TECHNOLOGY TRANSFER AND LICENSE AGREEMENT
FOR 68-50nm PROCESS NODES
This
TECHNOLOGY
TRANSFER AND LICENSE AGREEMENT FOR 68-50nm PROCESS
NODES (this “ Agreement
”), is made and entered into as of this 21st day of
April, 2008 (“ Effective Date
”), by and between Micron Technology, Inc., a Delaware
corporation (“ Micron ”),
and Nanya Technology Corporation ( Nanya Technology
Corporation [Translation from Chinese] ), a company
incorporated under the laws of the Republic of China (“
NTC
”). (Micron and NTC are referred to in this
Agreement individually as a “ Party ” and
collectively as the “ Parties
”).
RECITALS
A. Micron
has developed technology for 68nm and 50nm Process Nodes for
the manufacture of Stack DRAM Products.
B. NTC
desires to have such technology transferred to NTC for its use
in the manufacture of Stack DRAM Products, and Micron intends
to so transfer such technology to NTC and license NTC
thereunder.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual promises and
agreements herein set forth, the Parties, intending to be
legally bound, hereby agree as follows.
ARTICLE 1
DEFINITIONS; CERTAIN
INTERPRETATIVE MATTERS
1.1
Definitions
.
“
Adjusted
Revenues ” means[***].
“
Affiliate ”
means, with respect to any specified Person, any other Person
that directly or indirectly, including through one or more
intermediaries, controls, or is controlled by, or is under
common control with such specified Person; and the term
“ affiliated ”
has a meaning correlative to the foregoing.
“
Agreement ”
shall have the meaning set forth in the preamble to this
Agreement.
“
Applicable
Law ” means any applicable laws, statutes, rules,
regulations, ordinances, orders, codes, arbitration awards,
judgments, decrees or other legal requirements of any
Governmental Entity.
“
BEOL
Costs ” means [***].
“Commodity Stack DRAM Products” means Stack DRAM
Products for system main memory for computing or Mobile Devices, in
each case that are fully compliant with one or more Industry
Standard(s).
“
Confidential
Information ” means that information described in
Section
8.1 deemed to be “Confidential Information”
under the Mutual Confidentiality Agreement.
“
Control ”
(whether capitalized or not) means the power or authority,
whether exercised or not, to direct the business, management
and policies of a Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise, which power or authority shall conclusively be
presumed to exist upon possession of beneficial ownership or
power to direct the vote of [***] of the votes entitled to be
cast at a meeting of the members, shareholders or other equity
holders of such Person or power to control the composition of
a majority of the board of directors or like governing body of
such Person; and the terms “ controlling
” and “ controlled ”
have meanings correlative to the foregoing.
“
DRAM
Product ” means any stand-alone semiconductor
device that is a dynamic random access memory device and that
is designed or developed primarily for the function of storing
data, in die, wafer or package form.
“
Effective
Date ” shall have the meaning set forth in the
preamble to this Agreement.
“
Force Majeure
Event ” means the occurrence of an event or
circumstance beyond the reasonable control of a Party and
includes, without limitation, (a) explosions, fires, flood,
earthquakes, catastrophic weather conditions, or other
elements of nature or acts of God; (b) acts of war (declared
or undeclared), acts of terrorism, insurrection, riots, civil
disorders, rebellion or sabotage; (c) acts of federal, state,
local or foreign Governmental Entity; (d) labor disputes,
lockouts, strikes or other industrial action, whether direct
or indirect and whether lawful or unlawful; (e) failures or
fluctuations in electrical power or telecommunications service
or equipment; and (f) delays caused by the other Party or
third-party nonperformance (except for delays caused by a
Party’s Contractors, subcontractors or
agents).
“
Foundry
Customer ” means a Third Party customer for Stack
DRAM Products [***].
“
Foundry
Customer Adjusted Revenues ” means
[***].
“
Foundry
Customer Products ” means [***].
“
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.
“
Gross
Revenues ” means, [***].
“Industry Standard” means the documented
technical specifications that set forth the pertinent technical and
operating characteristics of a DRAM Product if such specifications
are publicly available for use by DRAM manufacturers, and if
[***].
“
IP
Rights ” means copyrights, rights in trade
secrets, Mask Work Rights and pending applications or
registrations of any of the foregoing anywhere in the
world. The term “IP Rights” does not
include any Patent Rights or rights in
trademarks.
