SERVICES AGREEMENT
EXHIBIT 10.59
NTC/MEIYA CONFIDENTIAL
This
Services Agreement (“Agreement”) is made and entered into as of this 6th day
of June, 2008 (“Effective Date”), by and between Nanya Technology
Corporation (Nanya
Technology Corporation [Translation from Chinese]) (“NTC”), a company
incorporated under the laws of the Republic of China (“ROC” or “Taiwan”), and
MeiYa Technology Corporation (MeiYa Technology Corporation
[Translation from Chinese]), a company incorporated under the laws of the
ROC (“JVC”). NTC and JVC are sometimes collectively referred to as
the “Parties” and individually as a “Party”.
RECITALS
A. NTC
and Micron Technology, Inc, a Delaware corporation (“Micron”) are parties to
that certain Master Agreement with an effective date of April [21], 2008
(“Master Agreement”) which contemplates the entry into this Agreement as of the
Closing Date (as that term is defined in the Master Agreement); and
B. JVC
may request that NTC provide Services (as defined below) to JVC, and NTC will
provide such Services to JVC subject to the terms and conditions set forth
hereinafter.
NOW,
THEREFORE, in consideration of the foregoing, the mutual agreements and
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which each Party hereby acknowledges, the Parties
agree as follows:
ARTICLE
I
DEFINITIONS;
INTERPRETATION
Section
1.1 Definitions. The following
capitalized terms will have the following meanings:
“Confidentiality Agreement”
means that certain mutual confidentiality agreement among Micron, Micron
Semiconductor B.V., a company incorporated under the laws of the Netherlands
(“MNL”) and NTC referred to on Schedule 2.1 of the Master Agreement Disclosure
Letter, as joined by JVC as of the Closing Date.
“GAAP” means generally accepted
accounting principles, consistently applied for all periods at
issue.
“GUI” means government
unified invoice.
“Service(s)” is defined in
Section 3.
“Service Fee” is defined in
Section
5.1.
NTC/MEIYA CONFIDENTIAL
“VAT” will mean value added
tax as imposed upon any payments hereunder pursuant to the laws of Taiwan,
Republic of China.
Section
1.2 Interpretation. Unless
the context requires otherwise: (i) all references to Sections or Exhibits
are to Sections or Exhibits of or to this Agreement; (ii) each accounting
term not otherwise defined in this Agreement has the meaning commonly applied to
it in accordance with GAAP; (iii) words in the singular include the plural
and visa versa; (iv) the term “including” means “including without
limitation”; and (v) the terms “herein,” “hereof,” “hereunder” and words of
similar import will mean references to this Agreement as a whole and not to any
individual section or portion hereof. 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, unless specifically identified otherwise. 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
II
SERVICES
Section
2.1 Services. NTC
agrees to provide, and JVC agrees to purchase the services set forth on Exhibit
I and such other additional services that JVC may reasonably request from NTC
from time to time at the level and scope and for the duration that JVC deems
necessary to support its operations, and any change, modification or enhancement
thereto that NTC agrees to provide (“Services”). For additional
services beyond those set forth in Exhibit I, JVC will submit requests for
Services in writing to NTC (“Service Requests”), and the Parties will negotiate
each Service Request in good faith. If the Parties agree to such
Service Request, then NTC will perform the Service(s) set forth in such Service
Request in accordance with the terms and conditions of such Service Request and
this Agreement.
Section
2.2 Nonexclusivity. If
NTC is (i) unable or unwilling to provide any Service(s) under mutually
agreeable terms, or (ii) the Parties otherwise fail to agree to a Service
Request within fourteen (14) days of JVC’s presentation of such Service Request
to NTC, then JVC may perform or retain any third party(ies) to perform the
Service(s) that are the subject of such Service Request. If JVC
performs or retains any third party(ies) to perform any Service(s), then NTC
will cooperate with JVC and such third party(ies) with respect to the provision
of such Service(s) (including any transition thereof as set forth in Section 3.3) by or to
JVC.
Section
2.3 Duration of
Services. NTC will provide the Services to JVC during the Term
subject to Section
3.2.
ARTICLE
III
TERM
AND TERMINATION
Section
3.1 Term. The term of this
Agreement will commence on the Effective Date
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and will
remain in effect until terminated as provided herein (“Term”).
