MASTER AGREEMENT
EXHIBIT
10.71
[***]
DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
NTC/MICRON
CONFIDENTIAL
This
MASTER AGREEMENT, is made and entered into as of this 26th day of November,
2008, among Micron Technology, Inc., a Delaware corporation (“Micron”), Micron Semiconductor
B.V., a private limited liability company organized under the laws of the
Netherlands (“MNL”),
Nanya Technology Corporation Nanya Technology Corporation
[Translation from Chinese] (“NTC”), a company incorporated
under the laws of the Republic of China (“ROC” or “Taiwan”), MeiYa Technology
Corporation MeiYa
Technology Corporation [Translation from Chinese], a company incorporated
under the laws of the ROC (“MeiYa” and, collectively with
Micron, MNL and NTC, the “Old
JV Parties”), and Inotera Memories, Inc. Inotera Memories Inc.
[Translation from Chinese], a company incorporated under the
laws of the ROC (“IMI”
and, collectively with Micron, MNL and NTC, the “New JV Parties”).
RECITALS
A. The Old
JV Parties entered into certain agreements with each other relating to the
ownership, governance and operation of MeiYa and regarding certain business
relationships among the Old JV Parties (such agreements, the “MeiYa JV
Documents”).
B. In
accordance with that certain Share Purchase Agreement, dated October 11,
2008 (the “Qimonda / MNL Share
Purchase Agreement”), among Micron, MNL, Qimonda AG, a corporation
organized under the laws of Germany (“Qimonda”), and Qimonda Holding
B.V., a private limited company organized under the laws of the Netherlands
(“Qimonda B.V.”), MNL is
acquiring from Qimonda and Qimonda B.V. shares in IMI.
C. After the
2nd
Closing (as defined hereinafter), MNL, NTC, MeiYa and IMI intend for IMI to
conduct the MeiYa Rollup (as defined hereinafter).
D. Upon the
2nd
Closing, the MeiYa Rollup or the MeiYa Dissolution (as defined hereinafter),
(1) certain of the MeiYa JV Documents will remain in effect and intact
without modification, (2) certain of the MeiYa JV Documents will be
amended, (3) certain of the MeiYa JV Documents will be terminated,
(4) the New JV Parties will enter into certain agreements relating to the
ownership, governance and operations of IMI and regarding certain relationships
among the New JV Parties (such agreements, the “IMI JV Documents”) and (5)
MeiYa and IMI will enter into certain agreements related to the MeiYa
Rollup.
AGREEMENT
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto intending to be legally bound
do hereby agree as follows:
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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
below:
“2nd Closing” shall have the
meaning set forth in the Qimonda / MNL Share Purchase Agreement.
“Agreement” means this Master
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.
“Governmental Entity” means any
governmental authority or entity, including any agency, board, bureau,
commission, court, municipality, department, subdivision or instrumentality
thereof, or any arbitrator or arbitration panel.
“IMI” shall have the meaning
set forth in the preamble to this Agreement.
“IMI JV Documents” shall have
the meaning set forth in Recital D to this Agreement.
[***]
“JDP Agreement” means that
certain Joint Development Program Agreement between NTC and Micron, dated
April 21, 2008.
“Lease and License Agreement”
means that certain Lease and License Agreement between NTC and MeiYa, dated
May 13, 2008.
“Manufacturing Fab Cooperation
Agreement” means that certain Manufacturing Fab Cooperation Agreement
between Micron and NTC, dated June 6, 2008.
“MeiYa Dissolution” means
(a) if the MeiYa Rollup is conducted as a result of clauses (a), (c) or (d)
of the definition of “MeiYa Rollup,” the MeiYa Rollup, or (b) if the MeiYa
Rollup is conducted as a result of clause (b) of the definition of “MeiYa
Rollup,” the subsequent liquidation, dissolution or winding up the affairs of
MeiYa.
“MeiYa Joint Venture Agreement”
shall have the meaning set forth in Section
4.4(e).
“MeiYa JV Documents” shall have
the meaning set forth in Recital A to this Agreement.
