agreed with Micron Singapore, the Joint Venture Company or its
subcontractors will be responsible to obtain, maintain, repair and replace
masks
used in the production of Products.
Such
masks will only be used in the production of Products for Micron Singapore.
Production masks will be repaired and replaced solely at mask operations
which
have been approved by Micron Singapore, and which approval shall not be
unreasonably withheld. The Joint Venture Company or its subcontractors will
retain possession, but not ownership of any underlying copyrights, maskworks
or
other intellectual property, of any physical production masks which the Joint
Venture Company has made under this Section
2.6.
2.7 Designation
of WIP.
At
Micron
Singapore’s option, the Joint Venture Company will ensure that WIP at Facilities
or its subcontractor’s facilities is designated for Micron Singapore from Wafer
Start. If Micron Singapore does not elect to have WIP so designated, the
Joint
Venture Company will designate the WIP for Micron Singapore after Probe
Testing.
Custom
Product of Micron Singapore, if any, must be designated as for Micron Singapore
from Wafer Start at all the Facilities or its subcontractor’s
facilities.
2.8 Subcontractors.
The
Joint Venture Company may utilize subcontractors to perform any portion of
the
manufacture, assembly and test process in making Products for Micron Singapore,
subject to all subcontractors being approved by the Members, and which approval
shall not be unreasonably withheld. The
Joint
Venture Company will ensure that all contracts with subcontractors will provide
the Joint Venture Company with the same level of access and controls as set
forth in the Agreement, including Sections
2.4, 2.9, 2.10, 2.11 and 2.12 and Article 5.
2.9 Staffing.
The
Joint Venture Company shall adequately staff its Facilities, and ensure that
its
subcontractors adequately staff their facilities, to sustain and manage
production of Product for Micron Singapore, including the obligations set
forth
in Section
2.1
and
meeting scheduled commitments, including the Operating Plan and the Performance
Criteria.
2.10 Business
Continuity Plan.
The
Joint Venture Company will develop a process (the “Business
Continuity Plan”)
to
recover the production process in the event of a natural disaster or any
other
event that disrupts the production process or the ability of the Joint Venture
Company to meet its delivery commitments to Micron Singapore or satisfy customer
orders. If requested by Micron Singapore, the Joint Venture Company will
review
its Business Continuity Plan with Micron Singapore and make changes as agreed
with Micron Singapore, subject to any confidentiality requirements.
2.11 [***].
In
addition to the quarterly review and monthly report requirements set forth
in
Sections
3.2 and 3.3,
the
Joint Venture Company will promptly notify Micron Singapore of [***].
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2.12 Traceability
and Data Retention.
Micron
Singapore and the Joint Venture Company shall review the Joint Venture Company’s
process traceability system [***].
The
Joint Venture Company agrees to maintain such data for a
minimum
of [***].
The
Joint
Venture Company will endeavor to provide Micron Singapore [***].
2.13 Additional
Customer Requirements.
Micron
Singapore will inform the Joint Venture Company in writing of any auditable
supplier requirements of
any
Micron Singapore customer relating
to any Facility at which Product is manufactured, assembled or
tested.
The
Parties will work together in good faith to resolve such requests
2.14 Transfer;
Equivalency
of Operations.
Micron
Singapore will cooperate in good faith with the Joint Venture Company to
transfer Micron Singapore’s technology to the Joint Venture Company, if such
technology transfer is required under the Joint Venture Documents. The Joint
Venture Company will establish similar baseline Product performance standards,
including form, fit and function, at Facilities and subcontracted facilities.
Such efforts will include the provision of up to date equivalent materials
(including correlation wafers), data and information.
ARTICLE
3
PLANNING
MEETINGS AND FORECASTS;
PERFORMANCE
REVIEWS AND REPORTS
3.1 Planning
and Forecasting.
(a) Micron
Singapore will quarterly provide the Joint Venture Company, in a timeframe
to be
mutually agreed by the Parties to meet customer expectations, with a written
demand forecast for [***]
([***])
quarters corresponding to the Joint Venture Company’s Fiscal Quarters or as may
be otherwise agreed between the Parties. This demand will include desired
finished product breakout by design id, technology node, wafer as finished
goods
or package type (“Demand
Forecast”).
(b) The
Joint
Venture Company shall furnish Micron Singapore with a written response within
[***]
([***])
Business Days indicating a response regarding capacity and what portion of
the
demand that the Joint Venture Company can commit to meet. This written response
(the “Planning
Forecast”)
will
include:
[***]
(c) Based
on
the Planning Forecast, the Joint Venture Company shall develop a [***]
([***])
Fiscal
Quarter proposed Product loading plan for such period (“Proposed
Loading Plan”).
The
Joint Venture Company shall provide Micron Singapore with the Proposed Loading
Plan at least [***]
([***])
Business Days prior to its review by the Manufacturing Committee.
(d) The
Joint
Venture Company will submit the Proposed Loading Plan, Planning Forecast
and
other requested information to the Manufacturing Committee for
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endorsement.
Once endorsed by the Manufacturing Committee, the Proposed Loading Plan shall
become part of the Operating Plan.
3.2 Performance
Reviews and Reports.
The
Joint Venture Company shall meet with Micron Singapore each quarter to discuss
the Performance Criteria and the most recent monthly report. The monthly
report
will be distributed to Micron Singapore monthly, on a date to be agreed by
the
Parties, and will include the following information:
| (a) |
Describes
[***];
|
| (b) |
Describes
[***];
|
| (c) |
Describes
[***].
|
| (d) |
Identifies
[***].
|
3.3 Monthly
Review.
In
addition, the Parties shall hold a monthly meeting, on a date to be agreed
by
the Parties, with the primary purpose of [***].
ARTICLE
4
PURCHASE
AND SALE OF PRODUCTS
4.1 Product
Quantity.
Micron
Singapore shall purchase from the Joint Venture Company a percentage, equal
to
Micron Singapore’s Sharing Interest (as the same may change from time to time),
of all of the Joint Venture Company’s output of Products that meet the
Specifications. The Joint Venture Company shall produce
all Products in accordance with the Operating Plan developed in response
to
Micron
Singapore’s Demand Forecast under Article
3
above.
