Exhibit 10.155


 










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


 


INTEL/MICRON
CONFIDENTIAL


 


 




 





MASTER AGREEMENT



BY AND BETWEEN



MICRON TECHNOLOGY, INC.



AND



INTEL CORPORATION



NOVEMBER 18, 2005




 





 





















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS

  	
  1

  
	
  1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  CONTRACTS PRIOR TO CLOSING; CONTRIBUTION OF
  ASSETS

  	
  2

  
	
  2.1

  	
  Pre-Existing and Contemporaneously Executed
  Contracts Between the Parties

  	
  2

  
	
  2.2

  	
  Contracts to be Entered into by the Parties

  	
  2

  
	
  2.3

  	
  Contracts to be Entered into by Intel and
  the Joint Venture Company

  	
  2

  
	
  2.4

  	
  Contracts to be Entered into by Micron and
  the Joint Venture Company

  	
  2

  
	
  2.5

  	
  Contracts to be Entered into by the Parties
  and the Joint Venture Company

  	
  2

  
	
  2.6

  	
  Contribution of Assets

  	
  2

  
	
  2.7

  	
  Assumption of Liabilities

  	
  2

  
	
  2.8

  	
  Certain Prorations

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  REPRESENTATIONS AND WARRANTIES

  	
  3

  
	
  3.1

  	
  Intel Representations

  	
  3

  
	
  3.2

  	
  Micron Representations

  	
  4

  
	
  3.3

  	
  Reliance by the Joint Venture Company

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  COVENANTS

  	
  10

  
	
  4.1

  	
  Exclusive Dealing

  	
  10

  
	
  4.2

  	
  Reasonable Efforts

  	
  11

  
	
  4.3

  	
  Governmental Filings

  	
  11

  
	
  4.4

  	
  Access to Properties and Records

  	
  11

  
	
  4.5

  	
  Further Assurances

  	
  12

  
	
  4.6

  	
  Transfer Taxes

  	
  12

  
	
  4.7

  	
  Confidentiality

  	
  12

  
	
  4.8

  	
  Press Releases

  	
  12

  
	
  4.9

  	
  Legally Compelled Disclosures

  	
  12

  
	
  4.10

  	
  Ownership Interest

  	
  13

  
	
  4.11

  	
  Continuity and Maintenance of Operations

  	
  13

  
	
  4.12

  	
  Certain Deliveries and Notices

  	
  13

  
	
  4.13

  	
  Non-solicitation of Employees.

  	
  13

  
	
  4.14

  	
  Initial Business Plan

  	
  15

  
	
  4.15

  	
  Title

  	
  15

  
	
  4.16

  	
  Water Rights

  	
  15

  
	
  4.17

  	
  Completion of Work

  	
  15

  
	
  4.18

  	
  Tax Matters

  	
  15

  
	
  4.19

  	
  Supply Agreements

  	
  16

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  CLOSING

  	
  16

  
	
  5.1

  	
  Closing

  	
  16

  
	
  5.2

  	
  Conditions to the Obligations of the
  Parties

  	
  16

  
	
  5.3

  	
  Conditions to the Obligations of Intel

  	
  17

  



 


i





















 


	
  5.4

  	
  Conditions to Obligations of Micron

  	
  18

  
	
  5.5

  	
  Closing Deliverables of Micron

  	
  19

  
	
  5.6

  	
  Closing Deliverables of Intel

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  INDEMNIFICATION

  	
  20

  
	
  6.1

  	
  Survival

  	
  20

  
	
  6.2

  	
  Indemnification

  	
  20

  
	
  6.3

  	
  Procedures

  	
  21

  
	
  6.4

  	
  Specific Performance

  	
  22

  
	
  6.5

  	
  Treatment of Indemnification Payments;
  Insurance Recoveries

  	
  22

  
	
  6.6

  	
  Certain Additional Procedures

  	
  23

  
	
  6.7

  	
  Remedies

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  TERMINATION

  	
  23

  
	
  7.1

  	
  Termination

  	
  23

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  MISCELLANEOUS

  	
  24

  
	
  8.1

  	
  Limitation of Liability

  	
  24

  
	
  8.2

  	
  Exclusions and Mitigation

  	
  24

  
	
  8.3

  	
  Notices

  	
  25

  
	
  8.4

  	
  Waiver

  	
  25

  
	
  8.5

  	
  Assignment

  	
  25

  
	
  8.6

  	
  Third Party Rights

  	
  26

  
	
  8.7

  	
  Choice of Law

  	
  26

  
	
  8.8

  	
  Jurisdiction; Venue

  	
  26

  
	
  8.9

  	
  Dispute Resolution

  	
  26

  
	
  8.10

  	
  Headings

  	
  27

  
	
  8.11

  	
  Entire Agreement

  	
  27

  
	
  8.12

  	
  Severability

  	
  27

  
	
  8.13

  	
  Counterparts

  	
  27

  
	
  8.14

  	
  Expenses

  	
  27

  
	
  8.15

  	
  Certain Interpretive Matters

  	
  27

  
	
   

  	
   

  	
   

  
	
  Appendix A

  	
  Definitions

  	
   

  



 


ii





















 


MASTER AGREEMENT


 


This MASTER AGREEMENT (together with the Appendix hereto, this “Agreement”), dated as of the 18th day of November, 2005, is
entered into by and between Intel Corporation, a Delaware corporation (“Intel”), and Micron Technology, Inc., a Delaware
corporation (“Micron”).


 


RECITALS


 


A.                                   Micron
currently designs, manufactures and produces NAND Flash Memory Products for use
in various consumer electronics and other end applications.


 


B.                                     The
manufacture of NAND Flash Memory Products requires the investment of
significant financial resources to acquire and maintain leading-edge
technology, manufacturing equipment and facilities.


 


C.                                     Micron
desires to expand its portfolio of NAND Flash Memory Products by producing a
greater variety of such products than it presently has the ability to offer and
by increasing the volume of such products that it can offer.


 


D.                                    Intel
desires to enter the marketplace for NAND Flash Memory Products by obtaining
rights to design, manufacture and sell NAND Flash Memory Products that are
manufactured pursuant to designs owned by Intel.


 


E.                                      To
effectuate their desires, Intel and Micron (the “Parties”)
desire to combine certain resources by making contributions to the capital of
IM Flash Technologies, LLC, a Delaware limited liability company (the “Joint Venture Company”), for the collaborative manufacture
(including by subcontract to Micron) and sale to the Parties of leading-edge
NAND Flash Memory Products.


 


F.                                      The
Parties desire to jointly invest in the Joint Venture Company to enable it to
build and operate manufacturing facilities.


 


G.                                     The
Parties desire to enter into various agreements with the Joint Venture Company,
and with each other, to set forth the ongoing governance and operating
relationships among the Parties and the Joint Venture Company relating to the
business of the Joint Venture Company, all as contemplated by this Agreement.


 


NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties intending to be legally bound do
hereby agree as follows:


 


ARTICLE 1.

DEFINITIONS


 


1.1                                 Definitions.  Capitalized terms used in this Agreement
shall have the respective meanings ascribed to such terms in Appendix A
to this Agreement.


 





















 


ARTICLE 2.

CONTRACTS PRIOR TO CLOSING; CONTRIBUTION OF ASSETS


 


2.1                                 Pre-Existing and
Contemporaneously Executed Contracts Between the Parties.  On or prior to the date of this Agreement,
the Parties have entered into the agreements listed on Schedule 2.1
of the Master Agreement Disclosure Letter (the “Pre-Existing
and Contemporaneously Executed Agreements”).


 


2.2                                 Contracts to be
Entered into by the Parties.  At the
Closing, the Parties will enter into the agreements listed on Schedule 2.2
of the Master Agreement Disclosure Letter (the “Bilateral
Agreements”).


 


2.3                                 Contracts to be
Entered into by Intel and the Joint Venture Company.  At the Closing, Intel will enter into, and
the Parties will cause the Joint Venture Company to enter into, the agreements
listed on Schedule 2.3 of the Master Agreement Disclosure Letter
(the “Intel Agreements”).


 


2.4                                 Contracts to be
Entered into by Micron and the Joint Venture Company.  At the Closing, Micron will enter into, and
the Parties will cause the Joint Venture Company to enter into, the agreements
listed on Schedule 2.4 of the Master Agreement Disclosure Letter
(the “Micron Agreements”).


 


2.5                                 Contracts to be
Entered into by the Parties and the Joint Venture Company.  At the Closing, the Parties will enter into,
and will cause the Joint Venture Company to enter into, the agreements listed
on Schedule 2.5 of the Master Agreement Disclosure Letter (the “Trilateral Agreements”).


 


2.6                                 Contribution of
Assets.  At the Closing, upon the
terms and subject to the conditions set forth in this Agreement, and in
reliance upon the representations, warranties and agreements set forth herein:


 


(A)                              Intel Contribution.  Intel shall contribute to the Joint Venture
Company and the Joint Venture Company shall accept from Intel the Intel
contribution specified in Appendix D to the Operating Agreement.


 


(B)                                Micron Contribution.  Micron shall contribute to the Joint Venture
Company the Micron contribution specified in Appendix D to the
Operating Agreement, including the contribution of the assets (the “Micron Contributed Assets”) identified in such Appendix D
by conveyance, transfer, assignment and delivery to the Joint Venture Company
of such Micron Contributed Assets, and the Joint Venture Company shall accept
from Micron the Micron contribution specified in Appendix D to the
Operating Agreement.


 


2.7                                 Assumption of
Liabilities.  The Joint Venture Company
shall not assume any liabilities, debts, obligations or duties of either Party
of any kind or nature whatsoever, except to the extent such liabilities, debts,
obligations or duties are expressly assumed by the Joint Venture Company under
this Agreement or another Joint Venture Document.


 


2





















 


2.8                                 Certain Prorations.


 


(A)                              Micron shall, or shall
(if applicable) cause its subsidiaries to, pay minimum or basic rent under the
personal property, real property and other equipment leases being assigned to
the Joint Venture Company by Micron that are included in the Micron Contributed
Assets through the end of the calendar month in which the Closing Date occurs,
and the Joint Venture Company shall reimburse Micron for such rent accrued
commencing with the Closing Date through the end of such month as part of the
post-Closing proration.


 


(B)                                On the Closing Date, or
as promptly as practicable following the Closing Date, but in no event later
than sixty (60) calendar days thereafter, the water, gas, electricity and other
utilities, common area maintenance reimbursements to lessors, local business or
other transferable license or permit fees and other similar periodic charges
payable with respect to the Micron Contributed Assets shall be prorated between
Micron and the Joint Venture Company, with Micron bearing such costs and
expenses attributable to the period prior to and including the Closing Date,
and the Joint Venture Company bearing such costs and expenses attributable to
the period after the Closing Date.


 


ARTICLE 3.

REPRESENTATIONS AND WARRANTIES


 


3.1                                 Intel
Representations.  Intel represents
and warrants to Micron as follows:


 


(A)                              Corporate Existence
and Power.  Intel is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware.  Intel has the
requisite corporate power and authority to own, lease and operate its
properties that it currently owns, leases or operates and to carry on its
business as now conducted.  Intel is duly
qualified to do business and is in good standing in each jurisdiction in which
such qualification is required, except where the failure to be so qualified or
in good standing would not be reasonably expected to have a Material Adverse
Effect.


