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AMENDED AND RESTATED JOINT VENTURE AGREEMENT

Joint Venture JV Agreement

AMENDED AND RESTATED JOINT VENTURE AGREEMENT | Document Parties: MICRON TECHNOLOGY INC You are currently viewing:
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MICRON TECHNOLOGY INC

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Title: AMENDED AND RESTATED JOINT VENTURE AGREEMENT
Date: 4/9/2010
Industry: Computer Storage Devices     Sector: Technology

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EXHIBIT 10.87

 

[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT

 

NTC/MICRON CONFIDENTIAL

AMENDED AND RESTATED JOINT VENTURE AGREEMENT

 

This AMENDED AND RESTATED JOINT VENTURE AGREEMENT, dated this 11 th day of January, 2010, is made and entered into by and between MICRON SEMICONDUCTOR B.V. (hereinafter “ MNL ”), a private limited liability company organized under the laws of the Netherlands and NANYA TECHNOLOGY CORPORATION ( Nanya Technology Corporation [Translation from Chinese] ) (hereinafter “ NTC ”), a company incorporated under the laws of the Republic of China (“ ROC ” or “ Taiwan ”) (MNL and NTC are each referred to individually as a “ JV Party, ” and collectively as the “ JV Parties ”).

 

RECITALS

 

A.           NTC and Infineon Technologies AG, a company incorporated under the laws of Germany (hereinafter “ 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 (the “ Qimonda/MNL Share Purchase Agreement ”), by and between Micron Technology, Inc., a Delaware corporation (“ Micron ”), MNL, Qimonda and Qimonda Holding B.V., a private limited company organized under the laws of the Netherlands (“ Qimonda B.V. ”), MNL acquired from Qimonda and Qimonda B.V. Shares in the Joint Venture Company.

 

D.           The JV Parties previously entered into that certain Joint Venture Agreement, dated November 26, 2008 (the “ Original Joint Venture Agreement ”), to set forth certain agreements regarding the ownership, governance and operation of the Joint Venture Company.

 

E.           The JV Parties now desire to amend and restate the Original Joint Venture Agreement in order to, among other things, reflect certain changes the JV Parties deem appropriate in light of the recently completed public sale of Shares (as defined hereinafter) by the Joint Venture Company.

 

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 to amend and restate the Original Joint Venture Agreement in its entirety to read as follows:

 

 

 


NTC/MICRON CONFIDENTIAL

 

ARTICLE 1

 

DEFINITIONS; INTERPRETATION

 

Section 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:

 

2 nd Closing ” shall have the meaning set forth in the Qimonda/MNL Share Purchase Agreement.

 

Accountants ” shall have the meaning set forth in Section 10.2(c)(ii) of this Agreement.

 

Affiliate ” means, with respect to any specified Person, any other Person that, directly or indirectly, including through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person; and the term “ affiliated ” has a meaning correlative to the foregoing.

 

Agreement ” means this Amended and Restated Joint Venture Agreement.

 

Annual Budget ” shall have the meaning set forth in Section 7.5(a)(ii) of this Agreement.

 

Annual Business Plan ” shall have the meaning set forth in Section 7.5(a)(i) of this Agreement.

 

Answer Notice ” shall have the meaning set forth in Section 7.3(b) of 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.

 

Articles of Incorporation ” means the Articles of Incorporation of the Joint Venture Company in the form and substance as Exhibit A attached to this Agreement, and as amended from time to time.

 

Baseline Flow ” shall have the meaning set forth in Section 7.2(b)(v) of this Agreement.

 

Board of Directors ” means the board of directors of the Joint Venture Company.

 

Boundary Conditions ” means, with respect to any fab, the Trench DRAM Boundary Conditions and Stack DRAM Boundary Conditions.

 

Business Day ” means a day that is not a Saturday, Sunday or other day on which commercial banking institutions in either the ROC or the State of New York are authorized or required by Applicable Law to be closed.

 

Business Plan ” means any Annual Business Plan.

 

Buyout Notice ” shall have the meaning set forth in Section 13.1(a) of this Agreement.

 

 

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NTC/MICRON CONFIDENTIAL

 

 

Buyout Price ” shall have the meaning set forth in Section 12.3(a) of this Agreement.

 

Buyout Shares ” shall have the meaning set forth in Section 13.1(a) of this Agreement.