If
Micron
Singapore fails to purchase its full Sharing Interest of the Joint Venture
Company’s output, produced in accordance with the Operating Plan (“Under-loading”),
then
the increased Prices associated with such Under-loading shall be isolated
and
charged solely to Micron Singapore, which Micron Singapore shall remain solely
responsible for paying. Notwithstanding the foregoing, Micron Singapore may
elect, but is not obligated, to purchase Product in excess of its Sharing
Interest only by
mutual
agreement of the other Member.
4.2 Secondary
Silicon.
Any
Secondary Silicon produced by the Joint Venture Company or its subcontractors
will be provided [***]
by the
Joint Venture Company to the Members in a percentage equal to Micron Singapore’s
Sharing Interest (as the same may change from time to time). ALL SECONDARY
SILICON PROVIDED HEREUNDER IS PROVIDED ON AN “AS IS,” “WHERE IS” WITH ALL FAULTS
AND DEFECTS BASIS WITHOUT WARRANTY OF ANY KIND.
4.3 Placement
of Purchase Orders.
Prior
to the commencement of every Fiscal Quarter or another time period agreed
by the
Parties in conjunction with the planning cycle specified in Article
3,
the
Joint Venture Company shall place a non-cancelable blanket purchase order
in
writing (via e-mail or facsimile transmission) for the quantity of Product
to be
supplied by the Joint Venture Company in the following Fiscal Quarter as
indicated in the Operating Plan (each such order, a “Purchase
Order”).
Micron Singapore may issue change orders to such Purchase
Orders
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to
reflect changes in the Operating Plan, provided that such changes can be
reasonably accommodated by the Joint Venture Company
without
disrupting ongoing manufacturing operations. Micron Singapore may also elect
to
place out-of-cycle purchase order of Product, including expedited Probed
Wafers,
to the Joint Venture Company on an as-needed basis. The
terms
and conditions of this Agreement supersede the terms and conditions contained
in
either Party’s sales or purchase documentation provided in connection herewith
unless expressly agreed otherwise in a writing signed by each
Party.
4.4 Shortfall.
The
Joint Venture Company shall immediately notify Micron Singapore in writing
of
any inability to meet a Purchase Order commitment to Micron
Singapore.
4.5 Acceptance
of Purchase Order.
Each
Purchase Order that corresponds to the Operating Plan in the manner contemplated
by Section
4.3
and is
otherwise free of errors shall be deemed accepted by the Joint Venture Company
upon receipt and shall be binding on the Parties to the extent not inconsistent
with the Operating Plan.
4.6 Content
of Purchase Orders.
Each
Purchase Order shall specify the following items:
| (a) |
Purchase
Order number;
|
| (b) |
Description
and part number of each Product;
|
| (c) |
Forecasted
quantity of each different Product and the Sharing Interest portion
thereof for the calendar month;
|
| (d) |
Forecasted
unit Price and total forecasted Price for each different Product,
and
total forecasted Price for all Products
ordered;
|
| (e) |
Level
of Probe Testing;
|
| (f) |
Marking
specification and packaging requirements;
|
| (g) |
Requested
delivery date;
|
| (h) |
Place
of delivery; and
|
| (i) |
Other
terms (if any).
|
4.7
Taxes.
(a) General.
All sales, use and other transfer taxes imposed directly on or solely as
a
result of the supplying of Products and the payments therefore provided herein
shall be stated separately on the Joint Venture Company’s invoice, collected
from Micron Singapore and shall
be
remitted by the Joint Venture Company to the appropriate tax authority
(“Recoverable
Taxes”),
unless
Micron Singapore provides valid proof of tax exemption
prior
to
the effective date of the transfer of the Products or otherwise as permitted
by
law prior to the time the Joint Venture
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Company
is required to pay such taxes to the appropriate tax 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 Micron
Singapore is required by law, the Joint Venture Company shall have sole
responsibility for payment of said taxes to the appropriate tax authorities.
In
the event such taxes are Recoverable Taxes and the Joint Venture Company
does
not collect tax from Micron Singapore or pay such taxes to the appropriate
governmental entity on a timely basis, and is subsequently audited by any
tax
authority, liability of Micron Singapore 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. Notwithstanding anything
herein to the contrary, taxes other than Recoverable Taxes shall not be
reimbursed by Micron Singapore, 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) Withholding
Taxes. In the event that Micron Singapore is prohibited by law from making
payments to the Joint Venture Company unless Micron Singapore deducts or
withholds taxes therefrom and remits such taxes to the local taxing
jurisdiction, then Micron Singapore shall duly withhold and remit such taxes
and
shall pay to the Joint Venture Company the remaining net amount after the
taxes
have been withheld. Such taxes shall not be Recoverable Taxes and Micron
Singapore shall not reimburse the Joint Venture Company for the amount of
such
taxes withheld.
4.8 Invoicing;
Payment.
The
Joint Venture Company shall invoice Micron Singapore on a monthly basis for
the
Price of the Products provided and all overhead, interest, general and
administrative and other costs, including all start-up costs for Facilities
which shall be split between the Members based on Sharing Interest. All amounts
owed under this Agreement are stated, calculated and shall be paid in United
States Dollars. Except as otherwise specified in this Agreement, Micron
Singapore shall pay the Joint Venture Company for the amounts due, owing,
and
duly invoiced under this Agreement within [***]
([***])
days
following delivery of an invoice therefor to such place as the Joint Venture
Company may reasonably direct therein.
4.9 Payment
to Subcontractors.
The
Joint Venture Company shall be responsible for and shall hold Micron Singapore
harmless for any and all payments to its vendors or subcontractors utilized
in
the performance of this Agreement.
4.10 Delivery,
Title and Risk of Loss.
The
Joint Venture Company, in order to ensure timely and complete shipment of
Products to Micron Singapore, shall arrange for and pay for all shipping
charges, insurance, taxes, customs charges and any fees and duties in connection
with such shipment. The Joint Venture Company shall hold title to and risk
of
loss of Products
under
this Agreement, including WIP held by subcontractors,
until
tender to the carrier, at which time title and risk of loss and damage to
Products shall transfer to Micron Singapore.
4.11 Packaging.
All
shipment packaging of the Products shall be in conformance with the
Specifications, the Micron Singapore’s reasonable instructions, and general
industry standards, and shall be resistant to damage that may occur during
transportation. Marking on the packages
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shall
be
made by the Joint Venture Company in accordance with Micron Singapore’s
reasonable instructions.