[***]
“MeiYa Rollup” means the first
to occur of the following events, whether through a single transaction or series
of related transactions: (a) any consolidation or merger of
MeiYa with or into another Person; (b) the sale of all or substantially all
of MeiYa’s non-cash assets to another Person; (c) the sale of all or
substantially all of MeiYa's voting equity to any other Persons; and
(d) the voluntary or involuntary liquidation, dissolution or winding up of
the affairs of MeiYa.
“MeiYa TTA 68-50” shall have
the meaning set forth in Section 4.3(a)(i) of this Agreement.
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[***]
“Micron” shall have the meaning
set forth in the preamble to this Agreement.
“MNL” shall have the meaning
set forth in the preamble to this Agreement.
“Mutual Confidentiality
Agreement” means that certain First Amended and Restated Mutual
Confidentiality Agreement effective as of April 21, 2008 among Micron, MNL
and NTC, as joined by MeiYa pursuant to the Joinder of Joint Venture Company by
MeiYa, dated May 13, 2008.
“Non-Suit Agreement” means that
certain Non-Suit Agreement between Micron and NTC, dated April 21,
2008.
“Person” means any natural
person, corporation, joint stock company, limited liability company,
association, partnership, firm, joint venture, organization, business, trust,
estate or any other entity or organization of any kind or
character.
“Restricted Activities Side
Letter” means that certain Restricted Activities Side Letter between
Micron and NTC, dated April 21, 2008.
“Qimonda” shall have the
meaning set forth in Recital B to this Agreement.
“Qimonda B.V.” shall have the
meaning set forth in Recital B to this Agreement.
“Qimonda / MNL Share Purchase
Agreement” shall have the meaning set forth in Recital B to this
Agreement.
“ROC” shall have the meaning
set forth in the preamble to this Agreement.
“Taiwan” shall have the meaning
set forth in the preamble to this Agreement.
“Technology Transfer and License
Agreement” means that certain Technology Transfer and License Agreement
between Micron and NTC, dated April 21, 2008.
“TTA 68-50” shall have the
meaning set forth in Section 5.7 of this Agreement.
1.2 Certain Interpretive
Matters.
(a) Unless
the context requires otherwise, (i) all references to Sections, Articles or
Exhibits are to Sections, Articles or Exhibits of or to this Agreement,
(ii) words in the singular include the plural and vice versa,
(iii) the term “including” means “including
without limitation,” and (iv) 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” mean calendar
days.
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CONFIDENTIAL
(b) No
provision of this Agreement will be interpreted in favor of, or against, any
party hereto by reason of the extent to which (i) such party or its counsel
participated in the drafting thereof, or (ii) such provision is
inconsistent with any prior draft of this Agreement or such
provision.
ARTICLE
2
MEIYA JV DOCUMENTS REMAINING
IN PLACE WITHOUT MODIFICATION
2.1 Technology Transfer and
License Agreement for 68-50 nm Process Nodes. The Technology
Transfer and License Agreement for 68-50 nm Process Nodes between Micron and
NTC, dated April 21, 2008, will remain in effect and intact without
modification following the 2nd
Closing, the MeiYa Rollup and the MeiYa Dissolution.
2.2 Patent
Assignment. The Patent Assignment Agreement between Micron and
NTC, dated June 6, 2008, will remain in effect and intact without
modification following the 2nd
Closing, the MeiYa Rollup and the MeiYa Dissolution.
2.3 Micron Guaranty
Agreement. The Micron Guaranty Agreement between Micron and
NTC, dated April 21, 2008, will remain in effect and intact with respect to
any provisions of the MeiYa Joint Venture Agreement that then remain in
effect.
ARTICLE
3
MEIYA JV DOCUMENTS TO BE
AMENDED AS OF THE 2ND CLOSING
3.1 Mutual Confidentiality
Agreement. On the date of the 2nd
Closing, Micron, MNL, NTC, MeiYa and IMI will enter into a Second Amended and
Restated Mutual Confidentiality Agreement, substantially in the form attached
hereto as Exhibit A, to
amend the Mutual Confidentiality Agreement.
3.2 JDP
Agreement. On the date of the 2nd
Closing, Micron and NTC will enter into an Amended and Restated Joint
Development Program Agreement, substantially in the form attached hereto as
Exhibit B,
to amend the JDP Agreement.