 

Buyout Subsidiary ” shall have the meaning set forth in Section 13.2 of this Agreement.

 

Chairman ” means the Chairman of the Board of Directors.

 

Change Notice ” shall have the meaning set forth in Section 7.3(b) of this Agreement.

 

Closing ” means the consummation of the 2nd Closing.

 

Closing Date ” means November 26, 2008, the date on which the Closing occurred.  For purposes of this Agreement and the other agreements and instruments referenced herein, the Closing shall be deemed to have occurred at 12:01 a.m. in Taipei, Taiwan on such date.

 

Competitively Sensitive Information ” means any information, in whatever form, that has not been made publicly available relating to products and services that Micron or a Subsidiary of Micron, on the one hand, and NTC or a Subsidiary of NTC, on the other hand, sells in competition with the other at the execution of this Agreement or thereafter, including DRAM Products, to the extent such information of the Person selling such products and services includes price or any element of price, customer terms or conditions of sale, seller-specific costs, volume of sales, output (but not including the Joint Venture Company’s output), bid terms of the foregoing type and such similar information as is specifically identified electronically or in writing to the Joint Venture Company by Micron or a Subsidiary of Micron, on the one hand, and NTC or a Subsidiary of NTC, on the other hand, as competitively sensitive information.

 

Compliant JV Party ” shall have the meaning set forth in Section 13.1(a) of this Agreement.

 

Confidentiality Agreement ” shall have the meaning set forth in Section 15.13(a) of this Agreement.

 

Control ” (whether or not capitalized) 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.

 

COSL ” shall have the meaning set forth in Section 11.6 of this Agreement.

 

Cure Period ” shall have the meaning set forth in Section 12.5 of this Agreement.

 

Deadlock ” shall have the meaning set forth in Section 12.1 of this Agreement.

 

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NTC/MICRON CONFIDENTIAL

 

Defaulting JV Party ” shall have the meaning set forth in Section 12.4 of this Agreement.

 

 “ Design ID ” means a part number that is assigned to a unique DRAM Design of a particular DRAM Product, which may include a number or letter designating a specific device revision.

 

Design SOW ” means any [***] .

 

Dilutive Transaction ” means a transaction in which the Joint Venture Company issues Shares and a JV Party does not purchase 100% of the Shares that such JV Party would be entitled to purchase with respect to such transaction as a result of fully exercising its pre-emptive right with respect to the issuance of the Shares; provided, however, that such transaction shall not be a Dilutive Transaction if neither JV Party exercises any of its pre-emptive rights with respect to such issuance of Shares.

 

Divestiture Action ” shall have the meaning set forth in Section 2.4(c)(v) of this Agreement.

 

DRAM Design ” means an Trench DRAM Designs or Stack DRAM Design.

 

DRAM Product ” means a Trench DRAM Product or Stack DRAM Product.

 

Employee Restriction Period ” means the period commencing on the Closing Date and ending on the date that is two (2) years after the later of (i) the sale, exchange, transfer, or disposal of all of the ordinary shares of the Joint Venture Company owned by one JV Party and its Subsidiaries to the other JV Party, its Affiliates or to a Third Party that was not in contravention of this Agreement and (ii) the termination of the JDP Agreement.

 

Equity Interest ” means a JV Party’s percentage ownership of the Shares as determined by dividing the number of Shares owned by such JV Party at the time of determination by the total issued and outstanding Shares at the time of determination.

 

Event of Default ” shall have the meaning set forth in Section 12.4 of this Agreement.

 

Executive Vice President ” shall have the meaning set forth in Section 5.4(b) of this Agreement.

 

Exercise Notice ” shall have the meaning set forth in Section 12.6(a) of this Agreement.

 

Fair Value ” means (i) if the Joint Venture Company is listed on the Taiwan Stock Exchange, [***] of the Shares immediately prior to the date of the Exercise Notice or the Buyout Notice, as applicable; or (ii) if the Joint Venture Company is not then listed on the Taiwan Stock Exchange, the fair value immediately prior to the date of the Exercise Notice or Buyout Notice, as applicable, as determined by independent appraisers selected as follows: each JV Party shall appoint one independent appraiser, which shall be an internationally recognized accounting, valuation or investment banking firm, and these two independent appraisers shall mutually select a third independent appraiser.  Each such appraiser shall in good faith conduct its own

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independent appraisal to determine the fair value of the Shares (ignoring any applicable minority discounts or effects of illiquidity that may be associated with the Shares of the Joint Venture Company), and [***] that are the closest in value shall be the Fair Value of the Shares.