4.12 Shipment.
All
Products shall be prepared for shipment in a manner that: (i) follows good
commercial practice; (ii) is acceptable to common carriers for shipment at
the
lowest rate; and (iii) is adequate to ensure safe arrival. The Joint Venture
Company shall xxxx all containers with necessary lifting, handling, and shipping
information, Purchase Order number, date of shipment, and the names of Micron
Singapore and the applicable customer. If no instructions are given, the
Joint
Venture Company shall select the most price effective carrier, given the
time
constraints known to the Joint Venture Company. At Micron Singapore’s request,
the Joint Venture will provide drop-shipment of Products to Micron Singapore’s
customers. Such shipment service may be provided by a subcontractor to the
Joint
Venture Company provided that title remains with the Joint Venture Company
and
then passes to Micron Singapore upon tender to the carrier.
4.13 Customs
Clearance.
Upon
Micron Singapore’s request, the Joint Venture Company will promptly provide
Micron Singapore with a statement of origin for all Products and with applicable
customs documentation for Products wholly or partially manufactured outside
of
the country of import.
ARTICLE
5
VISITATIONS,
AUDITS
5.1 Visits.
The
Joint Venture Company will support Micron Singapore’s reasonable requests for
visits to Facilities and meetings for the purpose of reviewing performance
of
production of Products
including requests for further information and assistance in troubleshooting
performance issues.
Such
requests shall be reasonably granted by the Joint Venture Company so long
as
such visits and meetings do not unduly interfere with the Joint Venture
Company’s operations and business affairs.
5.2 Audit.
Micron
Singapore representatives and key customer representatives, upon Micron
Singapore’s request, shall be allowed to visit the Joint Venture Company’s
Facilities during normal working hours upon reasonable advanced written notice
to the Joint Venture Company for the purposes of monitoring production processes
and compliance with any requirements set forth in this Agreement and the
Specifications. Upon completion of the audit, the Joint Venture Company and
Micron Singapore will agree to an audit closure plan, to be documented in
the
audit report issued by Micron Singapore.
5.3 Financial
Audit.
Micron
Singapore reserves the right to have the Joint Venture Company’s books and
records related to the Pricing hereunder inspected and audited not more than
[***]
during
any Fiscal Year to ensure compliance with Schedule
4.8
of this
Agreement in regards to Pricing. Such audit will be performed by an independent
third party auditor acceptable to both Parties at Micron Singapore’s expense.
Micron Singapore shall provide [***]
([***])
days
advance written notice to the Joint Venture Company of its desire to initiate
an
audit and the audit shall be scheduled so that it does not adversely impact
or
interrupt the Joint Venture Company’s business operations. If the audit reveals
any material discrepancies, the Joint Venture Company or Micron Singapore
shall
reimburse the other, as applicable, for any material discrepancies
within
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[***]
([***])
days
after completion of the audit. The results of such audit shall be kept
confidential by the auditor and only the discrepancies shall be reported
to the
Parties, and be limited to discrepancies identified by the audit.
Notwithstanding the foregoing, any auditor reports shall not disclose any
Joint
Venture Company pricing or terms of purchase for any purchases of materials
or
equipment hereunder to Micron Singapore, absent written agreement from the
Members’ respective legal counsel. If any audit reveals a material discrepancy,
Micron Singapore may increase the frequency of such audits to [***]
for the
subsequent [***]
([***])
month
period.
5.4 Subcontractor;
Vendor Visits.
The
Joint Venture Company
will use
commercially reasonable efforts to ensure that all
contracts with vendors and subcontractors will provide the Joint Venture
Company
and Micron Singapore with the right to visit and audit rights similar to
those
set forth in this Article
5.
ARTICLE
6
WARRANTY;
HAZARDOUS MATERIALS; DISCLAIMER
6.1 Product
Warranty.
The
Joint Venture Company makes the following warranties regarding Products
furnished hereunder, which warranties shall survive any delivery, inspection,
acceptance, payment or resale of the Products:
(a) Products
conform to all agreed Specifications;
(b) Products
are free from defects in materials or workmanship; and
(c) The
Joint
Venture Company has the necessary right, title, and interest to provide
Products
to the Joint Venture Company
and the
Products will be free of liens and encumbrances, not including any implied
warranty of non-infringement.
6.2 Warranty
Claims.
Within
a period of time, not to exceed the lesser of the actual warranty period
applicable to the end customer for the NAND Flash Memory Product at issue
or
eighteen (18) months from the date of the delivery of the Products at issue
to
the Micron Singapore (“Warranty
Claim Period”),
Micron Singapore shall notify the Joint Venture Company if it believes that
any
Product does not meet the Product warranty set forth in Section
6.1.
Micron
Singapore shall return such Products to the Joint Venture Company as
directed
by the Joint Venture Company. If a Product is determined not to be in compliance
with such warranty, then Micron Singapore shall be entitled to return such
Product and cause the Joint Venture Company to replace at the Joint Venture
Company’s expense or, at Micron Singapore’s option, receive a credit or refund
of any monies paid to the Joint Venture Company in respect of such Product,
save
that such credit or refund shall in no event exceed on a per-unit basis the
final price paid for the Product under this Agreement. The basis for such
refund
or credit shall be the Price on a per-unit basis in the month in which the
returned Product was invoiced to the Micron
Singapore. THE FOREGOING REMEDY IS MICRON SINGAPORE’S SOLE AND EXCLUSIVE REMEDY
FOR THE JOINT VENTURE COMPANY’S FAILURE TO MEET ANY WARRANTY OF SECTION
6.1.
6.3 Inspections.
Members
may, upon reasonable advance written notice, request samples of Products
(including WIP) during production for purposes of determining compliance
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with
the
requirements and Specification(s) hereunder, provided that the provision
of such
samples shall not materially impact the Joint Venture Company’s performance to
the Operating Plan or its ability to meet delivery requirements under any
accepted Purchase Order. Any samples provided hereunder shall be: (i) limited
in
quantity to the amount reasonably necessary for the purposes hereunder; (ii)
included in the pricing; and (iii) included in any performance requirements,
if
any. The Joint Venture Company shall provide reasonable assistance for the
safety and convenience of Micron Singapore in obtaining the samples in such
manner as shall not unreasonably hinder or delay the Joint Venture Company’s
performance.
6.4 Hazardous
Materials.
