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

EXHIBIT 10.91

 

SECOND AMENDED AND RESTATED

TECHNOLOGY TRANSFER AND LICENSE AGREEMENT

 

 

 

This SECOND AMENDED AND RESTATED TECHNOLOGY TRANSFER AND LICENSE AGREEMENT (this “ Agreement ”), is made and entered into as of this 9th day of April, 2010 (“ Amendment Date ”), by and between Micron Technology, Inc, a Delaware corporation (“ Micron ”), and Nanya Technology Corporation ( 南亞科技股份有限公司 ), 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 currently designs and manufactures Stack DRAM Products (as defined herein) and develops Process Technology (as defined herein) therefor. NTC and Micron desire to engage in joint development and/or optimization of Process Technology for process nodes of 68 nm and 50nm and joint development of Stack DRAM Designs (as defined herein) for Stack DRAM Products to be manufactured on such process nodes (as the Parties may agree in the JDP Agreement, as defined herein) [***] as the Parties may agree in the JDP-CSA Agreement (as defined herein).

 

B.           To effectuate their desires contemporaneously with their formation of their joint venture MeiYa Technology Corporation, a company limited by shares organized under the laws of the Republic of China (“ MeiYa ”), Micron licensed NTC under Background IP for the design, development and manufacture of certain Stack DRAM Products pursuant to that certain Technology Transfer and License Agreement between Micron and NTC dated April 21, 2008 (“ Original Agreement ”).  Pursuant to the Original Agreement, Micron and NTC have also transferred each other Foundational Know-How and licensed each other thereunder for the design, development and manufacture of certain Stack DRAM Products.

 

C.           NTC and an Affiliate of Micron became parties to that certain Joint Venture Agreement dated as of November 26, 2008 involving the ownership and operations of Inotera Memories, Inc., a company limited by shares under the laws of the Republic of China (“ IMI ”), and in connection therewith combined their ownership and operations of MeiYa with that of IMI such that MeiYa ceased to exist.

 

D.           The Parties amended and restated the Original Agreement on November 26, 2008, to account for the transactions contemplated by the Joint Venture Documents (as defined below) related to IMI upon the terms and conditions set forth in that amendment (the “ First Amended Agreement ”).

 

E.           The Parties now desire to amend and restate the First Amended Agreement upon the terms and conditions set forth herein.

 

 

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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 ” [***]

 

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.

 

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

 

Background IP ” means [***]

 

BEOL Costs ” means [***]

 

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.

 

Closing ” means June 6, 2008, the date of closing of formation of MeiYa.

 

“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.

 

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

 

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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.

 

Design Qualification ” means [***]

 

“Design SOW” means [***]

 

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 ” means April 21, 2008, the effective date of the Original Agreement.

 

“Existing Entity” means [***]

 

First Amended Agreement ” has the meaning set forth in the Recitals 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).

 

Foundational Know-How ” means, with respect to each Party,  [***]

 

Foundry Customer ” means a Third Party customer for Stack DRAM Products for which [***]

 

Foundry Customer Adjusted Revenues ” means [***]

 

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Foundry Customer Products ” means  [***]

 

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.

 

Gross Revenues ” 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.

 

IMI ” has the meaning set forth in the Recitals to this Agreement.

 

“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 Agreement ” means that certain Amended and Restated Joint Development Program Agreement by and between Micron and NTC effective as of November 26, 2008.

 

JDP-CSA Agreement ” means that certain Joint Development Program and Cost Sharing Agreement by and between Micron and NTC effective as of the Amendment Date.

 

JDP Committee ” means the committee formed and operated by Micron and NTC to govern the performance of the Parties under the JDP Agreement or the JDP-CSA 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 Agree


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