 

[***]

 

Filing ” shall have the meaning set forth in Section 2.4 of this Agreement.

 

Filing Event ” shall have the meaning set forth in Section 2.4 of this Agreement.

 

Fiscal Quarter ” means any of the four financial accounting quarters within the Fiscal Year.

 

Fiscal Year ” shall have the meaning set forth in Section 10.1 of this Agreement.

 

GAAP ” means generally accepted accounting principles, consistently applied 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.

 

ICDR ” means the International Centre for Dispute Resolution of the American Arbitration Association.

 

Imaging Product ” means any (i) 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, (ii) image processor or other semiconductor device for balancing, correcting, manipulating or otherwise processing such electrical representation of the information in the impinging light, or (iii) combination of the devices described in clauses (i) and (ii).

 

 “ Infineon ” shall have the meaning set forth in the Recitals of this Agreement.

 

Initiating JV Party ” shall have the meaning set forth in Section 7.3(b) of this Agreement.

 

JDP Agreement ” means that certain Joint Development Program Agreement between NTC and Micron, dated as of April 21, 2008, as amended.

 

JDP Committee ” means the committee formed and operated by Micron and NTC to govern the performance of Micron and NTC under the JDP Agreement in accordance with the JDP Committee Charter.

 

JDP Committee Charter ” means the charter attached as Schedule 2 to the JDP Agreement.

 

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NTC/MICRON CONFIDENTIAL

 

Joint Venture Company ” shall have the meaning set forth in the Recitals to this Agreement.

 

Joint Venture Documents ” means the documents identified on Schedule A to this Agreement.

 

Joint Venture Reportable Events ” shall have the meaning set forth in Section 10.3 of this Agreement.

 

JV Party ” shall have the meaning set forth in the preamble to this Agreement.

 

Manufacturing Capacity ” means Trench DRAM Manufacturing Capacity and Stack DRAM Manufacturing Capacity.

 

Manufacturing Committee ” shall have the meaning set forth in Section 7.2(b)(i) of this Agreement.

 

Manufacturing Plan ” shall have the meaning set forth in Section 7.2(c) of this Agreement.

 

Maximum Output Percentage Adjustment ” means the [***].

 

Micron ” shall have the meaning set forth in the Recitals to this Agreement.

 

Micron Assigned Employee Agreement ” means that certain Micron Assigned Employee Agreement between Micron and the Joint Venture Company, dated as of the Closing Date.

 

[***].

 

Minimally Restored Position ” has the meaning set forth in Section 11.5(c) of this Agreement.

 

MNL ” shall have the meaning set forth in the preamble to this Agreement.

 

MTT ” shall mean Micron Technology Asia Pacific, Inc., an Idaho corporation.

 

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.

 

Non-compliant JV Party ” shall have the meaning set forth in Section 13.1(a) of this Agreement.

 

Non-Defaulting JV Party ” shall have the meaning set forth in Section 12.5 of this Agreement.

 

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NTC/MICRON CONFIDENTIAL

 

Non-SOW Product ” means a class of Stack DRAM Product that does not result from a SOW.

 

Notice of Default ” shall have the meaning set forth in Section 12.5 of this Agreement.

 

NT$ ” means the lawful currency of the ROC.

 

NTC ” shall have the meaning set forth in the preamble to this Agreement.

 

NTC Assigned Employee Agreement ” means that certain NTC Assigned Employee Agreement between NTC and the Joint Venture Company, dated as of the Closing Date.

 

[***].

 

Offered Shares ” means the Shares as defined in Section 9.3(a) of this Agreement.

 

Option Period ” shall have the meaning set forth in Section 9.3(b) of this Agreement.

 

Original Joint Venture Agreement ” shall have the meaning set forth in the Recitals to this Agreement.

 

Other JV Party ” shall have the meaning set forth in Section 7.3(b) of this Agreement.

 

Output Percentage ” means [***].

 

Output Percentage Adjustment ” means, [***].

 

Permitted Transfer ” shall have the meaning set forth in Section 9.2 of this Agreement.

 

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.

 

Plastics ” shall have the meaning set forth in Section 11.5(b) of this Agreement.