 


(B)                                Authorization;
Enforceability.  Intel has the
requisite corporate power and authority to enter into this Agreement and the
Joint Venture Documents to which it is a party and to perform its obligations
hereunder and thereunder.  The execution
and delivery by Intel of this Agreement and the Joint Venture Documents to
which it is a party and the performance by Intel of its obligations
contemplated hereby and thereby have been duly authorized by Intel and do not
violate the terms of the certificate of incorporation or bylaws of Intel.  This Agreement has been, and as of the
Closing the Joint Venture Documents to which Intel is a party will have been,
duly executed and delivered by Intel, and this Agreement constitutes, and as of
the Closing each of the Joint Venture Documents to which Intel is a party will
constitute, the valid and binding agreement of Intel, enforceable against Intel
in accordance with their respective terms, except to the extent that their
enforceability may be subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting the enforcement of
creditors’ rights generally.


 


(C)                                Governmental
Authorization.  Except as disclosed
in Schedule 3.1(C) of the Master Agreement Disclosure Letter,
the execution, delivery and performance by Intel of this 


 


3





















 


Agreement and the Joint Venture Documents to which it is a party will
not require any action by or in respect of, or filing with, any Governmental
Entity.


 


(D)                               Non-Contravention;
Consents.  Except as disclosed in Schedule 3.1(D) of
the Master Agreement Disclosure Letter, the execution, delivery and performance
by Intel of this Agreement and the Joint Venture Documents to which it is a
party do not and will not (1) violate, in any material respect, any
Applicable Law or Order, (2) require any filing with, or permit, consent
or approval of, or the giving of any notice to (including under any right of
first refusal or similar provision), any Person (including filings, consents or
approvals required under any licenses or leases to which Intel or any of its
subsidiaries is a party), (3) result in a violation or breach of, conflict
with, constitute (with or without due notice or lapse of time or both) a
default under, or give rise to any right of termination, cancellation or
acceleration of any charter document of or any right or obligation of Intel or
any of its subsidiaries or to a loss of any benefit to which Intel or any of
its subsidiaries is entitled under, any agreement or other instrument binding
upon Intel or any of its subsidiaries or that will be binding after the Closing
on the Joint Venture Company, or (4) result in the creation or imposition
of any Lien on any asset of Intel, any of its subsidiaries or the Joint Venture
Company that, in the case of clauses (3) or (4), would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(E)                                 Litigation.  Except as disclosed in Schedule 3.1(E) of
the Master Agreement Disclosure Letter or as previously disclosed in Intel’s
public filings pursuant to the Exchange Act, there is no action, suit,
arbitration or administrative or other proceeding or investigation pending or,
to Intel’s knowledge, threatened, against or affecting Intel or its subsidiaries
or any of their respective properties that, if determined or resolved adversely
to Intel or its subsidiaries, would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


(F)                                 Brokerage.  Intel has not dealt with any finder, broker,
investment banker or financial advisor in connection with any of the
transactions contemplated by this Agreement or the negotiations looking toward
the consummation of such transactions, and no finder, broker, investment banker
or financial advisor is entitled to any brokerage, finders’ or other fees or
commissions in connection with this Agreement or the negotiation looking toward
the consummation of such transactions, based upon arrangements made by or on
behalf of Intel.


 


3.2                                 Micron
Representations.  Micron represents
and warrants to Intel as follows:


 


(A)                              Corporate Existence
and Power.  Micron is a corporation
duly incorporated, validly existing and in good standing under the laws of the
State of Delaware.  Micron has the requisite
corporate power and authority to own, lease and operate its properties that it
currently owns, leases or operates and to carry on its business as now
conducted.  Micron is duly qualified to
do business and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to be so qualified or in
good standing would not reasonably be expected to have a Material Adverse
Effect.


 


(B)                                Authorization;
Enforceability.  Micron has the
requisite corporate power and authority to enter into this Agreement and the
Joint Venture Documents to which it is a party and to perform its obligations
hereunder and thereunder.  The execution
and delivery by Micron of


 


4





















 


this Agreement
and the Joint Venture Documents to which it is a party and the performance by
Micron of its obligations contemplated hereby and thereby have been duly
authorized by Micron and do not violate the terms of the certificate of
incorporation or bylaws of Micron.  This
Agreement has been, and as of the Closing the Joint Venture Documents to which
Micron is a party will have been, duly executed and delivered by Micron, and
this Agreement constitutes, and as of the Closing each of the Joint Venture
Documents to which Micron is a party will constitute, the valid and binding
agreement of Micron, enforceable against Micron in accordance with their
respective terms, except to the extent that their enforceability may be subject
to applicable bankruptcy, insolvency, reorganization, moratorium and similar
laws affecting the enforcement of creditors’ rights generally.


 


(C)                                Governmental
Authorization.  Except as disclosed
in Schedule 3.2(C) of the Master Agreement Disclosure Letter,
the execution, delivery and performance by Micron of this Agreement and the
Joint Venture Documents to which it is a party will not require any action by
or in respect of, or filing with, any Governmental Entity.


 


(D)                               Non-Contravention;
Consents.  Except as disclosed in Schedule 3.2(D) of
the Master Agreement Disclosure Letter, the execution, delivery and performance
by Micron of this Agreement and the Joint Venture Documents to which it is a
party do not and will not (1) violate, in any material respect, any
Applicable Law or Order, (2) require any filing with, or permit, consent
or approval of, or the giving of any notice to (including under any right of
first refusal or similar provision), any Person (including filings, consents or
approvals required under any licenses or leases to which Micron or any of its
subsidiaries is a party), (3) result in a violation or breach of, conflict
with, constitute (with or without due notice or lapse of time or both) a
default under, or give rise to any right of termination, cancellation or
acceleration of any charter document of or any right or obligation of Micron or
any of its subsidiaries or to a loss of any benefit to which Micron or any of
its subsidiaries is entitled under, any agreement or other instrument binding
upon Micron or any of its subsidiaries or that will be binding after the
Closing on the Joint Venture Company, or (4) result in the creation or
imposition of any Lien on any asset of Micron, any of its subsidiaries or the
Joint Venture Company that, in the case of clauses (3) or (4) would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.


 


(E)                                 Litigation.  Except as disclosed in Schedule 3.2(E) of
the Master Agreement Disclosure Letter or as previously disclosed in Micron’s
public filings pursuant to the Exchange Act, there is no action, suit,
arbitration or administrative or other proceeding or investigation pending or,
to Micron’s knowledge, threatened, against or affecting (1) the
Contributed Real Property or the Other Contributed Property; or (2) Micron
or its subsidiaries or any of their respective properties that, if determined
or resolved adversely to Micron or its subsidiaries, would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(F)                                 Real Property
Contracts.


 


(1)                                  Schedule 3.2(F)(1) of
the Master Agreement Disclosure Letter lists each of the following contracts
and agreements of Micron that are in effect, or that are claimed by Micron as
being in effect, with respect to any of the Contributed Real Property at the
date of this


 


5





















 


Agreement
(collectively, the “Real  Property  Contracts”):  (a) each instrument creating a Lien on
any of the Contributed Real Property; (b) each policy of fire, liability
and other forms of insurance (excluding title insurance, errors and omissions
insurance and directors and officers insurance) held by and/or covering the
Lehi Site; and (c) all contracts and agreements with any Governmental
Entity, to which Micron is a party, relating to the Lehi Site.


 


(2)                                  Except as disclosed
on Schedule 3.2(F)(2) of the Master Agreement Disclosure
Letter, to Micron’s knowledge, each Real Property Contract is in full force and
effect according to its terms.


 


(3)                                  Except as disclosed
on Schedule 3.2(F)(3) of the Master Agreement Disclosure
Letter, Micron is not in breach, or default under, any Real Property
Contract.  To Micron’s knowledge, no
other party to any Real Property Contract is in breach thereof or default
thereunder.  To Micron’s knowledge, no
event or condition has occurred or exists which with the giving of notice or
passage of time or both may become a default under any of the Real Property
Contracts.


 


(G)                                Real Property.


 


(1)                                  Except as described
in Schedule 3.2(G)(1) of the Master Agreement Disclosure
Letter, there is no violation of any Applicable Law (including, without
limitation, any building, planning or zoning law, but excluding any
Environmental Law that is addressed in Section 3.2(J)) relating to any of
the Contributed Real Property.  Micron
has received no written notice that any Governmental Entity has determined that
such violations currently exist.  In the
event Micron receives, prior to the Closing, notice of any such violations
affecting any of the Contributed Real Property prior to the Closing, Micron
shall promptly notify Intel thereof.


 


(2)                                  Micron has made
available to Intel true and complete copies of the documents identified in Schedule 3.2(G)(2) of
the Master Agreement Disclosure Letter, which include among others the
Municipal Services Agreements, certain audits prepared for or by Micron,
including  Phase I and Phase II reports,
and other specified documents listed in Schedule 3.2(G)(2) of
the Master Agreement Disclosure Letter relating to the Contributed Real
Property.


 


(3)                                  Except for the Liens
set forth on Schedule 3.2(G)(3) of the Master Agreement
Disclosure Letter (collectively, the “Permitted Liens”),
Micron is in peaceful and undisturbed possession of the Contributed Real
Property and there are no contractual restrictions that preclude or restrict
the use thereof for the purposes currently contemplated by the Joint Venture
Company.  Micron has received no notice
of any pending or, to the knowledge of Micron, threatened or contemplated action
by any Governmental Entity having the power of eminent domain, which reasonably
should be expected to result in any part of the Contributed Real Property being
taken by condemnation or conveyed in lieu thereof.


 


(4)                                  There are no material
adverse physical conditions affecting any of the Lehi Site, or any of the
facilities, buildings, structures, erections, improvements, fixtures, fixed
assets and personalty of a permanent nature annexed, affixed or attached to,
located on or forming part of any of the Lehi Site that would cause the Lehi
Site or such facilities, buildings,


 


6





















 


structures,
erections, improvements, fixtures, fixed assets and personalty to be unsuitable
for its respective current uses.


 


(5)                                  Micron owns fee
simple title to the Contributed Real Property free and clear of all Liens other
than Permitted Liens.  Micron has not
leased any parcel or any portion of any parcel of the Contributed Real Property
to any third party.  Micron has not
agreed to encumber any portion of the Contributed Real Property.  If Micron has granted a Lien in favor of any
lender upon any portion of the MTV Site, then, within fifteen (15) days of the
execution of this Agreement, Micron agrees to obtain a non-disturbance agreement
from such lender containing terms and conditions reasonably acceptable to
Intel.  No prior options or rights of
first refusal have been granted by Micron to any third parties to purchase or
lease any interest in the Contributed Real Property, or any part thereof, which
are effective as of the date hereof. 
Micron is not indebted to any contractor, laborer, mechanic,
materialman, architect or engineer for work, labor or services performed or
rendered, or for materials supplied or furnished, in connection with the Lehi
Site for which any person could claim a Lien against the Lehi Site, except as
set forth on Schedule 3.2(G)(5) of the Master Agreement
Disclosure Letter.


 


(6)                                  Except as set forth
on Schedule 3.2(G)(6) of the Master Agreement Disclosure
Letter, Micron has received no written notice of any dispute involving or
concerning the location of the boundary lines and corners of any of the
Contributed Real Property, and, to the knowledge of Micron, there are no
encroachments on any of the Contributed Real Property.


 


(7)                                  All of the personal property
listed on Schedule 3.2(G)(7) of the Master Agreement
Disclosure Letter, which Schedule 3.2(G)(7) may be modified
prior to Closing as mutually agreed to by the Parties, is, as of the date
hereof, and will be on the Closing Date, owned by Micron, free and clear of all
Liens, and located on the Contributed Real Property.