“
Mask Work
Rights " means rights under the United States
Semiconductor Chip Protection Act of 1984, as amended from
time to time, or under any similar equivalent laws in
countries other than the United States.
“Micron ” shall have the meaning set forth in
the preamble to this Agreement.
“
Micron IP
Royalties ” mean [***].
“Mobile Device” means a handheld or portable
device using as its main memory one or more Stack DRAM Products
that is/are compliant with an Industry Standard and
[***].
“
NTC
Products ” means [***].
“
NTC Qualified
Fab ” means [***].
“
Patent
Rights ” means all rights associated with any and
all issued and unexpired patents and pending patent
applications in any country in the world, together with any
and all divisionals, continuations, continuations-in-part,
reissues, reexaminations, extensions, foreign counterparts or
equivalents of any of the foregoing, wherever and whenever
existing.
“
Probe
Testing ” means testing, using a wafer test
program as set forth in the applicable specifications, of a
wafer that has completed all processing steps deemed necessary
to complete the creation of the desired Stack DRAM integrated
circuits in the die on such wafer, the purpose of which test
is to determine how many and which of the die meet the
applicable criteria for such die set forth in the
specifications.
“
Process
Node ” means [***].
“
Recoverable
Taxes ” shall have the meaning set forth in
Section
4.8(a) .
“
Stack
DRAM ” means dynamic random access memory cell
that functions by using a capacitor arrayed predominantly
above the semiconductor substrate.
“Stack DRAM Module” means one or more Stack DRAM
Products in a JEDEC-compliant package or module (whether as part of
a SIMM, DIMM, multi-chip package, memory card or other memory
module or package).
“Stack DRAM Product” means any memory comprising
Stack DRAM, whether in die or wafer form.
“
Tax
” or “ Taxes ”
means any federal, state, local or foreign net income, gross
income, gross receipts, sales, use ad valorem, transfer,
franchise, profits, service, service use, withholding,
payroll, employment, excise, severance, stamp, occupation,
premium, property, customs, duties or other type of fiscal
levy and all other taxes, governmental fees, registration
fees, assessments or charges of any kind whatsoever, together
with any interest and penalties, additions to tax or
additional amounts imposed or assessed with respect
thereto.
“
Taxing
Authority ” means any Governmental Entity
exercising any authority to impose, regulate or administer the
imposition of Taxes.
“
Third
Party ” means any Person other than NTC or
Micron.
“
Transferred
Technology ” means [***].
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 accounting term not otherwise
defined in this Agreement has the meaning commonly applied to
it in accordance with GAAP, (3) words in the singular
include the plural and vice versa, (4) the term “
including ”
means “including without limitation,” and
(5) 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. Unless otherwise denoted, 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.
(b) No
provision of this Agreement will be interpreted in favor of,
or against, either Party by reason of the extent to which (1)
such Party or its counsel participated in the drafting thereof
or (2) any such provision is inconsistent with any prior draft
of this Agreement or such provision.
ARTICLE 2
LICENSE
GRANT
2.1
Micron Grant to
NTC . Subject to the terms and conditions of
this Agreement, Micron grants to NTC a [***] license to
[***]:
(a) [***]
(b) [***]
2.2 [***].
ARTICLE 3
TRANSFER
OF TECHNOLOGY
3.1
Delivery of
Micron Transferred Technology to NTC
. Starting promptly after the Effective Date and
ending no later than [***] after the Effective Date, to the
extent not previously delivered, Micron shall deliver to NTC
[***] as of the Effective Date, using delivery methods
commonly used in the industry and in accordance with
Micron’s typical technology transfer process used
between its own facilities, which process is outlined on
Schedule
3 . Except as provided in Section
3.2 , the foregoing obligation does not require Micron
to create, make, adapt, develop, modify and/or translate any
such information or materials. NTC may at any time
request Micron in writing to supplement its prior disclosures
of such Transferred Technology with any items NTC believes to
be missing or incomplete from such disclosures; however, with
respect to the subject matter of any such requests made after
[***] after the date that Micron notifies NTC that its
delivery obligation is complete, [***].
3.2
Preproduction
Wafers . Within [***] after the Effective
Date, Micron shall, [***], provide to NTC [***]. On
a schedule mutually agreed, Micron shall, [***], provide to
[***].
3.3
Engineering
Se