Section
3.2 Termination. This
Agreement may be terminated by mutual agreement of the Parties or by JVC upon
the dissolution of JVC. In the event an individual Service or Services are not
satisfactory to JVC, JVC may by written notice to NTC raise an improvement
request (“Improvement Request”). NTC will make commercially reasonable efforts
to satisfy the Improvement Request within thirty (30) calendar days of receipt
(the “Improvement Period”). At the end of the Improvement Period, if
JVC is not satisfied with the results of such Improvement Request in JVC’s sole
discretion, JVC may terminate such individual Service or Services upon thirty
(30) calendar days prior written notice to NTC. Notwithstanding the foregoing,
in the event of any termination with respect to one or more individual Services,
but less than all Services, this Agreement will continue in full force and
effect with respect to any Services not terminated hereby and will only
terminate upon termination of all individual Services hereunder.
Section
3.3 Consequences. In the
event of termination, NTC agrees to provide reasonable cooperation to JVC to
ensure a smooth transition to a third party service provider for such period of
time as JVC reasonably requires. The parties shall cooperate in
arranging for an orderly, effective transition of operational control of the
functions that are the subject of the Services from NTC to JVC or its designated
service provider. After such transition period, either party that has
work products, documents and other materials belonging to the other party (the
"Receiving Party") shall return to the delivering party ("Delivering Party") any
and all such materials (and all copies and extracts thereof) provided to or
obtained by Receiving Party from Delivering Party pursuant to or in connection
with this Agreement, subject to any record retention requirements of the
JVC.
ARTICLE
IV
COMPENSATION
Section
4.1 Fees for Services.
JVC will pay the fees (inclusive of VAT) to NTC for Services (“Service Fee”) in
accordance with the guidelines set forth on Exhibit I and as agreed upon by
the Parties for each of the Services as amended from time to time. Such Service
Fee will be provided at the actual cost of the Services billed to NTC. All
Service Fees will be payable in New Taiwan Dollars, and JVC will make such
payments in strict compliance with all applicable laws and regulations of the
government of Taiwan, Republic of China.
Section
4.2 Pricing
Structure. NTC represents, warrants and covenants that at all
times during the Term, the Service Fees charged to JVC are the same as the
prices then offered or provided by Formosa Plastics Group, (“FPG”) to any other
entity for services substantially similar in both quantity and quality to and at
comparable level with the Services being provided to JVC under this
Agreement.
Section
4.3 Payment Terms. NTC
will xxxx JVC monthly for all Service Fees. Such bills will be accompanied by
GUI and reasonable documentation or other reasonable explanation supporting such
Service Fees. The Service Fees will be due to NTC within thirty (30) days after
receipt of a correct and approved invoice therefor. Late payments beyond sixty
(60) calendar days of the date of the invoice will be subject to interest of six
percent (6%) per annum of the unpaid invoiced amount.
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Section
4.4 Records and Audit.
NTC will maintain records relating to this Agreement (including with respect to
the provision of the Services, the records relating to the calculation of the
Service Fee and verification of the FPG pricing formula as well as payment and
collection of the Service Fee) in accordance with NTC’s normal accounting
procedures, but in no case for a period of less than one (1)
year. Upon reasonable notice to NTC, JVC may designate a third party
auditor at JVC’s sole expense to audit such records during NTC’s regular
business hours in order to confirm NTC’s compliance with the terms
hereof. Without limiting the foregoing, in the event that any such
audit reveals any overpayment by JVC of the Service Fee, then NTC will
immediately: (i) refund the amount of such overpayment to JVC; and (ii)
reimburse JVC for the costs that it has incurred in association with such
audit.
ARTICLE
V
GENERAL
OBLIGATIONS; STANDARD OF CARE
Section
5.1 Performance of NTC.
NTC will exercise the same level of care and diligence in performing Services
hereunder as it customarily exercises in performing such services for its own
purposes, but in no event will it be less than commercially reasonable care in
rendering the Services hereunder. NTC will maintain sufficient resources to
perform its obligations to provide Services hereunder. NTC will use reasonable
efforts to provide Services to JVC in accordance with the policies, procedures
and practices in effect before the Effective Date.
Section
5.2 Performance of JVC.
JVC will use reasonable efforts, in connection with receiving Services, to
follow the policies, procedures and practices in effect before the Effective
Date, including providing information and documentation sufficient for NTC to
perform the Services and making available, as reasonably requested by NTC,
reasonable approvals and acceptances in order for NTC to perform its obligations
under this Agreement in a timely manner.