 


(8)                                  Schedule 3.2(G)(8) of
the Master Agreement Disclosure Letter accurately identifies the policies of
title insurance, and riders and endorsements, issued effective upon Micron’s
acquisition of fee simple title to the Contributed Real Property (the “Micron Title Insurance Policies”).  Micron has provided the Joint Venture Company
with true and complete copies of the Micron Title Insurance Policies.  To Micron’s knowledge, each of the Micron
Title Insurance Policies is, and as of the Closing will be, in full force and
effect according to its terms.


 


(H)                               Approvals,
Obligations, Permits and Licenses.


 


(1)                                  Schedule 3.2(H) of
the Master Agreement Disclosure Letter lists all material Governmental Entity
approvals, permits, licenses or contractual obligations relating to the Lehi
Site that will transfer to or be obtained by the Joint Venture Company.


 


(2)                                  To the knowledge of
Micron, it operates the Contributed Real Property with all required material
Governmental Entity approvals, permits and licenses, excluding Environmental
Permits (which are addressed by Section 3.2(J)), and, with respect to the
Contributed Real Property, is in compliance with all material terms and has
fulfilled, or is timely fulfilling, all material contractual obligations to any
Governmental Entity or its designee.


 


7





















 


(I)                                    Warranties and
Representations Respecting Water Rights and Water Supply System.


 


(1)                                  Micron is the sole record
and beneficial owner of the Water Rights and the Water System, which it owns
free and clear of Liens.


 


(2)                                  The Utah State
Division of Water Rights has approved non-use of Water Rights 55-8976 and 55-8981
until August 31, 2008.  The Utah Division of Water Rights has also
granted an extension of time for Change Application a19136 to August 31,
2006 within which to submit proof of beneficial use or request a further
extension of time.  Water Right No. 55-9159
(A70333) is a pending unapproved application to appropriate 6 cfs or 2,000 acre
feet of water for non-consumptive use. 
This application has been protested and is, as of the date of this
Agreement, awaiting an administrative hearing before the Utah State Engineer.


 


(3)                                  Micron has received
no notice from any third Person of any Lien on the Water Rights or the Water
Supply System.


 


(4)                                  Since January 1,
1990, to the knowledge of Micron, the Water Rights have been either
continuously, fully and beneficially used, or the subject of an application for
non-use approved by the Utah State Engineer, and Micron has received no notices
from any third party or Governmental Entity asserting any claim or position to
the contrary.


 


(J)                                   Environmental.


 


(1)                                  Except as set forth
on Schedule 3.2(J)(1) of the Master Agreement Disclosure
Letter, there have not been, since the time Micron or any of its Affiliates
have owned the respective Contributed Real Property, any unauthorized releases
of Hazardous Substances on or from the Contributed Real Property that would
constitute a Material Adverse Environmental Effect, regardless of whether such
spills or releases were reported to any Governmental Entity.


 


(2)                                  Except as set forth
on Schedule 3.2(J)(2) of the Master Agreement Disclosure
Letter, there have been no orders, judgments, injunctions, rulings, decrees,
directives, notices of violation or other decisions of any Governmental Entity
against or issued to Micron under or with respect to any Environmental Laws
pertaining to the Contributed Real Property during the lesser of (a) the
last five (5) years and (b) the time Micron or any of its Affiliates
owned the respective Contributed Real Property that would cause a Material
Adverse Environmental Effect; nor is there any pending or, to the knowledge of
Micron, threatened action, suit or proceeding, or, to the knowledge of Micron,
investigation, or inquiry by or before any Governmental Entity under any
Environmental Laws relating to any of the Contributed Real Property that would
cause a Material Adverse Environmental Effect nor, to the knowledge of Micron,
are there any existing grounds on which any such action, suit, investigation,
inquiry or proceeding could reasonably be commenced that would cause a Material
Adverse Environmental Effect.


 


(3)                                  Except as set forth
on Schedule 3.2(J)(3) of the Master Agreement Disclosure
Letter, all notices, permits, licenses or similar authorizations, if any,
required to be obtained or filed by Micron under any Environmental Laws
(collectively, “Environmental  Permits”)
with respect to any portion of the Contributed Real Property, including without
limitation, those relating to the treatment, storage, disposal or release of a
Hazardous Substance or solid waste into the environment or construction of
facilities, have been duly obtained or filed,


 


8





















 


except where
the failure to obtain or file would not cause a Material Adverse Environmental
Effect.  Micron is in material compliance
with the terms and conditions of all Environmental Permits with respect to the
Contributed Real Property, and all Environmental Permits with respect to the
Contributed Real Property were issued, to the knowledge of Micron, by a
Governmental Entity and have the force and effect of the laws under which they
were issued.


 


(4)                                  Micron is in
compliance with all Environmental Laws with respect to the Contributed Real
Property, except where such noncompliance would not have a Material Adverse
Environmental Effect.


 


(5)                                  Except as set forth
in Schedule 3.2(J)(5) of the Master Agreement Disclosure
Letter, Micron has not received any claim, order, notice, action, suit,
arbitration, or proceeding under Environmental Laws related to Hazardous
Substance generated at or from any of the Contributed Real Property that would
cause a Material Adverse Environmental Effect.


 


(K)                               The Joint Venture
Company.  Prior to Closing, the Joint
Venture Company will have been formed as a limited liability company, and
immediately prior to closing, the Joint Venture Company will be validly
existing and in good standing under the laws of the State of Delaware.


 


(L)                                 Capitalization of
the Joint Venture Company.  The Joint
Venture Company has not engaged in any operations, made any commitments or
acquired any assets prior to the Closing, except that, immediately prior to Closing,
Micron shall be the sole Member of, and shall hold all of the Interests in the
Joint Venture Company.  Except for the
Interest held by Micron immediately prior to Closing, and the Interests to be
held by Intel and Micron upon the Closing as contemplated by the Operating
Agreement, at Closing there will be no other securities of the Joint Venture
Company, including outstanding options, warrants, calls, subscriptions,
commitments or plans by the Joint Venture Company to issue any additional
Interests, to make any distributions to its Members or to purchase, redeem or
retire any outstanding Interest, nor will there be outstanding any securities
or obligations that are convertible into or exchangeable for any Interest or
other securities of the Joint Venture Company. 
Upon the Closing, each of Intel and Micron will acquire good and valid
title to its respective Interest in the Joint Venture Company, free and clear
of all Liens.


 


(M)                            Assigned Contracts.  The Assigned Contracts are listed on Schedule 3.2(M)
of the Master Agreement Disclosure Letter, which Schedule 3.2(M)
may be amended prior to Closing as agreed to by both Parties.  True and correct copies of each Assigned
Contract have been provided to Intel. 
Each Assigned Contract is a valid, binding and enforceable agreement of
Micron and, to the knowledge of Micron, the other parties thereto.  There has not occurred any default under any
Assigned Contract (other than Real Property Contracts, under which there has been
no default) on the part of Micron nor, to the knowledge of Micron, on the part
of the other parties thereto that would reasonably be expected to have a
Material Adverse Effect.  No event has
occurred which, with the giving of notice or the lapse of time, or both, would
constitute any default under any Assigned Contract (other than Real Property
Contracts) on the part of Micron nor, to the knowledge of Micron, on the part
of the other parties thereto that would reasonably be expected to have a
Material Adverse Effect.  Except as
indicated on Schedule 3.2(M) of the Master Agreement Disclosure
Letter, no consent of any party to any Assigned Contract is


 


9





















 


required in
order to (i) permit the execution, delivery or performance of this
Agreement, (ii) consummate of the transactions contemplated hereby, or (iii) sell,
transfer or deliver the Micron Contributed Assets.  The execution, delivery and performance of
this Agreement, the consummation of the transactions contemplated hereby, the
sale, transfer and delivery of the Micron Contributed Assets and the assumption
of the liabilities to be assumed by the Joint Venture Company will not result
in a breach of any of the terms and provisions of, or constitute a default
under, or conflict with, or result in a modification of, any Assigned Contract,
where such breach, default, conflict or modification would reasonably be
expected to have a Material Adverse Effect.


 


(N)                               Brokerage.  Micron has not dealt with any finder, broker,
investment banker or financial advisor in connection with any of the
transactions contemplated by this Agreement or the negotiations looking toward
the consummation of such transactions, and no finder, broker, investment banker
or financial advisor is entitled to any brokerage, finders’ or other fees or
commissions in connection with this Agreement or the negotiation looking toward
the consummation of such transactions, based upon arrangements made by or on
behalf of Micron.


 


(O)                               Contractual and
Governmental Obligations.  As of the
date immediately prior to Closing, Micron will be in compliance with all
Contractual Obligations with any third party or Governmental Entity, and of any
condition of any license, permit, consent or approval of a third party to the
extent that failure to be in compliance would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


(P)                                 Infrastructure.
Except as set forth on Schedule 3.2(P) of the Master Agreement
Disclosure Letter, all natural gas, electricity and water delivery
improvements, and all sewer and storm water facilities necessary to serve the
improvements as they currently exist on the Contributed Real Property have been
installed and are currently serving such improvements.


 


3.3                                 Reliance by the
Joint Venture Company.  The Parties
hereby agree that, to the extent any of the representations and warranties of
Intel and Micron set forth in Section 3.1 and Section 3.2,
respectively, relates to any Joint Venture Document to which the Joint Venture
Company is or shall be a party, such representations and warranties shall be
deemed to have been made to the Joint Venture Company; provided,
however, that (1) if the Joint
Venture Company pursues any cause of action against Micron for an alleged
breach of representation or warranty, and a court of final jurisdiction denies
the claim made by the Joint Venture Company, Intel shall reimburse the Joint
Venture Company for all costs associated with pursuing such action and (2) if
the Joint Venture Company pursues any cause of action against Intel for an
alleged breach of representation or warranty, and a court of final jurisdiction
denies the claim made by the Joint Venture Company, Micron shall reimburse the
Joint Venture Company for all costs associated with pursuing such action.


 


ARTICLE 4.

COVENANTS


 


4.1                                 Exclusive Dealing.  During the period from the date of this
Agreement to the earlier of the Closing or the termination of this Agreement in
accordance with its terms, neither of the Parties will, nor will they permit
any of their respective subsidiaries or any of their, or


 


10





















 


their
subsidiaries’, respective officers, directors, employees or agents or other
representatives (including financial advisors, attorneys and consultants),
acting on behalf of such Party, to take any action to enter into any contract
or agreement that would be prohibited under the terms of any of the Joint
Venture Documents listed on Schedule 2.4 of the Master Agreement
Disclosure Letter assuming for the purposes of this Section 4.1, such
Joint Venture Documents were in full force and effect, but recognizing that the
Joint Venture Company does not exist as of the date of this Agreement and does
not have any capacity to manufacture NAND Flash Memory Products.


 


4.2                                 Reasonable Efforts.  Each of Intel and Micron will cooperate and
use its reasonable efforts to take, or cause to be taken, all appropriate
actions (and to make, or cause to be made, all filings necessary, proper or
advisable under Applicable Law) to consummate and make effective the
transactions contemplated by this Agreement and the Joint Venture Documents,
including its reasonable efforts to obtain, as promptly as practicable, all
licenses, permits, consents, approvals, authorizations, qualifications and orders
of Governmental Entities and parties to contracts, as are necessary for the
consummation of the transactions contemplated by this Agreement and the Joint
Venture Documents and to fulfill the conditions in Article 5 of this
Agreement.