 

 “ President ” shall have the meaning set forth in Section 5.4(a) of this Agreement.

 

Process Node ” means [***].

 

Prohibited Employees ” shall have the meaning set forth in Section 8.4(a) of this Agreement.

 

Proposing JV Party ” shall have the meaning set forth in Section 12.3(a) of this Agreement.

 

Purchaser ” shall mean any Person for and to whom the Joint Venture Company manufactures and delivers DRAM Products under the Supply Agreement, currently NTC or Micron.

 

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NTC/MICRON CONFIDENTIAL

 

Qimonda ” shall have the meaning set forth in the Recitals to this Agreement.

 

Qimonda B.V. ” shall have the meaning set forth in the Recitals to this Agreement.

 

Qimonda/MNL Share Purchase Agreement ” shall have the meaning set forth in the Recitals to this Agreement.

 

Restricted Employees ” shall have the meaning set forth in Section 8.4(a) of this Agreement.

 

Receiving Party ” shall have the meaning set forth in Section 9.3(a) of this Agreement.

 

Receiving JV Party ” shall have the meaning set forth in Section 12.3(a) of this Agreement.

 

Regulatory Law ” shall have the meaning set forth in Section 2.4 of this Agreement.

 

Restored Position ” shall have the meaning set forth in Section 11.5(b) of this Agreement.

 

ROC ” shall have the meaning set forth in the preamble to this Agreement.

 

ROC Company Law ” means the Company Law of the ROC, promulgated on December 26, 1929, and as last amended on February 3, 2006.

 

ROC Securities Exchange Law ” means the Securities and Exchange Law of the ROC, promulgated on April 30, 1968, and as last amended on May 30, 2006.

 

Sale Offer ” shall have the meaning set forth in Section 9.3(a) of this Agreement.

 

Share Decrease Percentage ”  means [***].

 

Share Disposition ” shall have the meaning set forth in Section 7.3(b) of this Agreement.

 

Shareholders’ Meeting ” or “ Shareholders’ Meetings ” shall have the meaning set forth in Section 6.2 of this Agreement.

 

Shares ” means the ordinary shares of the Joint Venture Company, each having a par value of [***].

 

SOW ” means a statement of the work that describes research and development work to be performed under the JDP Agreement and that has been adopted by the JDP Committee pursuant to Section 3.2 of the JDP Agreement.

 

Stack DRAM ” means dynamic random access memory cell that functions by using a  capacitor arrayed predominantly above the semiconductor substrate.

 

Stack DRAM Boundary Conditions ” means, with respect to any fab, a requirement that, at any point in time:

 

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NTC/MICRON CONFIDENTIAL

 

[***].

 

Stack DRAM Design ” means, with respect to a Stack DRAM Product, all of the design elements, components, specifications and information required to manufacture the subject Stack DRAM Product, including some or all of the elements, components, specifications and information listed on Schedule 3 to the JDP Agreement or others.

 

Stack DRAM Manufacturing Capacity  means, with respect to each of the Joint Venture Company’s fabs, the total work minutes available for each Process Node to manufacture Stack DRAM Products at such fab.

 

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.

 

Supply Agreement ” means that certain Supply Agreement among NTC, Micron and the Joint Venture Company, dated as of November 26, 2008, as subsequently amended and restated effective as of April 1, 2009, as the same may be amended from time-to-time.

 

Taiwan ” shall have the meaning set forth in the preamble to this Agreement.

 

Taiwan GAAP ” means GAAP used in the ROC, as in effect from time to time, consistently applied for all periods at issue.

 

Technology Transfer Agreement ” means that certain Technology Transfer Agreement among NTC, Micron and the Joint Venture Company, dated as of the Closing Date.

 

Third Party ” means any Person other than NTC, Micron, the Joint Venture Company or any of their respective Subsidiaries.

 

Transfer ” shall have the meaning set forth in Section 9.1(a) of this Agreement.

 

Transfer Notice ” shall have the meaning set forth in Section 9.3(a) of this Agreement.

 

Transfer Period ” shall have the meaning set forth in Section 9.3(d) of this Agreement.

 

Transferor ” shall have the meaning set forth in Section 9.3(a) of this Agreement.

 

Transition Period ” shall have the meaning set forth in Section 2.1(b) of this Agreement.