Section
5.3 Responsibility for Errors;
Delays. Except for gross negligence or willful misconduct in the
performance of the Services, NTC’s sole responsibility to JVC for errors or
omissions in Services or failure of performance or defects in any goods, spare
parts, hardware, and software will be to immediately correct any defective or
non-conforming Services, goods, spare parts, hardware or software by repair or
replacement at no cost to JVC, provided that JVC will promptly advise NTC of any
such error, omissions, or defects.
Section
5.4 Good Faith Cooperation;
Consents. The Parties will use good faith efforts to cooperate with each
other in all matters relating to the provision and receipt of Services. Such
cooperation will include exchanging information, providing electronic access to
systems used in connection with the Services, and performing
adjustments. NTC will be responsible for identifying any third party
consents, licenses, sublicenses or approvals necessary to permit NTC to perform
its obligations hereunder, and hereby represents and warrants that it will have
in full effect with all applicable third parties at all times all such consents,
licenses, sublicenses or approvals. The additional costs of obtaining
such third party consents, licenses, sublicenses or approvals for the purpose of
rendering Services to JVC will be borne by JVC. The Parties will maintain
documentation supporting the information contained in Exhibit I and
cooperate with each other in making such information available as
needed.
Section
5.5 Proprietary Items
License. In
the course of performing Services under this Agreement, NTC may use products,
materials, data, ideas, tools, processes, strategies, marketing
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plans,
techniques, know-how, trade secrets, methodologies and other items and
information that are proprietary to NTC or are licensed to NTC by third parties
(collectively, “Proprietary Items”). Except for any software that is
licensed to NTC by a third party and provided by NTC to JVC in accordance with
Section 5.4, if
any, NTC hereby grants to JVC for the duration of the Term a royalty-free,
worldwide, non-sublicenseable, non-transferable, non-exclusive, limited license
to use Proprietary Items for its internal use only that are provided to JVC in
connection with the Services provided hereunder pursuant to this
Agreement.
Section
5.6 NTC Software. NTC
hereby grants to JVC for the duration of the Term, a royalty free, nonexclusive,
limited license to use the NTC software, if any, that is provided to JVC in
connection with the Services provided hereunder for its internal use only and in
strict conformity with all applicable restrictions on the use.
ARTICLE
VI
CONFIDENTIALITY
All
information provided, disclosed or obtained in connection with this Agreement or
the performance of any of the Parties’ activities under this Agreement will be
subject to all applicable provisions of the Confidentiality
Agreement. Furthermore, the terms and conditions of this Agreement
will be considered “Confidential Information” under the Confidentiality
Agreement for which each Party is considered a “Receiving Party” under such
agreement. To the extent there is a conflict between this Agreement
and the Confidentiality Agreement, the terms of this Agreement will
control. If the Confidentiality Agreement is terminated or expires
and is not replaced, then the Confidentiality Agreement will continue to govern
the confidentiality and non-disclosure obligations between the Parties with
respect to the information and materials provided or disclosed in connection
with this Agreement for the duration of the Term notwithstanding such
termination or expiration.
ARTICLE
VII
INDEMNIFICATION;
LIMITATION OF LIABILITY
Section
7.1 General
Indemnity. NTC will indemnify, defend and hold harmless the
JVC from and against any and all losses based on or attributable to any third
party claim or threatened claim arising under this Agreement and as a result of
NTC’s negligence, gross negligence or that of any of its respective officers,
directors, employees, agents or subcontractors.
Section
7.2 Intellectual Property
Infringement Indemnification. NTC will defend,
indemnify and hold harmless JVC and its directors, officers, employees and
permitted assignees from and against any third party claim or demand that the
provision of Services hereunder infringes or misappropriates any patent,
trademark, copyright, mask work, trade secret or other intellectual property
right of a third party now or hereafter existing. If any such claim or demand is
asserted against JVC, NTC will defend and hold JVC harmless from all damages,
costs or losses arising from or related to the defense of such legal
action.
Section
7.3 Limitation of
Liability. Notwithstanding the terms set forth in Section 7.1, 7.2 and 7.4, except in the
event of breach of Article VI, NTC’s
total liability under this Agreement shall be limited to the total annual
Service Fee received from JVC in the preceding
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calendar
year or in the event that a claim arises prior to the completion of the first
full calendar year, the projected yearly Service Fee based on Service Fees
already billed to JVC.
