EXHIBIT
10.54
[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT
Micron NTC CONFIDENTIAL
JOINT DEVELOPMENT PROGRAM AGREEMENT
This
JOINT
DEVELOPMENT PROGRAM AGREEMENT (this “ Agreement
”), is made and entered into as of this 21st day of
April, 2008 (“ Effective Date
”), by and between Nanya Technology Corporation (
Nanya Technology
Corporation [Translation from Chinese] ), a company
incorporated under the laws of the Republic of China (“
NTC
”), and Micron Technology, Inc., a Delaware corporation
(“ Micron
”). (NTC and Micron are referred to in this
Agreement individually as a “ Party ” and
collectively as the “ Parties
”).
RECITALS
A. Pursuant
to the Joint Venture Documents (as defined hereinafter) and
the transactions contemplated thereby, MNL, an Affiliate of
Micron and NTC are forming the Joint Venture Company (as
defined hereinafter) for the collaborative manufacture and
sale of Stack DRAM Products exclusively to the
Parties.
B. NTC
and Micron desire to engage in joint development of Stack DRAM
Designs and Process Technology (each, as defined hereinafter)
on process node of [***], or on such other design or process
technology, the Parties may agree pursuant to this Agreement.
The Parties desire to outline the procedures under which they
will pool their respective resources as provided in this
Agreement for the purpose of performing research and
development work relating to Stack DRAM Designs and Process
Technology that will be used by the Joint Venture Company, by
NTC and by Micron, to manufacture Stack DRAM
Products.
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
. In addition to the terms defined elsewhere in
this Agreement, capitalized terms used in this Agreement shall
have the respective meanings set forth below:
“ 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.
“
ATE
” means automatic test equipment, such as that sold
under the trademark ADVENTEST.
“
Burn-In ”
means [***].
“
Burn-In
Documen t” means a document that describes the
specification of voltage and test pattern settings in the
Burn-In test program. The Burn-In Document also
describes the methodology of how the voltage and test pattern
settings are optimized.
“
Business
Day ” means a day that is not a Saturday, Sunday
or other day on which commercial banking institutions in
either the Republic of China or the State of New York
are authorized or required by Applicable Law to be
closed.
“Change of Control” means, with respect to any
first Person, the occurrence of any of the following events,
whether through a single transaction or series of related
transactions: (a) any consolidation or merger of such
first Person with or into another Person in which the holders of
such first Person’s outstanding voting equity immediately
before such consolidation or merger do not, immediately after such
consolidation or merger, own or control directly or indirectly
equity representing a majority of the outstanding voting equity of
the surviving Person; (b) the sale of all or substantially all of
such first Person’s assets to another Person wherein the
holders of such first Person’s outstanding voting equity
immediately before such sale do not, immediately after sale, own or
control directly or indirectly equity representing a majority of
the outstanding voting equity of the purchaser; or (c) the sale of
such first Person’s voting equity to any other Person(s)
wherein the holders of such first Person’s outstanding voting
equity immediately before such sale do not, immediately after such
sale, own or control directly or indirectly equity representing a
majority of the outstanding voting equity of such first
Person.
“
Closing ”
means the remittance by NTC and MNL of the first capital
contribution to the Joint Venture Company as set forth in
Section
2.6 of the Master Agreement.
“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
6.1 deemed to be “Confidential Information”
under the Mutual Confidentiality Agreement.
“
Contractor ”
means a Third Party who (a) is contracted by a Party in
connection with work to be conducted by such Party under a
SOW, (b) has agreed to assign to such contracting Party all
rights in and to any inventions, discoveries, improvements,
processes, copyrightable works, mask works, trade secrets or
other technology that are conceived or first reduced to
practice, whether patentable or not, as a result of any
performance by such Third Party of any obligations of such
Party under a SOW, and all Patent Rights, IP Rights and other
intellectual
property
rights in the foregoing, and (c) has agreed to grant a license
to such contracting Party, with the right to sublicense of
sufficient scope that includes the other Party, under all
Patent Rights, IP Rights and other rights of the Third Party
reasonably necessary for such contracting Party and the other
Party to exploit the work product created by the Third Party
consistent with the rights granted by the contracting Party to
the other Party under the Joint Venture
Documents.
“
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.
“
Coverage
Test ” means test solution for module application
fail in CP/FT/Module ATE.
“
Deadlock
Terminating Party ” shall have the meaning set
forth in Section
III.D.5 of Schedule
2 .
“
Design
Qualification ” means, [***].
“Design SOW” means [***].
“
Design SOW
Costs ” means any and all SOW Costs attributable
to a Design SOW in accordance with Schedule
4 .