 


4.3                                 Governmental
Filings.  Subject to Applicable Laws,
prior to the making or submission of any analysis, appearance, presentation,
memorandum, brief, argument, opinion or proposal by or on behalf of either
Party in connection with proceedings under or relating to the HSR Act or any
other applicable Competition Law, Intel and Micron will consult and cooperate
with one another, and consider in good faith the views of one another, in
connection with any such analyses, appearances, presentations, letters, white
papers, memoranda, briefs, arguments, opinions or proposals.  In this regard but without limitation, each
Party hereto shall promptly inform the other of any material communication
between such Party and the Federal Trade Commission, the Antitrust Division of
the United States Department of Justice, or any other federal, foreign or state
antitrust or competition Governmental Entity regarding the transactions
contemplated by this Agreement.  Nothing
in the Agreement, however, shall require or be construed to require any Party
hereto, in order to obtain the consent or successful termination of any review
of any such Governmental Entity regarding the transactions contemplated by this
Agreement, to (i) sell or hold separate, or agree to sell or hold
separate, before or after the Closing Date, any assets, businesses or any
interests in any assets or businesses, of such Party or any of its Affiliates
(or to consent to any sale, or agreement to sell, any assets or businesses, or
any interests in any assets or businesses), or any change in or restriction on
the operation by such Party of any assets or businesses, or (ii) enter
into any agreement or be bound by any obligation that, in such Party’s good
faith judgment, may have an adverse effect on the benefits to such Party of the
transactions contemplated by this Agreement.


 


4.4                                 Access to
Properties and Records.  From the
date of this Agreement through the Closing, Micron shall afford representatives
of Intel reasonable access to the Lehi Site and the MTV Site, and books and
records reasonably related to the contemplated operations of the Joint Venture
Company, during normal business hours, so that Intel has a full opportunity to
investigate the Micron Contributed Assets; provided, however,
that such investigation shall be at reasonable times and upon reasonable notice
and shall not unreasonably disrupt the personnel and operations of Micron.


 


11





















 


4.5                                 Further Assurances.  From time to time, as and when requested by
any Party, the other Party will execute and deliver, or cause to be executed
and delivered, all such documents and instruments and will take, or cause to be
taken, all such further or other actions, as the Parties may reasonably agree
are necessary or desirable to consummate the transactions contemplated by this
Agreement.


 


4.6                                 Transfer Taxes.  Each of the Parties shall pay all of the
costs and expenses of all transfer, documentary, sales, use, stamp,
registration, value added and other similar Taxes and governmental filing and
permit fees that are incurred by such Party or by the Joint Venture Company in
connection with the transfer or conveyance of any property to the Joint Venture
Company as contemplated by this Agreement and the Joint Venture Documents.


 


4.7                                 Confidentiality.  The disclosure and exchange of Confidential
Information (as defined in the CNDA) between the Parties is governed solely by
the terms of the CNDA.  At the Closing, the Parties and the
Joint Venture Company will sign a confidentiality agreement governing their
respective confidentiality obligations with respect to the Joint Venture
Company and its transactions.


 


4.8                                 Press Releases.  The Parties agree that, following the signing
of this Agreement, the Parties shall issue a joint press release, the text of
which shall have been pre-approved in writing by Micron and Intel.  Prior to the issuance of such joint press
release announcing the execution of this Agreement, neither Party shall make
any public disclosure, announcement or statement with respect to this Agreement,
the Joint Venture Documents or the Joint Venture Company or any of the
transactions contemplated by this Agreement or the Joint Venture
Documents.  Following the issuance of
such joint press release, and subject to the terms and conditions of the CNDA,
each Party shall be free to reuse the information contained in the joint press
release.


 


4.9                                 Legally Compelled
Disclosures.  In the event that a
Party is requested or becomes legally compelled (including without limitation,
pursuant to securities laws and regulations) to disclose any of the Joint
Venture Documents where such disclosure would be in contravention of the
provisions of this Agreement, the CNDA or the Confidentiality Agreement, the
Party may make such disclosure but subject to the provisions of this Section 4.9.  The Party required to make such disclosure
shall provide the other Party with prompt written notice of the requirement to
make such disclosure before making such disclosure and will use its reasonable
efforts to cooperate fully with the other Party to seek a protective order,
confidential treatment, or other appropriate remedy with respect to the
disclosure.  In such event, the
disclosing Party shall furnish for disclosure only that portion of the
information that is legally required to be disclosed and shall exercise its
reasonable efforts to obtain reliable assurance that confidential treatment
will be accorded to such information to the extent reasonably requested by the
other Party and to the maximum extent possible under Applicable Law.  The disclosing Party agrees that it will
provide the other Party with drafts of any documents or other filings in which
it is required to disclose this Agreement, the other Joint Venture Documents or
any other confidential information subject to the terms of this Agreement at
least two (2) Business Days prior to the filing or disclosure thereof for
any matter to be filed with the Commission on Form 8-K and at least five (5) Business
Days prior to the filing or disclosure for any other matter required to be
filed with the Commission or any other Governmental Entity, and that it will
make any changes 


 


12





















 


to such materials as reasonably requested by the other Party to the
extent permitted by law or any rules and regulations of the Commission or
any other Governmental Entity, as applicable.


 


4.10                           Ownership Interest.  Prior to the Closing, Micron shall not
transfer or agree to transfer any interest in the Joint Venture Company to any
Person.


 


4.11                           Continuity and
Maintenance of Operations. 
Commencing with the date first above written and ending as of the date
of Closing, each Party agrees to use reasonable efforts consistent with past
practice and policies to (i) preserve intact in all material respects that
portion of its present business operations expected to be made available
(through services agreements or otherwise) or contributed to the Joint Venture
Company at the time of Closing, (ii) maintain in all material respects the
services of such Party’s employees who are reasonably expected to render
full-time service to the Joint Venture Company as seconded employees or who are
otherwise expected to be an integral part of the services to be provided by
such Party to the Joint Venture Company, and (iii) preserve in all
material respects its relationships with suppliers, licensors, licensees, and
others having material business relationships in connection with that portion
of its business operations expected to be made available (through services
agreements or otherwise) or contributed to the Joint Venture Company at the
time of Closing.


 


4.12                           Certain Deliveries and
Notices.  From the date of this
Agreement until the Closing, each Party shall promptly inform in writing the
other Party of (i) any event or occurrence that could be reasonably
expected to have a Material Adverse Effect on its ability to perform its or
their obligations under any of the Joint Venture Documents or in the reasonable
opinion of the Party, the ability of the Joint Venture Company to conduct its
business as contemplated in the Initial Business Plan, or (ii) any breach
that cannot or will not be cured by the Closing or failure to satisfy any
condition or covenant, if such failure cannot or will not be cured by the
Closing, contained herein or in any other Joint Venture Document by such Party.


 


4.13                           Non-solicitation of
Employees.


 


(A)                              During the Joint Venture
Company Non-Solicitation Period and subject to Section 4.13(D), neither
Party shall, without the prior written consent of the other Party, directly or
indirectly recruit or solicit any employee of the Joint Venture Company or any
of its subsidiaries (“Restricted Employees”
for purposes of this subsection (A) and subsection (G)) to leave
his or her employment with the Joint Venture Company or such subsidiary.


 


(B)                                In addition to the
foregoing, during the Facilities Company Employee Non-Solicitation Period and
subject to Section 4.13(D), neither Party shall, without the prior written
consent of the other Party, directly or indirectly recruit or solicit any
employee of a Facilities Company (“Restricted Employees”
for purposes of this subsection (B) and subsection (G)) to leave
his or her employment with such Facilities Company.


 


(C)                                In addition to the
foregoing, during the Facility Employee Non-Solicitation Period and subject to Section 4.13(D),
neither Party shall, without the prior written consent of the other Party,
directly or indirectly recruit or solicit any employee of a Facility (“Restricted Employees” for purposes of this subsection (C) and
subsection (G)) to leave his or her employment with such Facility.


 


13





















 


(D)                               If the entire Interest
held by one Party is purchased by the other Party, or its designee, (1) the
selling Party, for a period of [***] after the closing of such purchase, shall
not, without the prior written consent of the other Party, directly or
indirectly recruit or solicit any employee of the Joint Venture Company, any of
its subsidiaries or any Facilities Company (“Restricted
Employees” for purposes of this subsection (D) and subsection (G))
to leave his or her employment with the Joint Venture Company, such subsidiary
or such Facilities Company and (2) the obligations of both Parties
pursuant to Sections 4.13(A), 4.13(B) and 4.13(C) shall cease.


 


(E)                                 Prior to the Closing
and for [***] thereafter, neither Party may, without the prior written consent
of the other Party, directly or indirectly recruit or solicit any employee of
the other Party whose name appears on Schedule 4.13(E) of the
Master Agreement Disclosure Letter (“Restricted Employees”
for purposes of this subsection (E) and subsection (G)) to leave
his or her employment with the other Party.


 


(F)                                 Prior to the first to
occur of (1) the termination of this Agreement without the Closing having
occurred, (2) a Liquidating Event or (3) the purchase by one Party of
the entire Interest held by the other Party, neither Party nor any of either
Party’s Affiliates may, without the prior written consent of the other Party,
directly or indirectly recruit or solicit any [***] employed by the other Party
or any of its Affiliates (“Restricted Employees”
for purposes of this subsection (F) and subsection (G)) to leave
his or her employment with the employing Party and join any group, team or
other organization of the soliciting Party engaging in the [***], [***] or
[***] or [***] of [***] (an “[***] Group”).  Any Restricted Employee hired by the hiring
Party to work in any of the hiring Party’s group, team or other organization
other than an [***] Group shall not be transferred to, or consulted with or
included in any discussion involving, [***] or an [***] Group for a period of
[***], except that consulting on the inclusion of [***] into or onto another
product that is not a [***] product is not prohibited; provided,
however, that the foregoing shall not
relieve a Restricted Employee of any confidentiality obligations that he or she
may owe to a Party.  Notwithstanding the
foregoing provisions of this Section 4.13(F), if the Product Designs
Development Agreement is terminated, the obligations contained in this Section 4.13(F) will
expire [***] after such termination and be of no further force and effect.


 


(G)                                Neither the placement
of employment advertisements or other general solicitation for employees not
specifically targeted to Restricted Employees by any means, including through
the use of hiring agencies or through employees of each Party who are unaware
of the prohibitions against the solicitation of the Restricted Employees shall
be a recruitment or solicitation prohibited by this Section 4.13 provided that any such hiring agencies and employees are not
instructed by persons who knew about the prohibition on the solicitation of the
Restricted Employees to solicit for hire Restricted Employees.  In addition, nothing herein shall prevent
either Party from recruiting, offering to hire or hiring Restricted Employees
who contact the Party on their own initiative, and in such event there shall be
no restriction on where such Restricted Employee may work; provided,
however, that the foregoing shall not relieve a Restricted Employee
of any confidentiality obligations that he or she may owe to a Party.  If a Party inadvertently violates the
prohibition against the solicitation of Restricted Employees, such Party must,
as soon as it is aware it has committed a violation of this section, either
withdraw any


 


14





















 


offer to the solicited individual or ensure that such person, if hired,
is subject to the restrictions described in the second to last sentence of Section 4.13(F),
in which event such inadvertent action shall not be deemed to be a breach of
this Section 4.13 so long as there is no repetitive pattern of such
actions.