Section
7.4 Consequential
Damages. Except in the event of willful misconduct or gross
negligence or the breach of Article VI, neither
Party will be liable to the other Party for any lost profits, loss of data, loss
of use, business interruption or other special, incidental, indirect, punitive
or consequential damages, however caused, under any theory of liability, arising
from or relating to this Agreement.
ARTICLE
VIII
FORCE
MAJEURE
Each
Party will be excused for any failure or delay in performing any of its
obligations under this Agreement, other than the obligations of JVC to make
certain payments to NTC pursuant to Section 4.1 for
Services rendered, if such failure or delay is caused by Force Majeure. “Force
Majeure” means any act of God or the public enemy, any accident, explosion,
fire, storm, earthquake, flood, or any other circumstance or event beyond the
reasonable control of the Party relying upon such circumstance or
event.
ARTICLE
IX
MISCELLANEOUS
Section
9.1 Applicable
Law. This Agreement will be construed in accordance with and
governed by the laws of Taiwan, R.O.C. and will be interpreted thereunder,
without giving effect to its conflict of laws principles.
Section
9.2 Dispute
Resolution. All disputes shall be resolved as
follows: the Parties shall first submit the matter to the president
of NTC and Executive Vice President of JVC by providing notice of the dispute to
the Parties. The president of NTC and Executive Vice President of JVC
shall then make a good faith effort to resolve the dispute. If they
are unable to resolve the dispute within thirty (30) days of receiving notice of
the dispute (during which thirty-day period, they shall seek in good faith to
hold at least two (2) meetings at which they shall make a good faith effort to
resolve the dispute), then the dispute shall be submitted to the chairman of the
board of directors of NTC and the lead director of JVC appointed by Micron. If the chairman of the
board of directors of NTC and the lead director of JVC appointed by Micron are
unable to resolve the dispute within thirty (30) days of the dispute having been
submitted to them (during which thirty-day period, the directors shall seek in
good faith to hold at least two (2) meetings at which they shall make a good
faith effort to resolve the dispute), then a civil action with respect to the
dispute may be commenced.
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 the Taipei District Court, located in Taipei, Taiwan, and each of the Parties 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.
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Section
9.3 Entire Agreement.
This Agreement, together with Exhibit I hereto, constitutes the entire
agreement between the Parties with respect to the subject matter hereof and will
supersede all prior written and oral and all contemporaneous oral agreements and
understandings with respect to the subject matter hereof.
Section
9.4 Descriptive Headings.
The descriptive headings herein are inserted for convenience of reference only
and are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
Section
9.5 Language. This
Agreement will be prepared in the English language, and the English language
version will be official.
Section
9.6 Notices. All notices
required under this Agreement, and all communications made by agreement of the
Parties, will be made in writing, and will be delivered either personally, by
facsimile, or by mail. The date of actual receipt by the receiving Party will be
deemed the date of notice under this Agreement. The addresses of each Party for
purposes of notice under this Agreement will be as follows:
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NTC:
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Hwa-Ya
Technology Park 669
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Fuhsing
3 RD. Kueishan
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Taoyuan,
Taiwan, ROC
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Attn: Legal department
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Facsimile:
886-3-396-2226
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JVC:
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MeiYa
Technology Corporation
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5F,
N. 201-36
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Dunhua
N. Road, Songshan District
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Taipei
City, Taiwan, ROC
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Fax:
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With
a mandatory copy to:
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Micron:
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Micron
Technology, Inc.
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MS1-507
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0000
Xxxxx Xxxxxxx Xxx
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Xxxxx,
XX 00000-0000
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Attention: General
Counsel
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Facsimile: 000-000-0000
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Section
9.7 Transfer. No right or
obligation under this Agreement will be transferable or assigned to any third
party without the express agreement in writing of the other Party.
Section
9.8 Severability. If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement will nevertheless remain in full force and effect
so long as the
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economic
or legal substance of the transactions contemplated is not affected in any
manner materially adverse to any Party. Upon such determination that any term or
other provision is invalid, illegal or incapable of being enforced, the Parties
will negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible.
Section
9.9 Modification of the
Agreement. Except as provided herein, no modification of this
Agreement will be valid without a writing setting forth such modification signed
by both Parties.
Section
9.10 Compliance with Laws and
Regulations. Each of the Parties will comply with, and will
use reasonable efforts to require that its respective subcontractors comply
with, all applicable laws and regulations relating to the Services.