“
Draft
” means the mechanism described in Section
5.3 by which either Micron or NTC may select from
Pooled Inventions to solely own.
“
Drafting
Party ” means either Micron or NTC, as the Party
selecting a Pooled Invention pursuant to the
Draft.
“DRAM Module” means one or more 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).
“
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.
“Existing Entity” means [***].
“
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).
“
Foundational
Know-How ” means, with respect to each Party,
[***].
“
Foundry
Customer ” means a Third Party customer of either
NTC or Micron for Stack DRAM Products [***].
“
FT
” means [***].
“
GAAP
” means, with respect to Micron, United States generally
accepted accounting principles, and with respect to NTC,
Republic of China generally accepted accounting principles, in
each case, as consistently applied by the Party for all
periods at issue.
“
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.
“Imaging Product” means any (a) semiconductor
device having a plurality of photo elements (e.g., photodiodes,
photogates, etc.) for converting impinging light into an electrical
representation of the information in the light, (b) image processor
or other semiconductor device for balancing, correcting,
manipulating or otherwise processing such electrical representation
of the information in the impinging light, or (c) combination of
the devices described in clauses (a) and (b).
“
Indemnified
Claim ” shall have the meaning set forth in
Section
8.2 .
“
Indemnified
Party ” shall have the meaning set forth in
Section
8.2 .
“
Indemnifying
Party ” shall have the meaning set forth in
Section
8.2 .
“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.
“
JDP
Co-Chairman ” and “ JDP Co-Chairmen
” shall have the meaning set forth on Schedule
2 .
“
JDP
Committee ” shall mean the committee formed and
operated by Micron and NTC to govern the performance of the
Parties under this Agreement in accordance with the JDP
Committee Charter.
“
JDP Committee
Charter ” means the charter attached as
Schedule
2 .
“
JDP
Design ” means any Stack DRAM Design resulting
from the research and development activities of the Parties
pursuant to this Agreement.
“JDP Inventions” shall mean all discoveries,
improvements, inventions, developments, processes or other
technology, whether patentable or not, that is/are conceived by one
or more Representatives of one or more of the Parties in the course
of activities conducted under this Agreement.
“
JDP Process
Node ” means any Primary Process Node or
Optimized Process Node resulting from the research and
development activities of the Parties pursuant this
Agreement.
“
JDP Work
Product ” means [***].
“
Joint Venture
Company ” means the company formed and operated
in accordance with the Joint Venture Documents.
“Joint Venture Company Joinder” means that
certain Joinder of the Joint Venture Company to the Mutual
Confidentiality Agreement.
“
Joint Venture
Documents ” means the Master Agreement and each
of the agreements listed on Schedules
2.1 through 2.5 of
the Master Agreement Disclosure Letter.
“Lead Product ” means [***].
“
Mask Data
Processing ” means [***].
“
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.
“
Master
Agreement ” means that certain Master Agreement
by and between NTC and Micron dated as of the Effective
Date.
“
Master
Agreement Disclosure Letter ” means that certain
Master Agreement Disclosure Letter by and between NTC and
Micron dated as of the Effective Date containing the Schedules
required by the Master Agreement.
“Micron ” shall have the meaning set forth in
the preamble to this Agreement.
“
Micron
Indemnitees ” shall have the meaning set forth in
Section
8.1 .
“
MNL
” means Micron Semiconductor B.V., a private limited
liability company organized under the laws of the
Netherlands.
“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 [***].
“
Mutual
Confidentiality Agreement ” means (i) prior to
the Closing, that certain Mutual Confidentiality Agreement
among NTC, Micron and MNL referred to on Schedule
2.1 of the Master Agreement Disclosure Letter, and (ii)
following the Closing, that certain Mutual Confidentiality
Agreement among NTC, Micron and MNL referred to on Schedule
2.1 of the Master Agreement Disclosure Letter, as
joined by the Joint Venture Company through the Joint Venture
Company Joinder.
“
NAND Flash
Memory Product ” means a non-volatile
semiconductor memory device containing memory cells that are
electrically programmable and electrically erasable whereby
the memory cells consist of one or more transistors that have
a floating gate, charge trapping regions or any other
functionally equivalent structure utilizing one or more
different charge levels (including binary or multi-level cell
structures), with or without any on-chip control, I/O and
other support circuitry, in wafer, die or packaged
form.
“
NTC
” shall have the meaning set forth in the preamble to
this Agreement.
“
NTC
Indemnitees ” shall have the meaning set forth in
Section
8.1 .
“
OPC
” means optical proximity correction of the circuit
layout patterns, which is important in Mask Data
Processing.