 


4.14                           Initial Business Plan.  The Parties shall work in good faith to
prepare a mutually acceptable Initial Business Plan prior to the Closing.


 


4.15                           Title.  Micron covenants that during the term of this
Agreement, Micron, without cost to the Joint Venture Company, will diligently
present and prosecute claims under the Micron Title Insurance Policies with
respect to any claim, action, loss or damage that the Joint Venture Company may
assert against Micron, to the extent the Joint Venture Company’s claims against
Micron are covered by the Micron Title Insurance Policies.  Micron agrees to pay over to the Joint
Venture Company any proceeds paid to Micron in respect of Micron’s claims
asserted under the Micron Title Insurance Policies; provided however, that
notwithstanding anything herein to the contrary, the right granted to the Joint
Venture Company under this Section 4.15 to receive such payment or the
Joint Venture Company’s receipt of such payment shall not in any manner limit
any rights or remedies the Joint Venture Company may otherwise have against
Micron with respect to claims to which right of payment or payment is
attributable, except to the extent of any amounts actually received under the
Micron Title Insurance Policies.


 


4.16                           Water Rights.


 


(A)                              Change and Perfection.  Micron agrees to publicly support, and shall
not protest, any application for the change of the Water Rights for use in
connection with the Lehi Land, and for the business of the Joint Venture
Company thereon, to the extent the proposed change implements and is consistent
with the terms and conditions of the Reciprocal Easement and License Agreement,
and Micron and further agrees to cooperate with the Joint Venture Company in
perfecting any such pending or future change application, including without
limitation, Change Application No. a19136.


 


(B)                                Report of Water
Right Conveyance.  Upon occurrence of
the Transfer, Micron agrees to cooperate with the Joint Venture Company in the
preparation of a Report of Water Right Conveyance relating to the Water Rights
and the processing thereof with the Utah Division of Water Rights.


 


4.17                           Completion of Work.  Commencing promptly after the date hereof,
Micron shall use commercially reasonable efforts to cause to be prepared a
survey in accordance with Section 5 of the reciprocal easement agreement
that is attached to the Lehi Lease, and to complete the Subdivision Work (as
defined in the Lehi Lease) in accordance with Section 1.2 of the Lehi
Lease.


 


4.18                           Tax Matters.  The Parties shall cooperate in a good
faith, commercially reasonable manner to maximize tax benefits or minimize tax
costs of the Joint Venture Company (and any Facilities Company), and of the
Parties or their Affiliates with respect to the activities of the Joint Venture
Company (and any Facilities Company), consistent with the overall goals of the
Joint Venture Documents.  Such
cooperation may include, but shall not be limited to, amending


 


15





















 


one or more of
the Joint Venture Documents or seeking a ruling from a taxing authority; provided, however, that
neither of the Parties shall be required to consent to amend any of the Joint
Venture Documents or take other action that such Party reasonably determines is
not commercially reasonable, and; provided, further, that if one Party (and its Affiliates) is not
likely (based on reasonable assumptions and projections) to benefit directly or
indirectly from an action requested by the other Party pursuant to this Section 4.18,
then the Parties shall use good faith commercially reasonable efforts to enter
into an agreement requiring the requesting Party to reimburse the other Party
for the reasonable out-of-pocket costs incurred by that other Party to effect
the change desired by the requesting Party, and the other Party shall not be
required to incur such costs until such an agreement has been entered into.


 


4.19                           Supply Agreements  The Parties acknowledge that, at the Closing,
they each will enter into Supply Agreements with the Joint Venture Company
pursuant to which each such Member shall purchase from the Joint Venture
Company, and the Joint Venture Company shall supply to each such Member, a
percentage of the Joint Venture Company’s output of Products equal to such
Member’s Sharing Interest.  The Parties will work in good faith to
promptly determine the specific methodology for the sharing of such Joint
Venture Company output based upon such Sharing Interest, which, if
determined before the Closing, will be implemented immediately following
Closing.


 


ARTICLE 5.

CLOSING


 


5.1                                 Closing.  The closing of the transactions contemplated
by this Agreement (the “Closing”) will
take place at the offices of Gibson, Dunn & Crutcher LLP, 1881 Page Mill
Road, Palo Alto, California 94304 or at such other place as the Parties may
agree and shall occur on or before the third (3rd) Business Day after all of
the conditions set forth in Sections 5.2, 5.3 and 5.4 are first satisfied or
properly waived, except as mutually agreed by the Parties, including any such
agreement made to facilitate Closing at the end of Micron’s fiscal month.


 


5.2                                 Conditions to the
Obligations of the Parties.  The
respective obligations of the Parties under this Agreement to consummate the
transactions contemplated hereby will be subject to the satisfaction, at or
prior to Closing, of the conditions that:


 


(A)                              there shall not have been
entered a preliminary or permanent injunction, temporary restraining order or
other judicial or administrative order or decree of any Governmental Entity (an
“Order”) the effect of which prohibits
the Closing, and no litigation, arbitration, investigation or administrative
proceeding seeking to enjoin, restrict or prevent the consummation of the
transactions contemplated by this Agreement or any of the Joint Venture
Agreements, or seeking to prohibit or limit the ability of the Joint Venture
Company, Intel or Micron to conduct the business contemplated by the Joint
Venture Agreements, shall be pending before any Governmental Entity;


 


(B)                                the Parties shall have
caused the Joint Venture Company to obtain all property insurance and other
insurance policies, effective as of the Closing, as set forth on Schedule 5.2(B) of
the Master Agreement Disclosure Letter, which insurance coverage may be
provided through one or more insurance policies of a Member;


 


16





















 


(C)                                the Annexation and
Development Agreement and the Economic Development Agreement each shall have
been assigned to, and assumed by, the Joint Venture Company;


 


(D)                               all required waiting
periods under the HSR Act shall have expired or been terminated, any filings or
approvals required to be made or obtained under any foreign antitrust,
competition or fair trade laws or regulations shall have been made or obtained,
and any required waiting periods under any foreign antitrust, competition or
fair trade laws or regulations shall have expired or been terminated; in each
case without the imposition of any conditions;


 


(E)                                 no statute, rule,
regulation, executive order, decree, ruling or injunction shall have been
enacted, entered, promulgated or enforced by any United States federal or state
or foreign court or United States federal or state or foreign Governmental
Entity that prohibits, restrains, enjoins or restricts the consummation of the
transactions contemplated by this Agreement or the Joint Venture Documents; and


 


(F)                                 the Parties shall have
approved the Initial Business Plan, including the [***] Budget and the [***]
Budget, of the Joint Venture Company through the first three (3) years of
operation of the Joint Venture Company.


 


5.3                                 Conditions to the
Obligations of Intel.  The
obligations of Intel under this Agreement to consummate the transactions
contemplated hereby will be further subject to the satisfaction, at or prior to
the Closing, of all of the following conditions, any one or more of which may
be waived in writing by Intel at its option:


 


(A)                              Accuracy of
Representations and Warranties.  The
representations and warranties of Micron contained in this Agreement that are
subject to qualifications and exceptions contained therein relating to
materiality, Material Adverse Effect or Material Adverse Environmental Effect
shall be true and correct, and all other representations and warranties of
Micron contained in this Agreement shall be true and correct in all material
respects, both on and as of the date of this Agreement and at and as of the
Closing (with the same force and effect as if made anew at and as of the
Closing), except to the extent that such representations and warranties speak
as of another date, in which case such representations and warranties shall be
true and correct as of such other date. 
For the purposes of this Section 5.3(A) only, the term “Material
Adverse Environmental Effect” as used in a qualification or exception to any
representations and warranties contained in this Agreement shall be deemed to
mean “Material Adverse Effect,” as defined in this Agreement.


 


(B)                                Compliance with
Covenants.  All covenants of Micron
contained in this Agreement and the Joint Venture Documents that are to be
performed and complied with by Micron at or before the Closing shall have been
performed and complied with in all material respects.


 


(C)                                Consents.  Each of the governmental and other approvals,
consents or waivers identified with an asterisk on Schedule 3.2(C) and
Schedule 3.2(D) of the Master Agreement Disclosure Letter as
being a condition of the Closing, shall have been obtained on terms and
conditions that are reasonably satisfactory to Intel.


 


17





















 


(D)                               Delivery of
Agreements by or on Behalf of Micron. 
Micron shall have duly executed and delivered to the Joint Venture
Company or Intel, as the case may be, each of the Joint Venture Documents to
which Micron is a party, and each such Joint Venture Document shall be in full
force and effect without any event having occurred or condition existing that
constitutes, or with the giving of notice or the passage of time (or both)
would constitute, a material default under or material breach of such Joint Venture
Document by Micron.


 


(E)                                 Initial Capital
Contribution.  Micron shall have made
its initial Capital Contribution to the Joint Venture Company as contemplated
in Section 2.1(B) of the Operating Agreement.


 


(F)                                 Formation of Joint
Venture Company.  Micron shall have
formed the Joint Venture Company as a limited liability company under the laws
of the State of Delaware, and the Joint Venture Company shall be validly
existing and in good standing as of the Closing.


 


(G)                                Approval of Intel
Executive Officer.  Micron shall have
consented to the individual seconded by Intel to serve as the Joint Venture
Company’s initial Intel Executive Officer in accordance with Section 8.1
of the Operating Agreement.


 


(H)                               Bills of Conveyance.  Micron shall have delivered to the bills of
sale and conveyance listed on Schedule 5.3(H) of the Master
Agreement Disclosure Letter, each duly executed by Micron.


 


5.4                                 Conditions to
Obligations of Micron.  The
obligations of Micron under this Agreement to consummate the transactions
contemplated hereby will be further subject to the satisfaction, at or prior to
the Closing, of all of the following conditions, any one or more of which may
be waived in writing by Micron at its option:


 


(A)                              Accuracy of
Representations and Warranties.  The
representations and warranties of Intel contained in this Agreement that are
subject to qualifications and exceptions contained therein relating to
materiality or Material Adverse Effect shall be true and correct, and all other
representations and warranties of Intel contained in this Agreement shall be
true and correct in all material respects, both on and as of the date of this
Agreement and at and as of the Closing (with the same force and effect as if
made anew at and as of the Closing), except where such failure to be true and
correct will not result in a Material Adverse Effect and except to the extent
that such representations and warranties speak as of another date, in which
case such representations and warranties shall be true and correct as of such other
date.


 


(B)                                Compliance with
Covenants.  All covenants of Intel
contained in this Agreement and the Joint Venture Documents that are to be
performed and complied with by Intel at or before the Closing shall have been
performed and complied with in all material respects.


 


(C)                                Consents.  Each of the governmental and other approvals,
consents or waivers identified with an asterisk on Schedule 3.1(D) of
the Master Agreement Disclosure Letter as being a condition of the Closing,
shall have been obtained on terms and conditions reasonably satisfactory to
Micron.


 


18





















 


(D)                               Delivery of
Agreements by or on Behalf of Intel. 
Intel shall have duly executed and delivered to the Joint Venture
Company or Micron, as the case may be, each of the Joint Venture Documents to
which Intel is a party, and each such Joint Venture Document shall be in full
force and effect without any event having occurred or condition existing that
constitutes, or with the giving of notice or the passage of time (or both)
would constitute, a material default under or material breach of such Joint
Venture Document by Intel.