 

Trench Contract Process ” means the 90nm and 70nm trench based DRAM process technology previously transferred to the Joint Venture Company under that certain Know How

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NTC/MICRON CONFIDENTIAL

 

Transfer Agreement among the Joint Venture Company, NTC and Qimonda, dated November 13, 2002, as amended.

 

Trench DRAM ” means a dynamic random access memory cell that functions employing a capacitor arrayed predominantly below the surface of the semiconductor substrate.

 

Trench DRAM Boundary Conditions ” means, with respect to any fab, a requirement that, at any point in time:

 

[***].

 

Trench DRAM Designs ” means, with respect to a Trench DRAM Product, the corresponding design components, materials and information.

 

Trench DRAM Exception Products ” means [***].

 

Trench DRAM Manufacturing Capacity ” means, with respect to each of the Joint Venture Company’s fabs, the total work minutes available for each Process Node to manufacture Trench DRAM Products at such fab.

 

Trench DRAM Products ” means trench based dynamic random access memory products manufactured by the Joint Venture Company in accordance with the Trench Contract Process.

 

TTA 68-50 ” means that certain Technology Transfer Agreement for 68-50 nm Process Nodes between Micron and the Joint Venture Company dated as of October 11, 2008.

 

TTLA ” shall have the meaning set forth in Section 11.5(a) of this Agreement.

 

[***] ” shall have the meaning set forth in Section 11.5(a) of this Agreement.

 

U.S. GAAP ” means GAAP used in the United States, as in effect from time to time.

 

Vice-Chairman ” means the Vice Chairman of the Board of Directors.

 

Wafer Start ” means the initiation of manufacturing services with respect to a wafer.

 

Wholly-Owned Subsidiary ” of a Person means a Subsidiary, all of the shares of stock or other ownership interests of which are owned, directly or indirectly through one or more intermediaries, by such Person, other than a nominal number of shares or a nominal amount of other ownership interests issued in order to comply with requirements that such shares or interests be held by one or more other Persons, including requirements for directors’ qualifying shares or interests, requirements to have or maintain two or more stockholders or equity owners or other similar requirements.

 

Section 1.2   Certain Interpretive Matters .

 

(a)   Unless the context requires otherwise, (i) all references to Sections, Articles, Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits, Appendices or

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NTC/MICRON CONFIDENTIAL

 

Schedules 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 Taiwan GAAP, (iii) words in the singular include the plural and vice versa, (iv) the term “ including ” means “ including without limitation, ” and (v) 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 ” mean calendar days.

 

(b)   No provision of this Agreement will be interpreted in favor of, or against, either JV Party by reason of the extent to which (i) such JV 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.

 

(c)   For purposes of the definition of Boundary Conditions, the following fabs collectively shall constitute a single fab:  (i) the existing fabs commonly referred to as “Fab 1” and “Fab 2” at Hwa Ya Technology Park, Taoyuan, Taiwan, and (ii) the fab leased as of the Closing Date by MeiYa Technology Corporation ( MeiYa Technology Corporation [Translation from Chinese] ), a company incorporated under the laws of the ROC, and located at Hwa Ya Technology Park, Taoyuan, Taiwan, so long as such fab is operated by the Joint Venture Company.

 

ARTICLE 2

 

THE JOINT VENTURE COMPANY

 

Section 2.1   General Matters .

 

(a)   Name .  The JV Parties shall use best efforts to cause the Joint Venture Company to be named Inotera Memories, Inc. [Translation from Chinese]  in Chinese and “ Inotera Memories, Inc. ” in English.  The JV Parties acknowledge and agree to use best efforts to cause the Joint Venture Company to be continued as a company-limited-by-shares under the laws of the ROC.

 

(b)   Purpose .  During the period commencing on the date hereof and ending on the date that the Joint Venture Company’s fabs are fully converted (as determined based on the delivery of the final Trench DRAM Product manufactured by the Joint Venture Company) from the manufacture of Trench DRAM Products to the manufacture of Stack DRAM Products (the “ Transition Period ”), the JV Parties shall use best efforts to cause the purpose of the Joint Venture Company to be the manufacture and sale of certain Trench DRAM Products and Stack DRAM Products exclusively for and to Micron and NTC.  After the Transition Period, the JV Parties shall use best efforts to cause the purpose of the Joint Venture Company to be the manufacture and sale of certain Stack DRAM Products exclusively for and to Micron and NTC; and the entry of, or engagement in, any such lawful transactions or activities in furtherance of the foregoing purpose.