“Optimized Process Node” means
[***].
“
Party
” and “ Parties ”
shall have the meaning set forth in the preamble to this
Agreement.
“
Patent
Prosecution ” means (a) preparing, filing and
prosecuting patent applications (of all types), and (b)
managing any interference, reexamination, reissue, or
opposition proceedings relating to the foregoing.
“
Patent Review
Committee ” means the committee formed by the JDP
Committee to [***].
“
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.
“
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.
[***]
[***]
“
Post
Termination Funding Period ” shall have the
meaning set forth in Section
III.D.5 of Schedule
2 .
“
Primary
Process Node ” means [***].
“
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 [***].
“
Process
Qualification ” means, with respect to each
Primary Process Node and Optimized Process Node, when (a) the
Stack DRAM Products or Stack DRAM Modules designed to be on
the node can be made fully compliant with any applicable
Industry Standard(s) (if any) and [***] or (b) or such other
or additional parameters as may be defined in the Process SOW
as “Process Qualification” for the Primary Process
Node or the Optimized Process Node that is the subject of the
SOW, [***].
“Process SOW” means any SOW primarily directed
to the development of Process Technology, including the development
of a Primary Process Node or an Optimized Process Node to be used
by the Joint Venture Company, Micron or NTC in the manufacture of
Stack DRAM Products.
“
Process SOW
Costs ” means [***].
“Process Technology ” means that process
technology developed before expiration of the Term and utilized in
the manufacture of Stack DRAM wafers, including Probe Testing and
technology developed through Product Engineering thereof
,
regardless of the form in which any of the foregoing is stored, but
excluding any Patent Rights and any technology, trade secrets or
know-how that relate to and are used in any back-end operations
(after Probe Testing).
“
Product
Engineering ” means any one or more of the
engineering activities described on Schedule
7 as applied to Stack DRAM Products or Stack DRAM
Modules.
“
Proposing
Party ” shall have the meaning set forth in
Section
3.2 .
“
Recoverable
Taxes ” shall have the meaning set forth in
Section
4.4 .
“
Rejecting
Party ” shall have the meaning set forth in
Section
3.2 .
“
Rejected
Development Work ” shall have the meaning set
forth in Section
3.2 .
“
Representative
” means with respect to a Party, any director, officer,
employee, agent or Contractor of such Party or a professional
advisor to such Party, such as an attorney, banker
or
financial
advisor of such Party who is under an obligation of
confidentiality to such Party by contract or ethical rules
applicable to such Person.
“
R&D
Roadmap ” has the meaning provided in Section
2.3 .
“
Software ”
means computer program instruction code, whether in
human-readable source code form, machine-executable binary
form, firmware, scripts, interpretive text, or
otherwise. The term “Software” does not
include databases and other information stored in electronic
form, other than executable instruction codes or source code
that is intended to be compiled into executable instruction
codes.
“
SOW
” means a statement of the work that describes research
and development work to be performed under this Agreement and
that has been adopted by the JDP Committee pursuant to
Section 3.2
.
“
SOW
Costs ” means any or all costs that are incurred
by a Party in connection with any SOW as provided on
Schedule
4 .
“
Stack
DRAM ” means dynamic random access memory cell
that functions by using a capacitor arrayed
predominantly above the semiconductor substrate.
“
Stack
DRAM Design ”
means, with respect to a Stack DRAM Product, the corresponding
design components, materials and information listed on
Schedule 3
or as otherwise determined by the JDP Committee in a
SOW.
“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.
“
Subsidiary ”
means, with respect to any specified Person, any other Person
that, directly or indirectly, including through one or more
intermediaries, is controlled by such specified
Person.
“
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.
“
Technology
Transfer Agreement ” means that certain
Technology Transfer Agreement by and among NTC, Micron, and
the Joint Venture Company referred to on Schedule
2.5 of the Master Agreement Disclosure
Letter.
“
Technology
Transfer and License Agreement ” means that
certain Technology Transfer and License Agreement by and
between NTC and Micron referred to on Schedule
2.1 of the Master Agreement Disclosure
Letter.
“
TTLA
68-50 ” means that certain Technology Transfer
and License Agreement For 68-50NM Process Nodes by and between
NTC and Micron referred to on Schedule
2.1 of the Master Agreement Disclosure
Letter.
“
Term
” shall have the meaning set forth in Section 9.1
.
“
Third
Party ” means any Person other than NTC or
Micron.
“Unit Process/Module Invention” means JDP
Inventions related to one or more process steps that are performed
on a semiconductor wafer and that are designed to achieve a
particular feature characteristic or structure.