(a) If
Products provided hereunder include Hazardous Materials as determined in
accordance with Applicable Law, the
Joint
Venture Company represents and
warrants
that the
Joint Venture Company and the Joint Venture Company’s employees,
agents,
and subcontractors
actually
working
with
such
materials in providing the Products hereunder to Micron Singapore shall
be
trained in accordance with Applicable Law regarding
the
nature of and hazards associated with the handling, transportation, and use
of
such Hazardous Materials, as applicable to the Joint Venture Company.
(b) To
the
extent required by Applicable
Law, the
Joint Venture Company shall provide Micron Singapore with Material Safety
Data
Sheets (MSDS) either prior to or accompanying any delivery of Products to
Micron
Singapore.
6.5 Disclaimer.
EXCEPT
AS OTHERWISE EXPRESSLY PROVIDED IN THIS ARTICLE
6,
THE
JOINT VENTURE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
PURPOSE, NON-INFRINGEMENT OR OTHERWISE, WITH RESPECT TO THE PRODUCTS
PROVIDED UNDER THIS AGREEMENT. THE WARRANTIES WILL NOT APPLY TO:
(i) ANY
WARRANTY CLAIM OR ISSUE, OR DEFECT TO THE EXTENT CAUSED BY TECHNICAL MATERIALS
PROVIDED OR SPECIFIED BY, THROUGH OR ON BEHALF OF THE MEMBERS OR COMMITTEES
OF
MEMBERS, INCLUDING BUT NOT LIMITED TO PRODUCT DESIGNS, TECHNOLOGY AND TEST
PROGRAMS; OR (ii) THE WARRANTIES WILL NOT APPLY TO
ANY OF
THE PRODUCTS THAT HAVE BEEN REPAIRED OR ALTERED, EXCEPT AS AUTHORIZED BY
THE
JOINT VENTURE COMPANY, OR WHICH ARE SUBJECTED
TO
MISUSE, NEGLIGENCE, ACCIDENT OR ABUSE.
ARTICLE
7
CONFIDENTIALITY;
OWNERSHIP
7.1 Protection
and Use of Confidential Information.
All
information provided, disclosed or obtained in the performance of any of
the
Parties’ activities under this Agreement shall be subject to all applicable
provisions of the Confidentiality Agreement. Furthermore, the terms and
conditions of this Agreement shall be considered “Confidential
Information”
under
the
Confidentiality Agreement for which each Party is considered a “Receiving
Party”
under
such
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agreement.
To the extent there is a conflict between this Agreement and the Confidentiality
Agreement, the terms of this Agreement shall control.
7.2 Masks.
Any
masks produced pursuant to this Agreement will be based on Product designs
owned
by Intel and shall be treated as Confidential Information of Intel.
7.3 Intellectual
Property Ownership.
Ownership of any intellectual property developed by the Joint Venture Company
will be governed by the Omnibus IP Agreement.
ARTICLE
8
INDEMNIFICATION
8.1 Mutual
General Indemnity.
Subject
to Article
9,
each
Party (“Indemnifying
Party”)
shall
indemnify, defend and hold harmless the other Party (“Indemnified
Party”)
from
and against any and all Indemnified Losses based on or attributable to any
Third
Party Claim or threatened Third Party Claim arising under this Agreement
and as
a result of the Indemnifying Party’s negligence, gross negligence or willful
misconduct of the Indemnifying Party or any of its respective officers,
directors, employees, agents or subcontractors. Notwithstanding the foregoing,
this Section
8.1
shall
not apply to any claims or losses based on or attributable to intellectual
property infringement.
8.2 Indemnification
Procedures.
(a) Promptly
after the receipt by any Indemnified Party of a notice of any Third Party
Claim
that an Indemnified Party seeks to be indemnified under this Agreement, such
Indemnified Party shall give written notice of such Third Party Claim to
the
Indemnifying Party, stating in reasonable detail the nature and basis of
each
allegation made in the Third Party Claim and the amount of potential Indemnified
Losses with respect to each allegation, to the extent known, along with copies
of the relevant documents received by the Indemnified Party evidencing the
Third
Party Claim and the basis for indemnification sought. Failure of the Indemnified
Party to give such notice shall not relieve the Indemnifying Party from
liability on account of this indemnification, except if and only to the extent
that the Indemnifying Party is actually prejudiced by such failure or delay.
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 Third Party Claim. The Indemnifying Party shall have the
right
to assume the defense of the Indemnified Party with respect to such Third
Party
Claim upon written notice to the Indemnified Party delivered within thirty
(30)
days after receipt of the particular notice from the Indemnified Party. So
long
as the Indemnifying Party has assumed the defense of the Third Party Claim
in
accordance herewith and notified the Indemnified Party in writing thereof,
(i)
the Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party 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 Third Party Claim and prior
to
such time as the Indemnifying Party has notified the Indemnified Party that
it
has assumed the defense of such Third Party Claim, (ii) the Indemnified Party
shall not file any papers or, other than in connection with a settlement
of the
Third Party Claim, consent to the entry of any judgment without the prior
written consent of the
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11
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Indemnifying
Party (not to be unreasonably withheld, conditioned or delayed) and (iii)
the
Indemnifying Party will not consent to the entry of any judgment or enter
into
any settlement with respect to the Third Party Claim (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). Whether or not the Indemnifying Party shall have
assumed the defense of the Indemnified Party for a Third Party Claim, such
Indemnifying Party shall not be obligated to indemnify and hold harmless
the
Indemnified Party hereunder for any consent to the entry of judgment or
settlement entered into with respect to such Third Party Claim without the
Indemnifying Party’s prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
(b) Equitable
Remedies.
In the
case of any Third Party Claim where the Indemnifying Party reasonably believes
that it would be appropriate to settle such Third Party Claim using equitable
remedies (i.e., remedies involving the future activity and conduct of the
Joint
Venture Company), the Indemnifying Party and the Indemnified Party shall
work
together in good faith to agree to a settlement; provided, however, that
no
Party shall be under any obligation to agree to any such
settlement.
(c) Treatment
of Indemnification Payments; Insurance Recoveries.
Any
indemnity payment under this Agreement shall be decreased by any amounts
actually recovered by the Indemnified Party under third party insurance policies
with respect to such Indemnified Losses (net of any premiums paid by such
Indemnified Party under the relevant insurance policy), each Party agreeing
(i)
to use all reasonable efforts to recover all available insurance proceeds
and
(ii) to the extent that any indemnity payment under this Agreement has been
paid
by the Indemnifying Party to the Indemnified Party prior to the recovery
by the
Indemnified Party of such insurance proceeds, the amount of such insurance
proceeds actually recovered by the Indemnified Party shall be promptly paid
to
the Indemnifying Party.