Section
9.11 Specific
Performance. The Parties agree that irreparable damage
will result if NTC ceases to perform the Services during the Term in breach of
its obligations hereunder, and the Parties agree that any damages available at
law for such a breach of this Agreement would not be an adequate
remedy. Therefore, NTC’s obligation to continue performing Services
hereunder will be enforceable in a court, or other tribunal with jurisdiction,
by a decree of specific performance, and appropriate preliminary and permanent
injunctive relief may be applied for and granted in connection
therewith. Such remedy will be cumulative and not exclusive and will
be in addition to any other remedies that a Party may have under this
Agreement.
[SIGNATURE
PAGE FOLLOWS]
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IN WITNESS WHEREOF, this
Agreement has been executed and delivered as of the date first written
above.
NANYA
TECHNOLOGY CORP.
| NANYA TECHNOLOGY CORPORATION | ||
| By: |
/s/ Xxx Xxxx
|
|
| Name: Xxx Xxxx | ||
| Title: President | ||
| MEIYA TECHNOLOGY CORPORATION | ||
| By: |
/s/ Pei Ing Xxx
|
|
| Name: Pei Ing Xxx | ||
| Title: Chairman | ||
THIS
IS THE SIGNATURE PAGE FOR THE SERVICES AGREEMENT
ENTERED
INTO BY AND BETWEEN NANYA TECHNOLOGY CORPORATION AND MEIYA TECHNOLOGY
CORPORATION
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Exhibit I
SERVICES
Services
(and guidelines for charging such Services in accordance with the rules and
regulations of NTC) to be provided by NTC to JVC are as follows:
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1.
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Corporate
Systems
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1.1
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Services
for Corporate Systems:
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-
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Human
Resource Management
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-
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Financial
Management
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-
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Engineering
and Construction
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-
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Material
and Inventory
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-
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Information
Technology
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-
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Management
Information System
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-
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Environmental
Protection
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1.2
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Charging
Guidelines for Corporate Systems
Services:
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1)
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For
Enterprise Resource Planning (“ERP”) system and public relations
consultancy services, service fee is a function of JVC’s capital, revenue,
net income, head count and terms as offered to NTC and other members of
NTC. In addition, Services for ERP system and software maintenance are
charged based on the man hours of services. Services for sharing the
hardware (mainframe), on the other hand, are charged based on the hours of
usage of CPU and the number of
terminals.
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2)
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For
other general administrative services, such as (a) financial, stock
brokerage and cashier services, (b) purchasing activity and price
negotiation, (c) export affairs, customs clearance and transportation, and
(d) sub-contracting engineering service, the service is charged based on
the quantity of service activities for the respective services. For the
architectural design and construction, the service is charged based on the
amount or percentage of completed
construction.
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2.
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Services
for Fab Operation System (if applicable or upon request of
JVC)
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-
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Facility
supply: Costs include operational costs (such as material, consumable,
personnel salary, repair and maintenance and other administrative
expenses). The service is charged based on the percentage of
consumption.
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-
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Materials
supply: Costs are based on separate material account. The service is
charged based on material cost and reasonable handling
cost.
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-
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Maintenance
tool: Costs include materials, maintenance, compensation for engineers and
technicians and the cost of depreciation. The service is charged on an
hourly rate basis.
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-
|
Laboratory
tool: Costs include materials, maintenance, compensation for engineers and
technicians and the cost of depreciation. The service is charged on an
hourly rate basis.
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-
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Information
technology system and related services: Costs include license fees,
maintenance fees, compensation for IT consultants and technicians. The
service is charged based on the amount and percentage of data
processing.
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3.
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Services
for Fab Support System (if applicable or upon request of
JVC)
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-
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Operating
system development: Costs include all costs and expenses regarding
information technology, facility and logistics required for the
development department. The service is charged based on the percentage of
the cost of the project.
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-
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Fab
expansion: Costs include compensation for the employees, NTC’s expenses
and other general administrative expenses. The service is charged based on
the percentage of engineering and construction
payment.
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-
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Site
general affairs: Costs include landscaping, planting, cleaning and site
maintenance. The service is charged based on the percentage of floor
area.
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-
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Site
security: Costs include compensation for relevant employees, NTC’s
expenses and other general administrative expenses. The service is charged
based on the percentage of number of
employees.
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