3.3 Restricted Activities Side
Letter. On the date of the 2nd
Closing, Micron and NTC will enter into an Amended and Restated Restricted
Activities Side Letter, substantially in the form attached hereto as Exhibit C, to
amend the Restricted Activities Side Letter.
3.4 Non-Suit
Agreement. On the date of the 2nd
Closing, Micron and NTC will enter into an Amended and Restated Non-Suit
Agreement, substantially in the form attached hereto as Exhibit D, to
amend the Non-Suit Agreement.
3.5 Technology Transfer and
License Agreement. On the date of the 2nd
Closing, Micron and NTC will enter into an Amended and Restated Technology
Transfer and License Agreement, substantially in the form attached hereto as
Exhibit E,
to amend the Technology Transfer and License Agreement.
3.6 Manufacturing Fab
Cooperation Agreement. On the date of the 2nd
Closing, Micron and NTC will enter into an Amended and Restated Manufacturing
Fab Cooperation Agreement, substantially in the form attached hereto as Exhibit F, to
amend the Manufacturing Fab Cooperation Agreement.
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CONFIDENTIAL
ARTICLE
4
MEIYA JV DOCUMENTS TO BE
TERMINATED
4.1 MeiYa JV Documents
Terminated as of the 2nd
Closing.
(a) Corporate Opportunities Side
Letter. The Corporate Opportunities Side Letter between Micron
and NTC, dated April 21, 2008, is hereby terminated effective as of the
2nd
Closing; provided that
any provisions that, pursuant to such Corporate Opportunities Side Letter, are
expressly stated to survive termination shall so survive.
4.2 MeiYa JV Document Terminated
as of the MeiYa Rollup.
(a) Supply
Agreement. The Supply Agreement among Micron, NTC and MeiYa,
dated June 6, 2008, is hereby terminated effective as of the MeiYa Rollup,
including all provisions that, pursuant to such Supply Agreement, are expressly
stated to survive termination, except for Article 7 and Sections 10.3, 11.3 and
11.5 – 11.14 which shall survive such termination.
(b) Micron Assigned Employee
Agreement. The Micron Assigned Employee Agreement between
Micron and MeiYa, dated June 6, 2008, is hereby terminated effective as of
the MeiYa Rollup; provided that any provisions
that, pursuant to such Micron Assigned Employee Agreement, are expressly stated
to survive termination shall so survive.
(c) NTC Assigned Employee
Agreement. The NTC Assigned Employee Agreement between NTC and
MeiYa, dated June 6, 2008, is hereby terminated effective as of the MeiYa
Rollup; provided that
any provisions that, pursuant to such NTC Assigned Employee Agreement, are
expressly stated to survive termination shall so survive.
4.3 MeiYa JV Documents
Terminated as of the earlier of (x) the MeiYa Rollup and (y) the date that is
six (6) months following the date of the 2nd
Closing.
(a) Technology Transfer
Agreement for 68-50 nm Process Nodes.
(i) The
Technology Transfer Agreement for 68-50 nm Process Nodes between Micron and
MeiYa, dated May 13, 2008 (the “MeiYa TTA 68-50”), is hereby
terminated effective as of the earlier of (i) the MeiYa Rollup and (ii) the date
that is six (6) months following the date of the 2nd
Closing; provided that
any provisions that, pursuant to the MeiYa TTA 68-50, are expressly stated to
survive termination shall so survive; and provided, further, that
[***].
(ii) Effective
as of the 2nd
Closing, the [***].
(b) Technology Transfer
Agreement. The Technology Transfer Agreement by and among
Micron, NTC and MeiYa, dated May 13, 2008, is hereby terminated effective
as of the earlier of (i) the MeiYa Rollup and (ii) the date that is six (6)
months following the date of the 2nd
Closing; provided that
any provisions that, pursuant to such Technology Transfer Agreement, are
expressly stated to survive termination shall so survive.
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CONFIDENTIAL
4.4 MeiYa JV Documents
Terminated as of the MeiYa Dissolution.
(a) Master
Agreement. The Master Agreement between Micron and NTC, dated
April 21, 2008, is hereby terminated effective as of the MeiYa
Dissolution.