(d) Certain
Additional Procedures.
The
Indemnified Party shall cooperate and assist the Indemnifying Party in
determining the validity of any Third Party Claim for indemnity by the
Indemnified Party and in otherwise resolving such matters. The Indemnified
Party
shall cooperate in the defense by the Indemnifying Party of each Third Party
Claim (and the Indemnified Party and the Indemnifying Party agree with respect
to all such Third Party Claims that a common interest privilege agreement
exists
between them), including: (i) permitting the Indemnifying Party to discuss
the
Third Party Claim with such officers, employees, consultants and representatives
of the Indemnified Party as the Indemnifying Party reasonably requests; (ii)
providing to the Indemnifying Party copies of documents and samples of products
as the Indemnifying Party reasonably requests in connection with defending
such
Third Party Claim; (iii) preserving all properties, books, records, papers,
documents, plans, drawings, electronic mail and databases of the Joint Venture
Company and relating to matters pertinent to the conduct of the Joint Venture
Company 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 Indemnifying Party; (iv) 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; (v) 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; and
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12
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(vi)
except to the extent inconsistent with the Indemnified Party’s obligations under
applicable law and except to the extent that to do so would subject the
Indemnified Party or its employees, agents or representatives to criminal
or
civil sanctions, unless ordered by a court to do otherwise, not producing
documents to a third party until the Indemnifying Party has been provided
a
reasonable opportunity to review, copy and assert privileges covering such
documents.
ARTICLE
9
LIMITATION
OF LIABILITY
9.1 Damages
Limitation.
SUBJECT
TO SECTION
9.4,
IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES OR ANY PUNITIVE OR EXEMPLARY
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH
DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER
THEORY OF LIABILITY, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF
SUCH DAMAGES.
9.2 THE
PARTIES AGREE THAT TO THE EXTENT A CLAIM ARISES UNDER THIS AGREEMENT, THE
CLAIM
SHALL BE BROUGHT UNDER THIS AGREEMENT.
9.3 Damages
Cap.
SUBJECT
TO SECTION
9.4,
IF
EITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY MATTER ARISING FROM
THIS
AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, WARRANTY, EQUITY,
NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM
ARISING
FROM AN ACT OR OMISSION, NEGLIGENT OR OTHERWISE, OF THE LIABLE PARTY), THE
AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE PARTY WITH RESPECT TO ANY
BREACH, PERFORMANCE, NONPERFORMANCE, ACT OR OMISSION HEREUNDER WILL NOT EXCEED
THE LESSER OF THE ACTUAL DAMAGES ALLOWED HEREUNDER; OR (i) IN THE CASE OF
THE
JOINT VENTURE COMPANY BRINGING A CLAIM FOR TEN MILLION DOLLARS ($10,000,000)
PER
CLAIM OR SERIES OF RELATED CLAIMS ARISING FROM THE SAME CAUSE; OR (ii) IN
THE
CASE OF PARENT BRINGING A CLAIM: (a) NON-CUSTOM PRODUCTS SOLD BY THE JOINT
VENTURE COMPANY TO BOTH MEMBERS, TEN MILLION DOLLARS ($10,000,000) PER CLAIM
OR
SERIES OF RELATED CLAIMS ARISING FROM THE SAME CAUSE; OR (b) IN THE CASE
OF
CUSTOM PRODUCTS, THE AMOUNT OF DAMAGES, IF ANY, ACTUALLY RECOVERED BY THE
JOINT
VENTURE COMPANY FROM ANY THIRD PARTY RELATING TO THE PARENT’S CLAIM OR SERIES OF
RELATED CLAIMS ARISING FROM THE SAME CAUSE.
9.4 Exclusions
and Mitigation.
Section
9.1
and
Section
9.3
will not
apply to either Party’s breach of Article
7.
Section
9.3 will
not
apply to Micron Singapore’s failure to meet either an Under-loading charge
under
Section 4.1
or a
payment obligation which is due and payable under
this Agreement. Each Party shall have a duty to use commercially reasonable
efforts to mitigate damages for which the other Party is
responsible.
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13
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9.5 Losses. Except
as
provided under Section
8.1,
the
Joint Venture Company and Micron Singapore each shall be responsible for
Losses
to their respective, tangible, personal or real property (whether owned or
leased), and each Party agrees to look only to their own insurance arrangements
with respect to such damages. The Joint Venture Company and Micron Singapore
waive all rights to recover against each other, including each Party’s insurers’
subrogation rights, if any, for any loss or damage to their respective tangible
personal property or real property (whether owned or leased) from any cause
covered by insurance maintained by each of them, including their respective
deductibles or self-insured retentions. Notwithstanding the foregoing, in
the
event of a loss hereunder involving a property, transit or crime event or
occurrence that: (i) is insured under Micron Singapore’s insurance policies;
(ii) a single insurance deductible and/or limits applies; and (iii) the loss
event or occurrence affects the insured ownership or insured legal interests
of
both Parties, then the Parties shall share the cost of the deductible and
share
the limits in proportion to each Party’s insured ownership or legal interests in
relative proportion to the total insured ownership or legal interests of
the
Parties.
ARTICLE
10
TERM
AND TERMINATION;
SUPPLY
OBLIGATIONS FOLLOWING TRIGGERING EVENT
10.1 Term.
The
term of this Agreement commences on the Effective Date and continues in effect
until the first to occur of (a) the Liquidation Date or (b) a Minority Closing,
unless terminated sooner solely by mutual agreement (such period of time,
the
“Term”).
10.2 Termination.
This
Agreement may not be terminated for any reason, including breach by a Party,
before termination pursuant to Section
10.1.
10.3 Masks.
On
the
Liquidation Date, the Joint Venture Company shall immediately transfer
possession of production masks possessed by it at each Facility to the Member
that then owns that Facility as of the Liquidation Date.
10.4 Survival.
Termination of this Agreement shall not affect any of the Parties’ respective
rights accrued or obligations owed before termination, including any rights
or
obligations of the Parties in respect of any accepted Purchase Orders existing
at the time of termination. In addition, the following shall survive termination
of this Agreement for any reason: Sections
2.12, 6.2 and 6.5,
and
Articles
4, 7, 8, 9, 10 and 11.
10.5 Supply
Obligations Following Triggering Event.