 


(E)                                 Initial Capital
Contribution.  Intel shall have made
its initial Capital Contribution to the Joint Venture Company as contemplated
in Section 2.1(A) of the Operating Agreement.


 


(F)                                 Approval of Micron
Executive Officer.  Intel shall have
consented to the individual seconded by Micron to serve as the Joint Venture
Company’s initial Micron Executive Officer in accordance with Section 8.2
of the Operating Agreement.


 


5.5                                 Closing
Deliverables of Micron.  At the
Closing, Micron shall deliver or cause to be delivered:


 


(A)                              to the Joint Venture
Company or Intel, as the case may be, counterparts of each of the Joint Venture
Documents to which Micron is a party, each duly executed by Micron;


 


(B)                                to Intel, a certificate
of Micron, dated as of the Closing Date and signed by an authorized officer of
Micron, certifying that the conditions set forth in Sections 5.3(A), (B) and
(C) have been satisfied;


 


(C)                                to Intel, a certified
copy of the certificate of formation of the Joint Venture Company filed in the
office of the Delaware Secretary of State, in a form agreed to between the
Parties; and


 


(D)                               to Intel, a certificate
of good standing, dated as of the Closing Date, as to the good standing of the
Joint Venture Company.


 


5.6                                 Closing
Deliverables of Intel.  At the
Closing, Intel shall deliver or cause to be delivered:


 


(A)                              to the Joint Venture
Company or Micron, as the case may be, each of the Joint Venture Documents to
which Intel is a party, duly executed by Intel;


 


(B)                                to Micron, a
certificate of Intel, dated as of the Closing Date and signed by an authorized
officer of Intel, certifying that the conditions set forth in Sections 5.4(A), (B) and
(C) have been satisfied; and


 


(C)                                to the Joint Venture
Company, Intel’s initial Capital Contribution to the Joint Venture Company as
contemplated in Section 2.1(A) of the Operating Agreement.


 


19





















 


ARTICLE 6.

INDEMNIFICATION


 


6.1                                 Survival.


 


(A)                              Survival of Covenants.  The covenants and agreements of the Parties
contained in this Agreement or in any certificates or other writing delivered
pursuant hereto or thereto will, unless specifically stated otherwise in this
Agreement or certificates or other writings, survive the Closing and the
delivery of the Lehi Deed.


 


(B)                                Survival of
Representations and Warranties.  The
certifications, representations and warranties made by the Parties to this
Agreement (and in the certificates referred to in Section 5.5(B) and Section 5.6(B))
shall survive the Closing until the second anniversary of the Closing Date
(except for the representations and warranties contained in Sections 3.2 (I)
and (J), which shall survive the Closing and
the Delivery of the Lehi Deed until the fourth anniversary of the Closing
Date).


 


6.2                                 Indemnification.


 


(A)                              Intel will indemnify,
defend and hold harmless Micron, Micron’s subsidiaries and the Joint Venture
Company and their officers, directors, employees and agents against any and all
liabilities, damages, losses, costs and expenses (including reasonable
attorneys’ and consultants’ fees and expenses) (collectively, “Losses”), incurred or suffered by them as a result of  (1) any failure to be true or correct of
any representation or warranty made by Intel or any of its officers, directors,
employees or agents in this Agreement or any of the certificates or other
writings (other than the Joint Venture Documents) delivered at Closing pursuant
to this Agreement (where representations and warranties qualified by references
to materiality, Material Adverse Effect or Material Adverse Environmental
Effect are to be interpreted as though they were not so qualified), provided a claim therefor is asserted no later than sixty
(60) days after the end of the survival period therefor, (2) any failure
to perform or comply with any covenant or agreement of Intel in this Agreement,
or (3) any liabilities,
debts, obligations or duties of Intel that are not expressly assumed by the
Joint Venture Company under this Agreement or another Joint Venture Document
and that are outside the
scope of any representation or warranty of Intel that is the subject of the
indemnification obligation set forth in Section 6.2(A)(1) ; provided, however, that (x) Intel shall not be liable
under Section 6.2(A)(1) until aggregate Losses as a result of such
failures exceed $[***], at which point Intel shall be liable only for the
amount of such Losses in excess of $[***]; and (y) Intel’s aggregate liability
under Section 6.2(A)(1) for Losses that exceed $[***] shall not
exceed $[***].  In addition, all of Intel’s
indemnification obligations under Section 6.2(A)(1) and 6.2(A)(3) will
terminate on the [***] anniversary of the Closing Date.


 


(B)                                Micron will indemnify,
defend and hold harmless Intel, Intel’s subsidiaries and the Joint Venture
Company and their officers, directors, employees and agents against any and all
Losses incurred or suffered by them as a result of (1) any failure to be
true or correct of any representation or warranty made by Micron or any of its
officers, directors, employees or agents in this Agreement or any of the
certificates or other writings (other than the Joint Venture Documents)
delivered at Closing pursuant to this Agreement (where representations and


 


20





















 


warranties
qualified by references to materiality, Material Adverse Effect or Material
Adverse Environmental Effect are to be interpreted as though they were not so
qualified), provided a claim therefor is asserted no later than sixty (60) days
after the end of the survival period therefor, (2) any failure to perform
or comply with any covenant or agreement of Micron in this Agreement, (3) any
violation of any Environmental Laws arising from or relating to conditions
existing or events occurring on any of the Contributed Property or the Micron
Retained Property prior to the Closing Date, or (4) any liabilities, debts,
obligations or duties of Micron that are not expressly assumed by the Joint
Venture Company under this Agreement or another Joint Venture Document and that are outside the scope of any
representation or warranty of Micron that is the subject of the indemnification
obligation set forth in Section 6.2(B)(1) and outside the scope of
the environmental indemnity set forth in Section 6.2(B)(3); provided, however, that (x) Micron shall not be liable
under Section 6.2(B)(1) or Section 6.2(B)(3) until
aggregate Losses as a result of such failures exceed $[***], at which point
Micron shall be liable only for the amount of such Losses in excess of $[***];
and (y) Micron’s aggregate liability under Sections 6.2(B)(1) and
Section 6.2(B)(3) for Losses that exceed $[***] shall not exceed
$[***].  In addition, all of Micron’s
indemnification obligations under Section 6.2(B)(1), Section 6.2(B)(3) and
Section 6.2(B)(4) will terminate on the [***] anniversary of the
Closing Date.


 


6.3                                 Procedures.


 


(A)                              General.  Promptly after the receipt by any Party who
or which is entitled to seek indemnification under Section 6.2 (an “Indemnified Party”) of a notice of any Third Party Claim
that may be subject to indemnification under Section 6.2, such Indemnified
Party shall give written notice of such Third Party Claim to the Party against
whom indemnification is sought (the “Indemnifying Party”),
stating in reasonable detail the nature and basis of each claim made in the
Third Party Claim and the amount thereof, to the extent known, along with
copies of the relevant documents received by the Indemnified Party evidencing
the Third Party Claim and the basis for indemnification sought.  Failure of the Indemnified Party to give such
notice shall not relieve the Indemnifying Party from liability on account of
this indemnification, except if and only to the extent that the Indemnifying
Party is actually prejudiced thereby. 
Thereafter, the Indemnified Party shall deliver to the Indemnifying
Party, promptly after the Indemnified Party’s receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnified
Party relating to the Third Party Claim. 
The Indemnifying Party shall have the right to assume the defense of the
Indemnified Party with respect to the Third Party Claim upon written notice to
the Indemnified Party delivered within thirty (30) days after receipt of the
particular notice from the Indemnified Party.


 


(B)                                So long as the
Indemnifying Party has assumed the defense of the Third Party Claim in
accordance herewith and notified the Indemnified Party in writing thereof, (i) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim, it being understood
that the Indemnifying Party shall pay all reasonable costs and expenses of
counsel for the Indemnified Party after such time as the Indemnified Party has
notified the Indemnifying Party of such Third Party Claim and prior to such
time as the Indemnifying Party has notified the Indemnified Party that it has
assumed the defense of such Third Party Claim, (ii) the Indemnified Party
shall not file any papers or, other than in connection with a settlement of the
Third Party Claim, consent to the entry of any 


 


21





















 


judgment without the prior written consent of the Indemnifying Party
(not to be unreasonably withheld, conditioned or delayed) and (iii) the
Indemnifying Party will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim (other than a judgment or
settlement that is solely for money damages and is accompanied by a release of
all indemnifiable claims against the Indemnified Party) without the prior
written consent of the Indemnified Party (not to be unreasonably withheld,
conditioned or delayed).  Whether or not
the Indemnifying Party shall have assumed the defense of the Indemnified Party
for a Third Party Claim, such Indemnifying Party shall not be obligated to
indemnify and hold harmless the Indemnified Party hereunder for any consent to
the entry of judgment or settlement entered into with respect to such Third
Party Claim without the Indemnifying Party’s prior written consent, which
consent shall not be unreasonably withheld, conditioned or delayed.


 


(C)                                In the case of any
Third Party Claim where the Indemnifying Party reasonably believes that it
would be appropriate to settle such Third Party Claim using equitable remedies
(i.e., remedies involving the future
activity and conduct of the Joint Venture Company), the Indemnifying Party and
the Indemnified Party shall work together in good faith to agree to a
settlement; provided, however,
that no Party shall be under any obligation to agree to any such settlement.


 


(D)                               Any Direct Claim by an
Indemnified Party against an Indemnifying Party will be asserted by giving the
Indemnifying Party reasonably prompt written notice thereof, but in any event
not later than thirty (30) days after the Indemnified Party becomes aware of
the facts giving rise to such Direct Claim. 
Failure of the Indemnified Party to give such notice shall not relieve
the Indemnifying Party from liability on account of this indemnification,
except if and only to the extent that the Indemnifying Party is actually
prejudiced thereby.  Such notice by the
Indemnified Party will describe the Direct Claim in reasonable detail and will
indicate the estimated amount, if reasonably practicable, of Losses that have
been or may be sustained by the Indemnified Party.  The Indemnifying Party will have a period of
ten (10) Business Days within which to respond in writing to such Direct
Claim.  If the Indemnifying Party does
not so respond within such ten (10) Business Day period, the Indemnifying
Party will be deemed to have rejected such claim, in which event the
Indemnified Party will be free to pursue such remedies as may be available to
the Indemnified Party on the terms and subject to the provisions of this
Agreement.


 


6.4                                 Specific
Performance.  The Parties agree that
irreparable damage will result if this Agreement is not performed in accordance
with its terms, and the Parties agree that any damages available under the
indemnification provisions or at law for a breach of this Agreement would not
be an adequate remedy.  Therefore, the
provisions hereof and the obligations of the parties hereunder shall be
enforceable in a court of equity, or other tribunal with jurisdiction, by a
decree of specific performance, and appropriate injunctive relief may be
applied for an granted in connection therewith.


 


6.5                                 Treatment of
Indemnification Payments; Insurance Recoveries.  Any indemnity payment under this Article 6
shall be decreased by any amounts actually recovered by the Indemnified Party
under third party insurance policies with respect to such Loss (net of any
premiums paid by such Indemnified Party under the relevant insurance policy),
each Party agreeing (i) to use all reasonable efforts to recover all
available insurance proceeds and (ii) to the


 


22





















 


extent that
any indemnity payment under this Article 6 has been paid by the
Indemnifying Party to the Indemnified Party prior to the recovery by the
Indemnified Party of such insurance proceeds, such amounts actually recovered
by the Indemnified Party shall be promptly paid to the Indemnifying Party.