“
Works
Registration ” shall have the meaning set forth
in Section
5.4(c) .
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
JDP
COMMITTEE; R&D ROADMAP
2.1
JDP
Committee; Patent Review Committee. Micron
and NTC shall form and operate the JDP Committee to govern
their performance under this Agreement in accordance with the
JDP Committee Charter attached as Schedule
2 . The JDP Committee shall form and oversee
the Patent Review Committee, which shall also operate in
accordance with the applicable provisions of Schedule
2 .
2.2
JDP
Co-Chairmen . Micron and NTC shall notify
the other Party in writing of the identity of the full-time
employee of such Party who will serve as its JDP
Co-Chairman. Each JDP Co-Chairman shall serve on
the JDP Committee as provided in Schedule
2 and shall devote his or her attention to the
performance of this Agreement by the Parties. Each
of Micron and NTC may replace its respective JDP Co-Chairman
upon written notice to the other Party; provided that
each Party’s JDP Co-Chairman must at all times be a
full-time employee of such Party.
2.3
R&D
Roadmap .
(a) [***].
(b) [***].
(c) The
first R&D Roadmap shall contain the Stack DRAM Designs and
Process Technology described in the SOWs identified on
Schedule
1 .
ARTICLE 3
DEVELOPMENT PROJECTS
AND SOWS
3.1
Content of
SOWs . The Parties expect that each
SOW will conform to the following requirements, as
applicable:
(a) Each
SOW will contain at least the following:
[***]
(b) The
Process SOW for each Primary Process Node and each Process SOW
effective as of the Effective Date will specify that the work
to be performed thereunder will be performed
[***]
(c) [***]
(d) Process
SOWs for Optimized Process Nodes may specify that the work to
be performed thereunder can be performed [***]
(e) Process
SOWs entered after the Effective Date for work to be performed
[***]
(f)
[***]
(g) [***]
(h) [***]
3.2
Proposal and
Adoption of SOWs.
(a) Each
Party solely through its JDP Co-Chairman, or both of the
Parties jointly through the JDP Chairmen, may submit proposed
SOWs to the JDP Committee for consideration and potential
adoption as an SOW hereunder. SOWs can be proposed
for the design of products that are not at the time of
submission Commodity Stack DRAM Products.
(b) [***]
(c) The
SOWs identified on Schedule
1 are deemed SOWs under this Agreement adopted by the
JDP Committee as of the Effective Date.
(d) [***]
3.3
Development
Restrictions; Rejected Development Work.
[***]
3.4
SOW
Performance Monitoring .
[***]
3.5
JDP
Committee Monitoring . [***]
3.6
On-Site
Visitations . Each Party and its
Representatives shall observe and be subject to all safety,
security and other policies and regulations regarding visitors
and contractors while on site at a facility of the other Party
or its Affiliate. A Party's Representatives who
access any facility of the other Party or its Affiliate shall
not interfere with, and except as otherwise agreed by the
Parties, shall not participate in, the business or operations
of the facility accessed.
3.7
Mask
Source Qualification and Mask Purchases .
(a) [***]
(b) [***]
(c) [***]
3.8
Repository of
JDP Work Product.
(a) Micron
and NTC each shall use commercially reasonable efforts to each
establish a repository in its own facility for storing the JDP
Work Product described on Schedules
3 , 7 ,
8 or
9
separately from other technology, information and data of such
Party and any Third Parties . Each
Party shall implement procedures so that such JDP Work Product
is either created in such repository or added to such
repository in the English language promptly after creation by
employees of such Party, its Existing Entities and its
wholly-owned Subsidiaries assigned to an SOW. Such
repositories in Micron facilities shall be accessible to
employees of
NTC,
its Existing Entities and its wholly-owned Subsidiaries
assigned to perform work under any SOW(s) as reasonably
required for such employees to perform their assigned
work. Such repositories in NTC shall be accessible
to employees of Micron, its Existing Entities and its
wholly-owned Subsidiaries assigned to perform work under any
SOW as reasonably required for such employees to perform their
assigned work. The JDP Co-Chairmen and JDP
Committee Members shall have full access to such
repositories. Once both such repositories are
operational electronic databases that can be synchronized at
least with the other database to contain the same content as
that stored in such other database, the Parties shall use
commercially reasonable efforts to have the databases
automatically and electronically synchronized at least once
per day.
(b) Without
limiting the foregoing Section
3.8(a) , the Parties shall also use their respective
commercially reasonable efforts to accomplish the following
within the time frames described below:
|
|
1)
|
Establish
secure network connectivity between Micron and NTC within [***]
after the Effective Date.
|
|
|
2)
|
Establish
secure email bet
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