 

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(c)   Business Scope .  Subject to amendment by the JV Parties from time to time and any necessary approval from the relevant Governmental Entities, the JV Parties shall use best efforts to cause the registered business scope of the Joint Venture Company to be as set forth in its business license, other incorporation documents and the Articles of Incorporation, all as mutually agreed upon by the JV Parties.

 

(d)   Principal Place of Business .  The JV Parties shall use best efforts to cause the registered address and the principal place of business of the Joint Venture Company to be at Hwa-Ya Technology Park, Taoyuan, Taiwan, ROC, unless the Board of Directors changes the registered address or the principal place of business of the Joint Venture Company to such other place as the Board of Directors may from time to time determine.  The Joint Venture Company may maintain offices and places of business at such other place or places within or outside of Taiwan as the Board of Directors may deem to be advisable.

 

Section 2.2   Articles of Incorporation .  In case of any conflict or inconsistency between the provisions of the Articles of Incorporation and the terms of this Agreement, the terms of this Agreement shall prevail as between the JV Parties to the extent permitted under the Applicable Laws.  The JV Parties shall exercise all rights available to them to give effect to the terms of this Agreement to the extent permissible under the Applicable Laws and to take such reasonable steps to amend the Articles of Incorporation as soon as practicable to the extent necessary to remove any such conflict or inconsistency.

 

Section 2.3   Maintenance of Joint Venture Company .  The JV Parties shall use best efforts to cause the Board of Directors, or officers of the Joint Venture Company, to make or cause to be made, from time to time, filings and applications to the relevant Governmental Entities in the ROC to amend any registration, license or permit of the Joint Venture Company as the Board of Directors reasonably considers necessary or appropriate under the Applicable Laws so as to ensure (a) the continuation of the Joint Venture Company as a company-limited-by-shares under the laws of the ROC and (b) compliance with the terms of this Agreement.

 

Section 2.4   Governmental Approvals .  In the event that either JV Party takes or desires to take any action contemplated by this Agreement that could reasonably be expected to result in an event or transaction, including the purchase by either JV Party of Shares pursuant to Section 9.3, 12.3, 12.6 or 13.1, which event or transaction, as to each of the foregoing, would require either JV Party to make a filing, notification or any other required or requested submission under antitrust, competition, foreign investment, company or fair trade law (any such event or transaction, a “ Filing Event ” and any such filing, notification, or any such other required or requested submission, a “ Filing ” and any such law, a “ Regulatory Law ”), then:

 

(a)   the JV Party taking such action, in addition to complying with any other applicable notice provisions under this Agreement, shall promptly notify the other JV Party of such Filing Event, which notification shall include an indication that Filings under the Regulatory Law will be required;

 

(b)   notwithstanding any provision to the contrary in this Agreement, a Filing Event may not occur or close until after any applicable waiting period (including any extension thereof) under the Regulatory Law, as applicable to such Filing Event, shall have

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expired or been terminated, and all approvals under regulatory Filings in any jurisdiction that shall be necessary for such Filing Event to occur or close shall have been obtained, and any applicable deadline for the occurrence or closing of such Filing Event contained in this Agreement shall be delayed, so long as both JV Parties are proceeding diligently in accordance with this Section 2.4 to seek any such expiration, termination or approval, and so long as there are no other outstanding conditions preventing the occurrence or closing of the Filing Event;

 

(c)   the JV Parties shall, and shall cause any of their relevant Affiliates to:

 

(i)   as promptly as practicable, make their respective Filings under the applicable Regulatory Law;

 

(ii)   promptly respond to any requests for additional information from the applicable Governmental Entity;

 

(iii)   subject to applicable Regulatory Laws, use commercially reasonable efforts to cooperate with each other in the preparation of, and coordinate, such Filings (including the exchange of drafts between each party’s outside counsel) so as to reduce the length of any review periods;

 

(iv)   subject to applicable Regulatory Laws, cooperate and use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary under Regulatory Law in connection with such Filing Event, including using commercially reasonable efforts to provide information, obtain necessary exemptions, rulings, consents, clearances, authorizations, approvals and waivers, and effect necessary registrations and filings;

 