Upon
the occurrence of a Triggering Event any supply obligations of the Parties
will
be as set forth in Article
13
of the
IMFS Agreement.
ARTICLE
11
MISCELLANEOUS
11.1 Force
Majeure Events.
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. A Force Majeure
Event shall operate to excuse a failure to perform an obligation hereunder
only
for the
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14
-
period
of
time during which the Force Majeure Event renders performance impossible
or
infeasible and only if the Party asserting Force Majeure as an excuse for
its
failure to perform has provided written notice to the other Party specifying
the
obligation to be excused and describing the events or conditions constituting
the Force Majeure Event. As used herein, “Force
Majeure Event”
means
the occurrence of an event or circumstance beyond the reasonable control
of the
party failing to perform, including, 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 authorities or courts; (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’s nonperformance hereunder.
11.2 Specific
Performance.
The
Parties agree that irreparable damage will result if this Agreement is not
performed in accordance with its terms, and the Parties agree that any damages
available at law for a breach of this Agreement would not be an adequate
remedy.
Therefore, the provisions hereof and the obligations of the Parties hereunder
shall be enforceable in a court of equity, or other tribunal with jurisdiction,
by a decree of specific performance, and appropriate preliminary or permanent
injunctive relief may be applied for and granted in connection therewith.
Such
remedies and all other remedies provided for in this Agreement shall, however,
be cumulative and not exclusive and shall be in addition to any other remedies
that a Party may have under this Agreement.
11.3 Assignment.
This
Agreement shall be binding upon and inure to the benefit of the permitted
successors and assigns of each Party hereto. Neither this Agreement nor any
right or obligation hereunder may be assigned or delegated by either Party
in
whole or in part to any other Person, other than a Wholly-Owned Subsidiary
of
such Party, without the prior written consent of the non-assigning Party.
Any
purported assignment in violation of the provisions of this Section
11.3
shall be
null and void and have no effect.
11.4 Compliance
with Laws and Regulations.
Each of
the Parties shall comply with, and shall use reasonable efforts to require
that
its respective subcontractors comply with, Applicable Laws relating to this
Agreement and the performance of a Party’s rights hereunder.
11.5 Notice.
All
notices and other communications hereunder shall be in writing and shall
be
deemed given upon (a) a transmitter’s confirmation of a receipt of a facsimile
transmission, (b) confirmed delivery by a standard overnight carrier or when
delivered by hand, (c) the expiration of five (5) Business Days after the
day
when mailed in the United States by certified or registered mail, postage
prepaid, or (d) delivery in Person, addressed at the following addresses
(or at
such other address for a party as shall be specified by like
notice):
In
the
case of the IM Flash Singapore, LLP:
|
IM
Flash Singapore, LLP
x/x
Xxxxx & Xxxxxxxx
Xxx
Xxxxxx Xxxxxxxxx #00-00
|
-
00
-
|
Xxxxxxxxx
000000
|
|
Attention:
Xxx Xxx Shin / Oh Xxxx Xxx
|
|
Facsimile
Number: x00 0000 0000
|
|
With
a mandatory copy to:
|
|
Intel
Corporation
|
|
0000
Xxxxxxx Xxxxxxx Xxxx.
Mail-Stop
SC4-203
Xxxxx
Xxxxx, XX 00000
|
|
Attention:
General Counsel
|
|
Facsimile
Number: (000) 000-0000
|
|
In
the case of Micron Singapore:
|
|
Micron
Semiconductor Asia Pte. Ltd.
000
Xxxxxxxxx Xx.
Xxxxxxxxx
000000
Attention:
Xxx Xxxxx Hwa
Facsimile
Number: x00 00000000
|
|
With
a mandatory copy to:
|
|
Micron
Technology, Inc.
0000
X. Xxxxxxx Xxx
Mail
Stop 0-000
Xxxxx,
XX 00000
|
|
Attention:
General Counsel
|
|
Facsimile
Number: (000)
000-0000
|
Either
Party may change its address for notices upon giving ten (10) days’ written
notice of such change to the other Party in the manner provided
above.
11.6 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.
11.7 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
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16
-
faith
appropriate modifications to this Agreement to reflect those changes that
are
required by Applicable Law.
11.8 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.
11.9 Amendment.
This
Agreement may not be modified or amended except by a written instrument executed
by or on behalf of each of the Parties to this Agreement.
11.10 Entire
Agreement.
This
Agreement and the applicable provisions of the Confidentiality Agreement,
which
are incorporated herein and made a part hereof, together with the Exhibits
and
Schedules hereto and the agreements and instruments expressly provided for
herein, 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.
11.11 Choice
of Law.
This
Agreement shall be construed and enforced in accordance with and governed
by the
laws of the Republic of Singapore, without giving effect to the principles
of
conflict of laws thereof.
11.12 Jurisdiction;
Venue.
Any
suit, action or proceeding seeking to enforce any provision of, or based
on any
matter arising out of or in connection with, this Agreement shall be brought
in
a state or federal court located in Delaware 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. Process in any such suit, action or proceeding
may be served on any party anywhere in the world, whether within or without
the
jurisdiction of any such court.
11.13 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.
11.14 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.
11.15 Insurance.
Without
limiting or qualifying the Joint Venture Company’s liabilities, obligations, or
indemnities otherwise assumed by the Joint Venture Company pursuant to this
Agreement, the Joint Venture Company shall maintain, at no charge to Micron
Singapore, with companies acceptable to Micron Singapore:
(a) Commercial
General Liability with limits of liability not less than $[***]
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17
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per
occurrence and including liability coverage for bodily injury or property
damage
(1) assumed in a contract or agreement pertaining to The Joint Venture Company’s
business and (2) arising out of The Joint Venture Company’s products, Services,
or work. The Joint Venture Company’s insurance shall be primary with respect to
liabilities assumed by The Joint Venture Company in this Agreement to the
extent
such liabilities are the subject of the Joint Venture Company’s insurance, and
any applicable insurance maintained by Micron Singapore shall be excess and
non-contributing. The above coverage shall name Micron Singapore as additional
insured as respects The Joint Venture Company’s work or services provided to or
on behalf of Micron Singapore.
(b) Automobile
Liability Insurance with limits of liability not less than $[***]
per
accident for bodily injury or property damage.
(c) Statutory
Workers’ Compensation coverage, including a Broad Form All States Endorsement in
the amount required by law, and Employers’ Liability Insurance in the amount of
$[***]
per
occurrence. Such insurance shall include mutual insurer’s waiver of
subrogation.