(b) Master Agreement Disclosure
Letter. The Master Agreement Disclosure Letter by Micron and
agreed to by NTC, dated April 21, 2008, is hereby terminated effective as
of the MeiYa Dissolution.
(c) Master Agreement Exhibits
Side Letter. The Master Agreement Exhibits Side Letter by
Micron and agreed to by NTC, dated April 21, 2008, is hereby terminated
effective as of the MeiYa Dissolution.
(d) Litigation Side
Letter. The Litigation Side Letter by Micron and agreed to by
NTC, dated April 21, 2008, is hereby terminated effective as of the MeiYa
Dissolution.
(e) Joint Venture
Agreement. The Joint Venture Agreement between MNL and NTC,
dated April 21, 2008, (the “MeiYa Joint Venture
Agreement”) is hereby terminated effective as of the MeiYa Dissolution;
provided that (i) any
provisions that, pursuant to the MeiYa Joint Venture Agreement, are expressly
stated to survive termination shall so survive, and (ii) the second and third
sentences of Section 8.1(a) of the MeiYa Joint Venture Agreement shall survive
and shall be amended as follows:
If any
current employee of NTC and/or the Joint Venture Company who was continuously
employed by NTC during the twelve-month period ending June 6, 2008 (i)
permanently transfers to Inotera Memories, Inc. (“Inotera”) no later than
December 31, 2008, and (ii) such employee has worked on a full-time basis for
the Joint Venture Company and/or Inotera during the period from August 1, 2008
to August 1, 2009 (even if, prior to December 31, 2008, such work was performed
as an employee of NTC and not technically as an employee of the Joint Venture
Company and/or Intera) and has not delivered to the Joint Venture Company or
Inotera, or received from the Joint Venture Company or Inotera, a notice of
termination, then NTC shall (x) invoice the Joint Venture Company for an
amount equal to such employee’s base salary for the six (6) months prior to such
transfer from NTC and (y) provide the Joint Venture Company and MNL with
reasonably detailed information supporting the requirements set forth above and
the invoiced amount. Within thirty (30) days of receiving such an
invoice and such supporting information from NTC, the Shareholders shall use
commercially reasonable efforts to cause the Joint Venture Company to pay the
invoiced amounts to NTC. The Shareholders shall not cause the Joint
Venture Company to make a capital reduction, dividend payment or distribution to
the Shareholders if such capital reduction, dividend or distribution would cause
the Joint Venture Company to have insufficient funds to pay its obligations
under the immediately preceding sentence.
(f) Services Agreement.
The Services Agreement between NTC and MeiYa, dated June 6, 2008, is hereby
terminated effective as of the MeiYa Dissolution.
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CONFIDENTIAL
ARTICLE
5
IMI JV DOCUMENTS TO BE
ENTERED INTO AS OF THE 2ND CLOSING
5.1 Joint Venture
Agreement. On the date of the 2nd
Closing, MNL and NTC will enter into a Joint Venture Agreement, substantially in
the form attached hereto as Exhibit G.
5.2 Micron Guaranty
Agreement. On the date of the 2nd
Closing, Micron and NTC will enter into a Guaranty Agreement, substantially in
the form attached hereto as Exhibit H.
5.3 Facilitation
Agreement. On the date of the 2nd
Closing, MNL, NTC and IMI will enter into a Facilitation Agreement,
substantially in the form attached hereto as Exhibit I.
5.4 Supply
Agreement. On the date of the 2nd
Closing, Micron, NTC and IMI will enter into a Supply Agreement, substantially
in the form attached hereto as Exhibit J.
5.5 Micron Assigned Employee
Agreement. On the date of the 2nd
Closing, Micron and IMI will enter into a Micron Assigned Employee Agreement,
substantially in the form attached hereto as Exhibit K.
5.6 NTC Assigned Employee
Agreement. On the date of the 2nd
Closing, NTC and IMI will enter into a NTC Assigned Employee Agreement,
substantially in the form attached hereto as Exhibit L.
5.7 Technology Transfer
Agreement for 68-50 nm Process Nodes. That certain Technology
Transfer Agreement for 68-50 nm Process Nodes between Micron and IMI, dated
October 11, 2008 (the “TTA
68-50”), will become effective, in accordance with its terms, on the date
of the 2nd
Closing.