(v)   subject to applicable Regulatory Laws, use their commercially reasonable efforts to (a) take actions that are necessary to prevent the applicable Governmental Entity from filing an action with a court or Governmental Entity that, if the Governmental Entity prevailed, would restrict, enjoin, prohibit or otherwise prevent or materially delay the consummation of the Filing Event, including an action by any such Governmental Entity seeking a requirement to (i) sell, license or otherwise dispose of, or hold separate and agree to sell or otherwise dispose of, assets, categories of assets or businesses of either JV Party, the Joint Venture Company, or any of their respective Subsidiaries; (ii) terminate existing relationships and contractual rights and obligations of either JV Party, the Joint Venture Company or any of their respective Subsidiaries; (iii) terminate any relevant joint venture or other arrangement; or (iv) effectuate any other change or restructuring of either JV Party or the Joint Venture Company (as to each of the foregoing, a “ Divestiture Action ”), and (b) contest and resist any action, including any legislative, administrative or judicial action, and to have vacated, lifted, reversed or overturned any order that restricts, enjoins, prohibits or otherwise prevents or materially delays the occurrence or closing of such Filing Event; and

 

(vi)   subject to applicable Regulatory Laws, prior to the making or submission of any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal by or on behalf of either JV Party in connection with proceedings under or relating to

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the applicable Regulatory Law, consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals, and provide one another with copies of all material communications from and filings with, any Governmental Entities in connection with any Filing Event;

 

(d)   notwithstanding anything to the contrary in this Section 2.4, nothing in this Section 2.4 shall require either JV Party or its respective Affiliates, or the Joint Venture Company, to take any Divestiture Action; and

 

(e)   if the Filing Event is prevented from occurring or closing as a result of any applicable Regulatory Laws, after exhausting all efforts required under this Section 2.4 to obtain the necessary approval of any applicable Governmental Entity, then the JV Parties shall negotiate in good faith to agree upon an alternative event or transaction that would be permissible under applicable Regulatory Laws, and would approximate, as closely as possible, the intent and contemplated effect of the original Filing Event.

 

ARTICLE 3

 

CAPITALIZATION; CONTRIBUTION OF CAPITAL

 

Section 3.1   Authorized Capital .  In accordance with Section 6.5, the JV Parties shall use best efforts to cause the authorized capital of the Joint Venture Company to be amended from time to time, as may be necessary or desirable to consummate the transactions contemplated herein and in accordance with the Applicable Laws of the ROC.

 

Section 3.2   Capital Contributions .

 

(a)   No Obligation .  Unless otherwise agreed by the JV Parties in writing, neither JV Party shall be obligated to make any contribution of capital to the Joint Venture Company.

 

(b)   Future Cash Requirements .  Until the second anniversary of the Closing, the JV Parties shall use commercially reasonable efforts consistent with their fiduciary duties to the Joint Venture Company, to cause the Joint Venture Company to fund future cash requirements through cash flow generated by operations of the Joint Venture Company or external debt financing rather than the issuance of Shares or other equity or equity-linked securities of the Joint Venture Company.

 

Section 3.3   Unilateral Purchase of Shares .  Except as otherwise provided herein, MNL shall not, and shall not permit Micron or its Subsidiaries to, and NTC shall not, and shall not permit its Subsidiaries to, directly or indirectly acquire Shares or any other equity-linked securities of the Joint Venture Company from any Person other than the Joint Venture Company, without the prior written consent of the other JV Party.  MNL and NTC shall use their respective best efforts to prevent the Joint Venture Company from issuing Shares or any other equity-linked security of the Joint Venture Company, directly or indirectly, to an Affiliate of MNL or NTC without the prior written consent of both JV Parties.  If an Affiliate of MNL or of NTC acquires Shares or any other equity-linked security of the Joint Venture Company, whether from the Joint

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NTC/MICRON CONFIDENTIAL

 

Venture Company or otherwise (except as a result of a Permitted Transfer as contemplated by Section 9.2), the JV Parties shall, notwithstanding anything to the contrary in Sections 5.1(b) or (c), use their respective commercially reasonable efforts to cause the directors on the Board of Directors to be allocated between them, consistent with the principles set forth in Sections 5.1(b) and (c), as if the Shares or equity-linked securities owned by such Affiliates were owned one half by MNL and one half by NTC (and treating, for purposes of this sentence, any director whose election was controlled by an Affiliate of a JV Party as being a director designated by such JV Party).  Notwithstanding the foregoing, if the JV Parties fail to achieve the foregoing result after using such commercially reasonable efforts, no JV Party shall be in breach of this section or have any liability for such failure.