 


6.6                                 Certain Additional
Procedures.  The Indemnified Party
shall cooperate and assist the Indemnifying Party in determining the validity
of any Third Party Claim for indemnity by the Indemnified Party and in
otherwise resolving such matters.  The
Indemnified Party shall cooperate in the defense by the Indemnifying Party of
each Third Party Claim (and the Indemnified Party and the Indemnifying Party
agree with respect to all such Third Party Claims that a common interest
privilege agreement exists between them), including by (i) permitting the
Indemnifying Party to discuss the Third Party Claim with such officers,
employees, consultants and representatives of the Indemnified Party as the
Indemnifying Party reasonably requests, (ii) providing to the Indemnifying
Party copies of documents and samples of products as the Indemnifying Party
reasonably requests in connection with defending such Third Party Claim, (iii) preserving
all properties, books, records, papers, documents, plans, drawings, electronic
mail and databases relating to matters pertinent to the Third Party Claim and
under the Indemnified Party’s custody or control in accordance with such Party’s
corporate documents retention policies, or longer to the extent reasonably
requested by the Indemnified Party, (iv) notifying the Indemnifying Party
promptly of receipt by the Indemnified Party of any subpoena or other third
party request for documents or interviews and testimony, and (v) providing
to the Indemnifying Party copies of any documents produced by the Indemnified
Party in response to or compliance with any subpoena or other third party
request for documents.  In connection
with any claims, except to the extent inconsistent with the Indemnified Party’s
obligations under Applicable Law and except to the extent that to do so would
subject the Indemnified Party or its employees, agents or representatives to
criminal or civil sanctions, and unless ordered by a court to do
otherwise, the Indemnified Party shall not produce documents to a third party until
the Indemnifying Party has been provided a reasonable opportunity to review,
copy and assert privileges covering such documents.


 


6.7                                 Remedies.  Prior to the Closing Date, specific
performance shall be the Parties’ sole and exclusive remedy under this Agreement,
except for breaches of Section 4.7. 
From and after the Closing Date, specific performance and the
indemnification remedies set forth in Section 6.2 shall be the Parties’
sole and exclusive remedies under this Agreement, except for breaches of Section 4.7.  Such remedies and all other remedies provided
for in this Agreement shall, however, be cumulative and not exclusive.


 


ARTICLE 7.

TERMINATION


 


7.1                                 Termination.


 


(A)                              This Agreement may be
terminated at any time prior to the Closing:


 


(1)                                  by either Party if
the Closing shall not have been occurred by February 28, 2006; provided, however, that
neither Party may terminate this Agreement pursuant to this Section 7.1(A)(1) if
the Closing shall not have occurred by such date by reason of the failure of 


 


23





















 


such Party or any of its Affiliates to perform in all material respects
any of its or their respective covenants or agreements contained in this
Agreement;


 


(2)                                  by the mutual written
consent of the Parties;


 


(3)                                  by Intel, if there
has been a breach by Micron of any covenant, representation or warranty
contained in this Agreement that has resulted in a Material Adverse Effect or
has prevented the satisfaction of any condition to the obligations of Intel,
and such breach has not been waived by Intel or cured by Micron, within thirty
(30) days after written notice thereof from Intel (or such longer period as is
necessary to effect a cure of the breach, so long as Micron diligently attempts
to effect a cure throughout such period and such period does not extend beyond February 28,
2006); or


 


(4)                                  by Micron, if there
has been a breach by Intel of any covenant, representation or warranty
contained in this Agreement that has resulted in a Material Adverse Effect or
has prevented the satisfaction of any condition to the obligations of Micron,
and such breach has not been waived by Micron or cured by Intel, within thirty
(30) days after written notice thereof from Micron (or such longer period as is
necessary to effect a cure of the breach, so long as Intel diligently attempts
to effect a cure throughout such period and such period does not extend beyond February 28,
2006).


 


(B)                                If this Agreement is
terminated pursuant to Section 7.1(A), all further obligations of the Parties
under this Agreement (other than pursuant to Section 4.7 and Articles 6,
and 8, which will continue in full force and effect) will terminate without
further liability or obligation of either Party to the other Party hereunder; provided, however, that no Party will be released from
liability hereunder if this Agreement is terminated and the transactions
abandoned by reason of (1) failure of such Party to have performed its
material obligations under this Agreement or (2) any material
misrepresentation made by such Party of any matter set forth in this Agreement.


 


ARTICLE 8.

MISCELLANEOUS


 


8.1                                 Limitation of
Liability.  [***].


 


8.2                                 Exclusions and
Mitigation.  Sections
8.1 and 6.2 will not apply to either Party’s breach of Section 4.7.  Each Party shall have a duty to use
reasonable efforts to mitigate damages for which the other Party is
responsible.  No Member shall be entitled
to recover Losses for the diminution in value of its interest in the Joint
Venture Company resulting from any event, circumstance or occurrence for which
the Joint Venture Company is pursuing and is entitled to


 


24





















 


indemnification
hereunder for the full amount of its Losses arising from such event,
circumstance or occurrence.


 


8.3                                 Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed given upon (A) transmitter’s
confirmation of a receipt of a facsimile transmission, (B) confirmed
delivery by a standard overnight carrier or when delivered by hand, (C) the
expiration of five (5) Business Days after the day when mailed in the
United States by certified or registered mail, postage prepaid, or (D) delivery
in person, addressed at the following addresses (or at such other address for a
party as shall be specified by like notice):


 


(A)                              if to Intel:


 


Intel
Corporation

2200 Mission College Blvd.

Mailstop SC4-203

Santa Clara, CA  95054

Attention:  General Counsel

Facsimile:  (408) 653-8050


 


with a copy
to:


 


Intel
Corporation

2200 Mission College Blvd.

Mailstop RN6-46

Santa Clara, CA  95054

Attention:  [***]

Facsimile:  [***]


 


(B)                                if to Micron:


 


Micron
Technology, Inc.

8000 S. Federal Way

Mail Stop 1-507

Boise, ID  83716

Attn:  General Counsel

Facsimile:  (208) 368-4537


 


8.4                                 Waiver.  The failure at any time of a Party to require
performance by the other Party of any responsibility or obligation required by
this Agreement shall in no way affect a Party’s right to require such
performance at any time thereafter, nor shall the waiver by a Party of a breach
of any provision of this Agreement by the other Party constitute a waiver of
any other breach of the same or any other provision nor constitute a waiver of
the responsibility or obligation itself.


 


8.5                                 Assignment.  This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each Party hereto.  Neither this Agreement nor any right or
obligation hereunder may be assigned or delegated by either Party in whole or
in part to any other Person, 


 


25





















 


including by operation of law or in connection with any acquisition,
merger, or change of control of a Party, without the prior written consent of
the nonassigning Party.


 


8.6                                 Third Party Rights.


 


(A)                              The Parties agree that
the Joint Venture Company shall be a third party beneficiary to the agreements
made hereunder by the Parties, and the Joint Venture Company shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder.


 


(B)                                Nothing in this
Agreement, whether express or implied, is intended or shall be construed to
confer, directly or indirectly, upon or give to any Person, other than the
Parties hereto and the Joint Venture Company, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant,
condition or other provision contained herein.


 


8.7                                 Choice of Law.  This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Delaware,
without giving effect to the principles of conflict of laws thereof.


 


8.8                                 Jurisdiction; Venue.  Any suit, action or proceeding seeking to
enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement shall be brought in a state or federal court
located in Delaware and each of the Parties to this Agreement hereby consents
and submits to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by Applicable Law, any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding which is brought in any such court has been brought in an
inconvenient forum.  Process in any such
suit, action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court


 


8.9                                 Dispute Resolution.


 


(A)                              All disputes between the
Parties over a purported breach of this Agreement (each, a “Dispute”), shall be resolved as follows:  the Parties shall first submit the matter to
the chief executive officers (or other senior executives officers) of each of
the Parties by providing notice of the Dispute to the Parties.  The chief executive officers (or other senior
executives officers) shall then make a good faith effort to resolve the
Dispute.  If they are unable to resolve
the Dispute within ten (30) days of receiving notice of the Dispute (during
which thirty-day period, the chief executive officers (or other senior
executive officers) shall seek in good faith to hold at least three (3) meetings
at which they shall make a good faith effort to resolve the Dispute), then a
civil action with respect to the Dispute may be commenced, but only after the
matter has been submitted to JAMS for mediation as contemplated by Section 8.9(B).


 


(B)                                If there is a Dispute,
either Party may commence mediation by providing to JAMS and the other Party a
written request for mediation, setting forth the subject of the Dispute and the
relief requested. The Party will cooperate with JAMS and with one another in
selecting a mediator from JAMS panel of neutrals, and in scheduling the
mediation proceedings. The Parties covenant that they will participate in the
mediation in good faith, and that they will share equally 


 


26





















 


in its costs. All offers, promises, conduct and statements, whether
oral or written, made in the course of the mediation by any of the Parties,
their agents, employees, experts and attorneys, and by the mediator and any
JAMS employees, are confidential, privileged and inadmissible for any purpose,
including impeachment, in any litigation or other proceeding involving the
Parties, provided that evidence that is otherwise
admissible or discoverable shall not be rendered inadmissible or
non-discoverable as a result of its use in the mediation. Either Party may seek
equitable relief prior to the mediation to preserve the status quo pending the
completion of that process. Except for such an action to obtain equitable
relief, neither Member may commence a civil action with respect to a Dispute
until after the completion of the initial mediation session, or 45 days after
the date of filing the written request for mediation, whichever occurs first.
Mediation may continue after the commencement of a civil action, if the Parties
so desire. The provisions of this Section may be enforced by any court of
competent jurisdiction, and the Party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including attorneys’ fees, to be paid
by the Party against whom enforcement is ordered.


 


8.10                           Headings.  The headings of the Articles and Sections in
this Agreement are provided for convenience of reference only and shall not be
deemed to constitute a part hereof.


 


8.11                           Entire Agreement.  This Agreement, together with the Appendices
and Schedules hereto and the agreements and instruments expressly provided for
herein, constitute the entire agreement of the Parties hereto with respect to
the subject matter hereof and supersede all prior agreements and
understandings, oral and written, between the Parties hereto with respect to
the subject matter hereof.


 


8.12                           Severability.  Should any provision of this Agreement be
deemed in contradiction with the laws of any jurisdiction in which it is to be
performed or unenforceable for any reason, such provision shall be deemed null
and void, but this Agreement shall remain in full force in all other
respects.  Should any provision of this
Agreement be or become ineffective because of changes in Applicable Laws or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby. 
If such circumstances arise, the Parties hereto shall negotiate in good
faith appropriate modifications to this Agreement to reflect those changes that
are required by Applicable Law.


 


8.13                           Counterparts.  This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


8.14                           Expenses.  Whether or not the transactions contemplated
by this Agreement are ultimately consummated, each Party shall bear its own
costs and expenses in connection with the negotiation, execution and delivery
of this Agreement and the Joint Venture Documents.


 


8.15                           Certain Interpretive
Matters.


 


(A)                              Unless the context
requires otherwise, (1) all references to Sections, Articles or the
Appendix are to Sections, Articles or the Appendix of or to this
Agreement,  (2) words in the
singular include the plural and visa versa, (3) the term “including” means “including without


 


27





















 


limitation,”
and (4) 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.  All references to “$”
or dollar amounts will be to lawful currency of the United States of
America.  All references to “$” or dollar amounts shall be to precise amounts and not
rounded up or down.  All references to “day” or “days” will mean
calendar days.