[Signature
page follows]
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18
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IN
WITNESS WHEREOF, this Agreement has been duly executed by and on behalf of
the
Parties hereto as of the Effective Date.
|
MICRON
SEMICONDUCTOR ASIA
PTE. LTD.
|
IM
FLASH SINGAPORE, LLP
|
|
By:
___ /s/ Xxxxx Xxx
|
By:___/s/
Xxx Xxxxx Hwa
|
|
Name:
___Alice Koh
|
Name:___Jen
Xxxxx Xxx
|
|
Title:
___Authorized Signatory
|
Title:___Interim
Authorized Signatory
|
THIS
IS THE SIGNATURE PAGE FOR THE SUPPLY AGREEMENT ENTERED INTO BY AND BETWEEN
MICRON SEMICONDUCTOR ASIA PTE. LTD. AND
IM
FLASH SINGAPORE, LLP
EXHIBIT
A
DEFINITIONS
“Affiliate”
means,
with respect to any specified Person, a Person that directly or indirectly,
including through one or more intermediaries, controls, or is controlled
by, or
is under common control with, the Person specified.
“Agreement”
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.
“Approved
Business Plan” shall
have the meaning set forth in the IMFS Agreement.
“Assembly
Outs”
shall
mean a Product for which the Assembly Services have been completed and meets
all
of the Assembly Specification applicable at such time and is not Secondary
Silicon or Rejects.
“Business
Continuity Plan”
shall
have the meaning set forth in Section
2.10
hereof.
“Business
Day”
means
a
day that is not a Saturday, Sunday or other day on which commercial banking
institutions in the Republic of Singapore are authorized or required by
Applicable Law to be closed.
“Capacity” means
the
rate of output (defined in terms of units per time period), at a particular
point in time, at which a particular Facility or set of Facilities of the
Joint
Venture Company (or of a third party on the Joint Venture Company’s behalf) is
capable of producing such units.
“Confidential
Information”
shall
have the meaning set forth in Section
7.1
hereof.
“Confidentiality
Agreement”
means
that Amended and Restated Mutual Confidentiality Agreement by and among the
Joint Venture Company, Intel, Micron, Intel Singapore, Micron Singapore and
IMFT
dated as of the Effective Date.
“Custom
Products”
shall
have the meaning set forth in the Product Designs Committee
Agreement.
“Cycle
Time”
means
the time required to process a unit through a portion of the manufacturing
process (e.g., fab, assembly, or final test) or through the manufacturing
process as a whole.
“Demand
Forecast”
shall
have the meaning set forth in Section
3.1(a)
hereof.
“Effective
Date”
shall
have the meaning set forth in the preamble to this Agreement.
“Excursion”
means
an occurrence, either during production or after customer delivery that is
outside normal historical behavior as established by both Parties in writing
in
the applicable Specifications which may impact performance, Quality and
Reliability, or customer delivery commitments for Probed Wafers, NAND Flash
Memory Product or Known Good Die.
“Facilities”
shall
mean all of the Joint Venture Company’s facilities at which it may perform
manufacturing, assembly or test services, including subcontractors.
“Fiscal
Quarter”
means
any of the four financial accounting quarters within the Joint Venture Company’s
Fiscal Year.
“Fiscal
Month”
means
any of the twelve financial accounting months within the Joint Venture Company’s
Fiscal Year.
“Fiscal
Year”
means
the fiscal year of the Joint Venture Company for financial accounting
purposes.
“Flash
Memory Integrated Circuit”
shall
have the meaning set forth in the IMFS Agreement.
“Force
Majeure Event”
shall
have the meaning set forth in Section
11.1.
“GAAP”
means
United States generally accepted accounting principles as in effect from
time to
time.
“Governmental
Entity”
means
any governmental authority or entity, including any agency, board, bureau,
commission, court, department, subdivision or instrumentality thereof, or
any
arbitrator or arbitration panel.
“Hazardous
Materials”
means
dangerous goods, chemicals, contaminants, substances, pollutants or any other
materials that are defined as hazardous by relevant local, state, national,
or
international law, regulations and standards.
“IMFS
Agreement”
means
the Limited Liability Partnership Agreement of the Joint Venture Company
by and
between Intel Singapore and Micron Singapore dated as of the Effective
Date.
“IMFT”
means
IM Flash Technologies, LLC, a Delaware limited liability company.
“Indemnified
Party”
shall
mean any of the following to the extent entitled to seek indemnification
under
this Agreement: Micron Singapore, the Joint Venture Company, and their
respective Affiliates, officers, directors, employees, agents, assigns and
successors.
“Indemnified
Losses” shall
mean all direct, out-of-pocket liabilities, damages, losses, costs and expenses
of any nature incurred by an Indemnified Party, including reasonable attorneys’
fees and consultants’ fees, and all damages, fines, penalties and judgments
awarded or
Exhibit
A
- 2
entered
against an Indemnified Party, but specifically excluding any special,
consequential or other types of indirect damages.
“Indemnifying
Party”
shall
mean the Party owing a duty of indemnification to another Party with respect
to
a particular Third Party Claim.
“Initial
Business Plan”
shall
have the meaning set forth in the IMFS Agreement.
“Intel”
means
Intel Corporation, a Delaware corporation.
“Intel
Singapore”
means
Intel Technology Asia Pte
Ltd,
a
Singapore private limited company.
“Joint
Development Program Agreement”
shall
mean the Joint Development Program Agreement by and between Micron and Intel
dated January 6, 2006.
“Joint
Venture Company”
shall
have the meaning set forth in the preamble to this Agreement.
“Joint
Venture Documents”
shall
have the meaning set forth in the IMFS Agreement.
“Known
Good Die”
means
a
raw wafer that has been processed to the point of containing functional and/or
operational NAND Flash Memory Integrated Circuits that has undergone Probe
Testing (a.k.a. “Sort” procedure), meeting predefined performance and quality
criteria and singulated to individual semiconductor die. Die will have been
fully tested but will not been assembled into final packaging or undergone
final
product testing.
“Liquidation
Date”
shall
have the meaning set forth in the IMFS Agreement.
“Losses”
shall
mean, collectively, any and all insurable liabilities, damages, losses, costs
and expenses (including reasonable attorneys’ and consultants’ fees and
expenses).
