EXHIBIT
10.58
[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT
Micron NTC MeiYa CONFIDENTIAL
TECHNOLOGY TRANSFER AGREEMENT
This
TECHNOLOGY
TRANSFER AGREEMENT (this “ Agreement
”), is made and entered into as of this 13th day of
May, 2008 (“ Effective Date
”), by and among Nanya Technology Corporation (
Nanya Technology
Corporation [Translation from Chinese] ), a company
incorporated under the laws of the Republic of China (“
NTC
”), Micron Technology, Inc, a Delaware corporation
(“ Micron ”),
and MeiYa Technology Corporation ( MeiYa Technology
Corporation [Translation from Chinese] ), a
company-limited-by-shares incorporated under the laws of the
Republic of China (“ Joint Venture
Company ”). (NTC, Micron and Joint
Venture Company 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, an Affiliate of Micron,
Micron Semiconductor B.V., a private limited liability company
organized under the laws of the Netherlands (“
MNL
”), and NTC are contemporaneously herewith forming the
Joint Venture Company to manufacture Stack DRAM Products (as
defined hereinafter) for supply and delivery solely to Micron
and NTC.
B. The
Parties desire to outline the procedures under which Micron
and NTC will transfer certain technology related to Process
Nodes (as defined hereafter) to the Joint Venture Company that
will be used by the Joint Venture Company to manufacture Stack
DRAM Products for Micron and NTC.
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
.
“
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.
“
Assigned
Employees ” shall, with respect to Micron, have
the meaning set forth in the Micron Assigned Employee
Agreement by and between Micron and the Joint Venture Company
dated as of the date of Closing and identified on Schedule
2.4 of the Master Agreement Disclosure Letter and, with
respect to NTC, have the meaning set forth in the NTC Assigned
Employee Agreement by and between NTC and the Joint Venture
Company dated as of the date of Closing and identified on
Schedule
2.3 of the Master Agreement Disclosure
Letter.
“
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.
“
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.
“
Confidential
Information ” means that information described in
Section
5.1 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.
“
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).
“
GAAP
” means, with respect to Micron, United States generally
accepted accounting principles, and with respect to NTC and
the Joint Venture Company, 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.
“
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
Agreement ” means that certain Joint Development
Program Agreement by and between Micron and
NTC effective as of the Effective Date referred to
on Schedule
2.1 of the Master Agreement Disclosure
Letter.
“
JDP
Co-Chairman ” and “ JDP Co-Chairmen
” means the JDP Co-Chairman or JDP Co-Chairmen,
respectively, appointed by Micron or NTC under the JDP
Agreement, as such individuals are communicated to the Joint
Venture Company from time to time.
“
JDP
Committee ” means the committee formed and
operated by Micron and NTC to govern the performance of the
Parties under the JDP Agreement.
“
JDP
Design ” means any Stack DRAM Design resulting
from the research and development activities of the Parties
pursuant to the JDP Agreement.
“JDP Inventions” means 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 the JDP Agreement.
“
JDP Process
Node ” means any Primary Process Node or
Optimized Process Node resulting from the research and
development activities of the Parties pursuant the JDP
Agreement.
“
JDP Work
Product ” means [***].
“
Joint Venture
Company ” shall have the meaning set forth in the
preamble to this Agreement.
“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.
“
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
“
MNL
” shall have the meaning set forth in the Recitals to
this Agreement.
“
Mutual
Confidentiality Agreement ” means (i) as of the
Effective Date, that certain Mutual Confidentiality Agreement
among NTC, Micron and MNL referred to on Schedule
2.1 of the Master Agreement Disclosure Letter, and (ii)
as of the Effective Date or thereafter, 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.
“Optimized Process Node” means
[***].
“
NTC
” shall have the meaning set forth in the preamble to
this Agreement.
“
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
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.
“
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 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 to the JDP Agreement as applied to Stack DRAM
Products or Stack DRAM Modules.
“
Recoverable
Taxes ”
shall have the meaning set forth in Section
3.5(a).
“
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.
“
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 JDP Agreement and
that has been adopted by the JDP Committee pursuant to the
procedures set forth therein.
“
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 1
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.
“
Tax
” or “ Taxes
&rdqu