5.8 Technology Transfer
Agreement. On the date of the 2nd
Closing, Micron, NTC and IMI will enter into a Technology Transfer Agreement,
substantially in the form attached hereto as Exhibit M.
5.9 Corporate Opportunities Side
Letter. On the date of the 2nd
Closing, Micron and NTC will enter into a Corporate Opportunities Side Letter,
substantially in the form attached hereto as Exhibit N.
ARTICLE
6
MISCELLANEOUS
6.1 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 and effect in all other respects. Should any provision of
this Agreement be or become ineffective because of changes in Applicable Laws or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby. If such circumstances
arise, the parties hereto shall negotiate in good faith appropriate
modifications to this Agreement to reflect those changes that are required by
Applicable Law.
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6.2 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.
6.3 Amendment. This
Agreement may not be modified or amended except by a written instrument executed
by, or on behalf of, each of the parties hereto, except that the provisions
relating to (a) the continuance, amendment or termination of the MeiYa JV
Documents referenced in Articles 2, 3 and 4 may be modified or amended by a
written instrument executed by, or on behalf of, all of the Old JV Parties that
are parties thereto and (b) the entering into the IMI JV Documents referenced in
Article 5 may be modified or amended by a written instrument executed by,
or on behalf of, all of the New JV Parties that are contemplated to be parties
thereto.
6.4 Entire
Agreement. This Agreement, together with the Exhibits 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.
6.5 Choice of
Law. This Agreement shall be governed by and construed in
accordance with the laws of the ROC, without giving effect to its conflict of
laws principles.
6.6 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 the Taipei District Court, located in Taipei,
Taiwan, and each of the parties hereto hereby consents and submits to the
exclusive jurisdiction of such court (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to the
fullest extent permitted by Applicable Law, any objection which it may now or
hereafter have to the 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.
6.7 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.
6.8 Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
[SIGNATURE
PAGES FOLLOW]
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CONFIDENTIAL
IN
WITNESS WHEREOF, this Agreement has been duly executed by, and on behalf of, the
parties hereto as of the date first written above.
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MICRON
TECHNOLOGY, INC.
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By:
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/s/ D. Xxxx
Xxxxxx
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D.
Xxxx Xxxxxx
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President
and Chief Operating Officer
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THIS
IS A SIGNATURE PAGE FOR THE MASTER AGREEMENT ENTERED
INTO
AMONG MICRON, MNL, NTC, MEIYA AND IMI
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CONFIDENTIAL
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MICRON
SEMICONDUCTOR B.V.
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By:
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/s/ Xxxxxx X.
Xxxx
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Xxxxxx
X. Xxxx
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Managing
Director A
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By:
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/s/ Xxxxxx Xxxxxxxx / /s/ Xxxxxxx van den
Broek
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Name: Xxxxxx
Xxxxxxxx / Xxxxxxx
van den Broek
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Title Trust
International Management(X.X.X.) B.V.
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Managing
Director B
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THIS
IS A SIGNATURE PAGE FOR THE MASTER AGREEMENT ENTERED
INTO
AMONG MICRON, MNL, NTC, MEIYA AND IMI
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CONFIDENTIAL
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NANYA
TECHNOLOGY CORPORATION
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By:
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/s/ Xxx
Xxxx
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Xxx
Xxxx
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President
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THIS
IS A SIGNATURE PAGE FOR THE MASTER AGREEMENT ENTERED
INTO
AMONG MICRON, MNL, NTC, MEIYA AND IMI
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MEIYA
TECHNOLOGY CORPORATION
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By:
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/s/ Xxxxx
Xxxx
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Name: Xxxxx
Xxxx
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Title: Supervisor
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THIS
IS A SIGNATURE PAGE FOR THE MASTER AGREEMENT ENTERED
INTO
AMONG MICRON, MNL, NTC, MEIYA AND IMI
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INOTERA
MEMORIES, INC.
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By:
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/s/ Xxxxxx
Xxxxx
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Name: Xxxxxx
Xxxxx
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Title: Supervisor
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THIS
IS A SIGNATURE PAGE FOR THE MASTER AGREEMENT ENTERED
INTO
AMONG MICRON, MNL, NTC, MEIYA AND IMI
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