 

ARTICLE 4

 

BANK LOANS

 

If the Board of Directors shall at any time determine that there is a need for the Joint Venture Company to obtain external financing, the JV Parties will assist the Joint Venture Company to seek and obtain commercial loans or other financing arrangements from banks and other financial institutions on competitive market terms and otherwise as the Joint Venture Company may reasonably require.  None of the JV Parties (or any of their representatives) shall be obligated under this Agreement or otherwise to provide any guarantee or security for any such loans in favor of the Joint Venture Company, unless specifically agreed in writing by such JV Party (or its duly authorized representative).

 

ARTICLE 5

 

MANAGEMENT OF THE JOINT VENTURE COMPANY

 

Section 5.1   Board of Directors .

 

(a)   Power and Authority .  The JV Parties shall use best efforts to cause the Board of Directors to be responsible for the overall management of the business, affairs and operations of the Joint Venture Company.  The JV Parties shall use best efforts to cause the Board of Directors to have all the rights and powers given to it under the Articles of Incorporation and the Applicable Laws of the ROC, including without limitation, the ROC Company Law.

 

(b)   Number of Directors .  The JV Parties shall use best efforts to cause the Articles of Incorporation to provide for the Joint Venture Company to have a Board of Directors consisting of twelve (12) directors (provided that the JV Parties shall use best efforts to reduce such number for each director withdrawn in accordance with Section 5.1(b)(iv)).  The JV Parties shall use best efforts to cause the directors to be designated and elected as follows (subject, and giving effect, to any prior withdraw of one or more directors in accordance with Section 5.1(b)(iv)):

 

[***].

 

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NTC/MICRON CONFIDENTIAL

(c)   Agreement to Vote .

 

 

(i)   The JV Parties agree to vote, in any meeting of the shareholders where directors are elected, in a coordinated manner, to elect all of the Persons designated by the JV Parties in accordance with Section 5.1(b) above.

 

(ii)   If for any reason the JV Parties shall be unable to elect twelve (12) Persons (or such lesser number of Persons as is applicable after taking into account the application of Section 5.1(b)(iv)) to be their representatives to serve as directors pursuant to Section 5.1(b), the JV Parties shall vote, in a coordinated manner, to elect as many of such Persons as possible, consistent with the principles set forth in Section 5.1.

 

(d)   Removal and Replacement .  Any of the representatives serving as directors on the Board of Directors may be removed or replaced for any reason by the JV Party that designated him or her.  If any such representative serving on the Board of Directors is so removed or replaced or otherwise ceases to serve as a director on the Board of Directors, the JV Party that designated such representative shall be entitled to designate another Person to fill such vacancy, and the JV Parties shall use best efforts to have such replacement elected as a director.

 

(e)   Compensation .  The directors, except for the independent directors, if any, shall not receive any compensation for serving as such, although the Board of Directors may authorize the reimbursement of expenses reasonably incurred in connection with the performance of their duties.

 

(f)   Meetings of the Board of Directors; Notice .  The JV Parties shall use best efforts to cause or affect the following:

 

(i)   The Board of Directors shall meet from time to time but at least once per Fiscal Quarter in Taiwan (or such other place as the Board of Directors may decide) by not less than fourteen (14) days notice in writing.  Emergency meetings of the Board of Directors may be convened from time to time by the Chairman, or the Vice-Chairman pursuant to Section 5.2(c), by not less than two (2) Business Days notice in writing.

 

(ii)   A notice of a meeting of the Board of Directors shall contain the time, date, location and agenda for such meeting.  The presence of any director at a meeting (including attendance by means of video conference) shall constitute a waiver of notice of the meeting with respect to such director.

 

(iii)   The Board of Directors shall cause written minutes to be prepared of all actions, determinations and resolutions taken by the Board of Directors and a copy thereof sent to each director and supervisor of the Joint Venture Company within twenty (20) days of each meeting.

 

(g)   Proxy and Video Conference .  The JV Parties shall use best efforts to cause the Joint Venture Company to allow that:  (i) in any case where a director cannot attend a meeting of the Board of


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