“Manufacturing
Committee”
shall
have the meaning set forth in the Omnibus Agreement.
“Members”
means
Micron Singapore and Intel Singapore.
“Micron”
shall
mean Micron Technology, Inc., a Delaware Company.
“Micron
Singapore”
shall
have the meaning set forth in the preamble to this Agreement.
“Minority
Closing” shall
have the meaning set forth in the IMFS Agreement.
“Modified
GAAP”
shall
have the meaning set forth in the IMFS Agreement.
“NAND
Flash Memory Integrated Circuit”
means
a
Flash Memory Integrated Circuit, in the memory cells included in the Flash
Memory Integrated Circuit are arranged in groups of
Exhibit
A
- 3
serially
connected memory cells (each such group of serially connected memory cells
called a “string”) in which the drain of each memory cell of a string (other
than the first memory cell in the string) is connected in series to the source
of another memory cell in such string, the gate of each memory cell in such
string is directly accessible, and the drain of the uppermost bit of such
string
is coupled to the bitline of the memory array.
“NAND
Flash Memory Product”
shall
have the meaning set forth in the IMFS Agreement.
“NAND
Flash Memory Wafer”
means a
raw wafer that has been processed to the point of containing NAND Flash Memory
Integrated Circuits organized in multiple semiconductor die and that has
undergone Probe Testing, but before singulation of said die into individual
semiconductor die.
“Omnibus
Agreement”
shall
mean the Omnibus Agreement by and between Intel and Micron dated as of the
Effective Date.
“Omnibus
IP Agreement”
shall
mean the Omnibus IP Agreement by and among Micron,
Micron Singapore, Intel, Intel Singapore, the Joint Venture Company and
IMFT
dated as
of the Effective Date.
“Operating
Plan”
means
the Manufacturing Plan, Assembly Plan and Testing Plan developed pursuant
to the
Definitions in the IMFS Agreement.
“Optional
Purchase Agreement”
shall
mean the Optional Purchase Agreement by and between Micron and Intel dated
January 6, 2006, as amended.
“Party”
and
“Parties” shall
have the meaning set forth in the Recitals to this Agreement.
“Performance
Criteria”
means
[***].
“Person”
shall
have the meaning set forth in the IMFS Agreement.
“Planning
Forecast”
shall
have the meaning set forth in Section
3.1(b)
hereof.
“Price”
or
“Pricing”
means
the calculation set forth on Schedule
4.8
hereof.
“Prime
Wafer”
means
the raw silicon wafers required, on a product-by-product basis, for the
manufacturer.
“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 NAND Flash Memory 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.
Exhibit
A
- 4
“Probed
Wafer”
means
a
Prime Wafer that has been processed to the point of containing NAND Flash
Memory
Integrated Circuits organized in multiple semiconductor die and that has
undergone Probe Testing, but before singulation of said die into individual
semiconductor dice.
“Products”
means
a
Probed Wafer, Known Good Die, or NAND Flash Memory Product, or such other
products that are manufactured by the Joint Venture Company under Section
2.2
hereof.
“Proposed
Loading Plan”
shall
have the meaning set forth in Section
3.1(c)
hereof.
“Purchase
Order”
shall
have the meaning set forth in Section
4.3
hereof.
“Quality
and Reliability”
or
“Q&R” means
building and sustaining relationships which assess, anticipate, and fulfill
the
quality and reliability standards as set forth in the Specification or Operating
Plan for Products.
“Receiving
Party”
shall
have the meaning set forth in Section
7.1
hereof.
“Recoverable
Taxes”
shall
have the meaning set forth in Section
4.7
hereof.
“Secondary
Silicon”
shall
mean: i) a Prime Wafer that has been processed to the point of containing
NAND
Flash Memory Integrated Circuits organized in multiple semiconductor die
and
that has undergone Probe Testing would otherwise constitute a Probed Wafer
but
for failure to achieve qualification; or (ii) singulated and/or packaged
die
that would otherwise constitute Assembly Outs or Test Outs but for failure
to
achieve qualification; and otherwise conform to the applicable Secondary
Silicon
Specification.
“Semiconductor
Manufacturing Technology”
shall
have the meaning set forth in the Omnibus IP Agreement.
“Sharing
Interest”
shall
have the meaning set forth in the IMFS Agreement.
“Specifications”
means
those specifications used to describe, characterize, and define the quality
and
performance of NAND Flash Memory Products and Known Good Die, including any
interim performance specifications at Probe Testing or other testing, as
such
specifications may be determined from time to time by the Joint Venture
Company.
“Subsidiary” shall
have the meaning set forth in the IMFS Agreement.
“Technology
License Agreement”
shall
mean the Technology License Agreement by and among Micron, Intel and IMFT
dated
January 6, 2006, as amended.
“Term”
shall
have the meaning set forth in Section
10.1
hereof.
“Test
Outs” shall
mean a Product Candidate for which Testing Services have been completed and
meets all of the Testing Specification applicable at such time and is not
Secondary Silicon or Rejects.
Exhibit
A
- 5
“Third
Party Claim”
shall
mean any claim, demand, action, suit or proceeding, and any actual or threatened
lawsuit, complaint, cross-complaint or counter-complaint, arbitration or
other
legal or arbitral proceeding of any nature, brought in any court, tribunal
or
judicial forum anywhere in the world, regardless of the manner in which such
proceeding is captioned or styled, by any Person other than Micron Singapore,
the Joint Venture Company and Affiliates of the foregoing, against an
Indemnified Party, in each case alleging entitlement to any Indemnified Losses
pursuant to any indemnification obligation under this Agreement.
“Triggering
Event” shall
have the meaning set forth in the IMFS Agreement.
“Under-loading”
shall
have the meaning set forth in Section
4.1.
“Wafer
Start”
shall
mean the initiation of manufacturing services with respect to a Prime
Wafer.
“Warranty
Claim Period”
shall
have the meaning set forth in Section
6.2
hereof.
“Wholly-Owned
Subsidiary”
shall
have the meaning set forth in the IMFS Agreement.
“WIP”
means
work in process. This includes all wafers and Product in wafer fabrication,
sort, assembly, and/or final test, including prime and secondary wafers,
and all
completed Product units not yet delivered to Micron Singapore.
“Yield”
means
anticipated output of Product from WIP at a particular point in time, including
line yield, die yield, assembly yield and final testing yield.
Exhibit
A
- 6
SCHEDULE
4.8
PRICE
