EXHIBIT 10.69
NTC/MICRON
CONFIDENTIAL
MICRON GUARANTY
AGREEMENT
This GUARANTY (this “
Guaranty ”) is made and entered into as of the 26th
day of November, 2008, by Micron Technology, Inc., a Delaware
corporation (“ Guarantor ”), in favor of Nanya
Technology Corporation Nanya Technology Corporation [Translation
from Chinese], a company incorporated under the laws of the ROC
(“ Beneficiary ” or “ NTC
”). Capitalized terms used in this Guaranty shall
have the respective meanings ascribed to such terms in Article I of
this Guaranty or as otherwise provided in Section
1.2. All capitalized terms used in this Guaranty but not
otherwise defined, shall have the meanings ascribed to them in the
Joint Venture Agreement, of even date herewith, between Micron
Semiconductor B.V., a private limited liability company organized
under the laws of the Netherlands (“ MNL ”) and
Beneficiary (the “ Joint Venture Agreement
”).
RECITALS
A. Beneficiary
and Infineon Technologies AG, a company incorporated under the laws
of Germany (“ Infineon ”), have previously
formed Inotera Memories, Inc. Inotera Memories Inc. [Translation
from Chinese] , a company incorporated under the laws of the
ROC (the “ Joint Venture Company ”).
B. Infineon
subsequently assigned to Qimonda AG, a company incorporated under
the laws of Germany (hereinafter “ Qimonda ”),
all of Infineon’s Shares in the Joint Venture
Company.
C. In
accordance with that certain Share Purchase Agreement, dated
October 11, 2008, by and between MNL and Qimonda, MNL is acquiring
Shares in the Joint Venture Company from Qimonda.
D. MNL
and Beneficiary are entering into the Joint Venture Agreement to
set forth certain agreements regarding the ownership, governance
and operation of the Joint Venture Company.
E. Guarantor
is the direct or indirect owner of all the equity securities of
MNL, and Guarantor will, as a consequence, benefit from the
consummation of the transactions contemplated by the Joint Venture
Agreement.
F. Beneficiary
is not willing to enter into the Joint Venture Agreement unless
Guarantor agrees to be bound by the terms of this
Guaranty.
G. In
order to induce Beneficiary to enter into the Joint Venture
Agreement, Guarantor has agreed to execute and deliver to
Beneficiary this Guaranty.
NOW THEREFORE, for good and
valuable consideration, including the inducement of Beneficiary to
consummate the transactions contemplated by the Joint Venture
Agreement, and other consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as
follows:
ARTICLE I. DEFINITIONS
Section 1.1
Defined Terms
. For purposes of this
Guaranty, the following terms will have the following meanings when
used herein with initial capital letters:
“ Applicable Law
” means any applicable laws, statutes, rules, regulations,
ordinances, orders, codes, arbitration awards, judgments, decrees
or other legal requirements of any Governmental Entity.
“ Beneficiary
” shall have the meaning set forth in the preamble of this
Guaranty.
“ Guarantor
” shall have the meaning set forth in the preamble of this
Guaranty.
“ Guaranty
” shall have the meaning set forth in the preamble of this
Guaranty.
“ Guaranty
Obligations ” shall have the meaning set forth in
Section 2.1 of this
Guaranty.
“ Infineon
” shall have the meaning set forth in the
Recitals.
“ Joint Venture
Agreement ” shall have the meaning set forth in the
preamble of this Guaranty.
“ Joint Venture
Company ” shall have the meaning set forth in the
Recitals.
“ MNL ”
shall have the meaning set forth in the preamble of this
Guaranty.
“ NTC ”
shall have the meaning set forth in the preamble of this
Guaranty.
“ Party ”
means Guarantor or Beneficiary individually, and “
Parties ” means Guarantor and Beneficiary
collectively.
“ 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.
“ Qimonda ”
shall have the meaning set forth in the Recitals.
“ ROC ” or
“ Taiwan ” means the Republic of
China.
Section 1.2
Certain Interpretative
Matters .
(a)
Unless the context requires
otherwise, (1) all references to Sections, Articles or Recitals are
to Sections, Articles or Recitals of this Guaranty, (2) words in
the singular include the plural and vice versa, (3) the term
“ including ” means “including without
limitation,” and (4) the terms “ herein ,”
“ hereof ,” “ hereunder ” and
words of similar import shall mean references to this Guaranty as a
whole and not to any individual section or portion
hereof. All references to “ day ” or
“ days ” mean calendar days.
(b)
No provision of this Guaranty 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) such provision is inconsistent with
any prior draft of this Guaranty or such provision.
ARTICLE II. GUARANTY
Section 2.1
Guaranty Obligations
. Subject to the terms
and conditions set forth in this Guaranty, Guarantor hereby
irrevocably and unconditionally guarantees the prompt performance
by MNL of its obligations under the Joint Venture Agreement (the
“ Guaranty Obligations ”).
Section 2.2
Nature of Guaranty
. Insofar as the payment
by MNL of any sums of money to the Joint Venture Company or the
Beneficiary is involved, this Guaranty is a guarantee of payment
and not of collection. Should the Joint Venture Company
or the Beneficiary be obligated by any bankruptcy or other law to
repay to MNL, Guarantor, or any trustee, receiver or other
representative of either of them, any amounts previously paid, this
Guaranty will be reinstated to the amount of such
repayments.
Section 2.3
Independent
Obligations