 


(B)                                No provision of this
Agreement will be interpreted in favor of, or against, any of the Parties by
reason of the extent to which any such party or its counsel participated in the
drafting thereof or by reason of the extent to which any such provision is
inconsistent with any prior draft of this Agreement or such provision.


 


[SIGNATURE PAGE FOLLOWS]


 


28





















 


IN WITNESS
WHEREOF, this Agreement has been executed and delivered as of the date first
above written.


 


	
   

  	
  INTEL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ARVIND
  SODHANI

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:  Arvind Sodhani

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior Vice
  President, Intel Corporation

  
	
   

  	
   

  	
  President,
  Intel Capital

  
	
   

  	
   

  
	
   

  	
  MICRON
  TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ STEVEN
  R. APPLETON

  	
   

  
	
   

  	
   

  
	
   

  	
  Print Name:  Steven R. Appleton

  
	
   

  	
   

  
	
   

  	
  Title: Chief
  Executive Officer and President

  
						



 


THIS IS THE SIGNATURE PAGE FOR THE MASTER AGREEMENT ENTERED

INTO BY AND BETWEEN INTEL CORPORATION AND MICRON TECHNOLOGY,

INC.


 





















 


APPENDIX A


 


MASTER AGREEMENT


 


DEFINITIONS


 


“Affiliate” means, with respect to any specified Person, a
Person that directly or indirectly, including through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the Person specified.


 


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


 


“Annexation and Development Agreement” means the Annexation
and Development Agreement, dated as of June 13, 1995, between Micron and
Lehi City, and any amendments thereto.


 


“Applicable Law” means any laws, statutes, rules,
regulations, ordinances, orders, codes, arbitration awards, judgments, decrees
or other legal requirements of any Governmental Entity.


 


“Assigned Contracts” means the contracts to be assigned by
Micron to the Joint Venture Company under one or more assignment and assumption
agreements duly executed by Micron, as referred to on Schedule 2.4
of the Master Agreement Disclosure Letter.


 


“Bilateral Agreements” shall have the meaning set forth in Section 2.2
of this Agreement.


 


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


 


“Capital Contribution” shall have the meaning set forth in
the Operating Agreement.


 


“Closing” shall have the meaning set forth in Section 5.1
of this Agreement.


 


“Closing Date” means the date on which the Closing
occurs.  For purposes of this Agreement
and the other agreements and instruments referenced herein, the Closing shall
be deemed to have occurred at 11:59 p.m. on such date.


 


“CNDA” means the Corporate Non-Disclosure Agreement No. [***],
dated as of [***], between Micron and Intel.


 


“Commission” means the United States Securities and Exchange
Commission.


 


“Competition Law” means the Sherman Antitrust Act of 1890, as
amended, the Clayton Act of 1914, as amended, the HSR Act, the Federal Trade
Commission Act, as amended, and all other domestic or foreign Applicable Laws
issued by a domestic or foreign Governmental Entity that are designed or
intended to prohibit, restrict or regulate actions having the purpose or effect
of monopolization or restraint of trade or lessening of competition through
merger or acquisition.


 





















 


“Contractual Obligations” means any promise, commitment or
understanding between Micron and any Governmental Entity or any third party
relating to the Contributed Real Property, the Micron Retained Property, or the
Other Contributed Property.


 


“Contributed Land” means the Lehi Site.


 


“Contributed Real Property” means the Lehi Site and the MTV
Site.


 


“Direct Claim” means any claim, demand, lawsuit, complaint,
cross-complaint or counter-complaint, arbitration, opposition, cancellation
proceeding, or other legal or arbitral proceeding of any nature, brought in any
court, tribunal or judicial forum anywhere in the world, regardless of the
manner in which such proceeding is captioned or styled brought by any Party, or
their respective subsidiaries, officers, directors, employees or agents.


 


“Dispute” shall have the meaning set forth in Section 8.9(A) of
this Agreement.


 


“Economic Development Agreement” means the Economic
Development Agreement, dated as of May 16, 1997, between Micron and the
Redevelopment Agency of Lehi City, and any amendments thereto.


 


“Environmental Laws” means any and all laws, statutes,
ordinances, rules, regulations, orders or binding determinations of any
Governmental Entity pertaining to the environment in any and all jurisdictions
in which any of the Contributed Real Property is located, including without
limitation, the Clean Air Act, as amended, the Comprehensive Environmental,
Response, Compensation, and Liability Act of 1980, as amended, the Federal
Water Pollution Control Act, as amended, the Resource Conservation and Recovery
Act of 1976, as amended, the Safe Drinking Water Act, as amended, the Toxic
Substances Control Act, as amended, the Hazardous & Solid Waste
Amendments Act of 1984, as amended, the Superfund Amendments and Reauthorization
Act of 1986, as amended, the Hazardous Materials Transportation Act, as
amended, any state laws pertaining to the handling of wastes or the use,
maintenance, and closure of pits and impoundments, and other environmental
conservation or protection laws.


 


“Environmental Permits” shall have the meaning set forth in Section 3.2(J)(3) of
this Agreement.


 


“Exchange Act” means the
Securities Exchange Act of 1934, as amended.


 


“[***] Budget” shall have the
meaning set forth in the Operating Agreement.


 


“Facilities Company” shall have the meaning set forth in the
Operating Agreement.


 


“Facilities Company Employee Non-Solicitation Period” means
the period commencing as of the Closing Date and ending: (a)(i) with
respect to a Party electing to purchase a given Facilities Company pursuant to Article 13
of the Operating Agreement, on the date that such Party provides written notice
of its election to acquire such Facilities Company pursuant to such Article 13,
and (ii) with respect to the other Party, [***] following such date; or (b) if
neither Party elects to purchase a given Facilities Company pursuant to Article 13
of the 


 


A-2





















 


Operating Agreement, on the date that such Facilities Company is sold
or the assets thereof disposed of pursuant to Section 13.11 of the
Operating Agreement.


 


“Facility Employee Non-Solicitation Period” means the period
commencing as of the Closing Date and ending: (a)(i) with respect to a
Party electing to purchase a given Facility that is part of a Facilities
Company that owns more than one Facility and its Associated Assets pursuant to Article 13
of the Operating Agreement, on the date that such Party provides written notice
of its election to acquire such Facility pursuant to such Article 13, and (ii) with
respect to the other Party, [***] following such date; or (b) if neither
Party elects to purchase a given Facility pursuant to Article 13 of the
Operating Agreement, on the date that such Facility is sold or the assets
thereof disposed of pursuant to Section 13.11 of the Operating Agreement.


 


“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.


 


“Hazardous Substances” means any asbestos, any flammable,
explosive, radioactive, hazardous, toxic, contaminating, polluting matter,
waste or substance, including any material defined or designated as a hazardous
or toxic waste, material or substance, or other similar term, under any
Environmental Laws in effect or that may be promulgated in the future.


 


“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.


 


“Indemnified Party” shall have the meaning set forth in Section 6.3(A) of
this Agreement.


 


“Indemnifying Party” shall have the meaning set forth in Section 6.3(A) of
this Agreement.


 


“Initial
Business Plan” shall have the meaning set forth in the
Operating Agreement.


 


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


 


“Intel Agreements” shall have the meaning set forth in Section 2.3
of this Agreement.


 


“Intel Executive Officer” shall have the meaning set forth in
the Operating Agreement.


 


“Interest” means a membership interest in the Joint Venture
Company, including any and all benefits to which a member of the Joint Venture
Company may be entitled under the Operating Agreement and the obligations of a
member under the Operating Agreement.


 


“JAMS” means Judicial Arbitration and Mediation Services.


 


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


 


A-3





















 


“Joint Venture Company Non-Solicitation Period” means the
period commencing as of the Closing Date and ending upon the occurrence of a
Liquidating Event.


 


“Joint Venture Documents” means any or all of this Agreement,
the Pre-Existing and Contemporaneously Executed Agreements, the Bilateral
Agreements, the Trilateral Agreements, the Intel Agreements and the Micron
Agreements.


 


“Lehi Deed” means that certain Special Warranty Deed in the
form attached to the Lehi Lease.


 


“Lehi Land” means the Lehi Property as that term is defined
in the Lehi Lease.


 


“Lehi Lease” means that certain Lehi Pre-Subdivision Lease
with Agreement to Deed between Micron, as lessor, and the Joint Venture
Company, as lessee, referred to on Schedule 2.4 of the Master
Agreement Disclosure Letter.


 


“Lehi Site” means the Lehi Contributed Property as that term
is defined in the Lehi Lease.


 


“Lien” means any lien, mortgage, pledge, hypothecation, right
of others, claim, security interest, encumbrance, lease, sublease, license,
interest, option, charge or other restriction or limitation of any nature
whatsoever.


 


“Liquidating Event” shall have the
meaning set forth in the Operating Agreement.


 


“Losses” shall have the meaning set forth in Section 6.2(A) of
this Agreement.


 


“Master Agreement Disclosure Letter” means the disclosure
letter, as agreed to between the Parties as of the date hereof, containing the
Schedules required by the provisions of this Agreement.


 


“Material Adverse Effect” means (i) a material adverse
effect on the business, results of operations, financial condition or prospects
of a Party and its subsidiaries, taken as a whole, or of the Joint Venture
Company, or (ii) any change or effect that prevents or materially impedes
or delays the consummation of the transactions contemplated by this Agreement
and the Joint Venture Documents and the other transactions contemplated hereby
and thereby, all taken as a whole; provided, that
changes and effects attributable to changes in Applicable Law of general
applicability or interpretations thereof by courts or Governmental Entities
shall not be deemed, either alone or in combination, to constitute, and shall
not be taken into account in determining whether there has been or will be, a
Material Adverse Effect.


 


“Material Adverse Environmental Effect” means any
environmental release, discharge, or contamination, or any injunction, cease
and desist order, show cause order, or other administrative or judicial order
issued under any Environmental Laws, which has resulted in, or is reasonably
likely to result in, (1) a fine or penalty in excess of $[***], or (2) damages
to the Joint Venture Company or to Micron in excess of $[***].


 


“Member” or “Members” means
one or both members of the Joint Venture Company.


 


A-4





















 


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


 


“Micron Agreements” shall have the meaning set forth in Section 2.4
of this Agreement.


 


“Micron Contributed Assets” shall
have the meaning set forth in Section 2.6(B) of this Agreement.


 


“Micron Executive Officer” shall have the meaning set forth in
the Operating Agreement.


 


“Micron Retained Property” means the Landlord’s Retained
Property, as that term is defined in the Lehi Lease.


 


“MTV Lease” means that
certain MTV Lease Agreement between Micron, as lessor, and the Joint Venture
Company, as lessee, referred to on Schedule 2.4 of the Master
Agreement Disclosure Letter.


 


“MTV Site” means the Property as that term is defined in the
MTV Lease.


 


“Micron Title Insurance Policies” shall have the meaning set
forth in Section 3.2(G)(8).


 


“Municipal Services Agreements” shall have the meaning set
forth in the Lehi Lease.


 


“NAND Flash Memory Product” shall have the meaning set forth
in the Operating Agreement.


 


“[***] Budget” shall have the meaning set forth in the
Operating Agreement.


 


“[***] Group” shall have the
meaning set forth in Section 4.13(F) of this Agreement.


 


“Operating Agreement” means that
certain Limited Liability Company Operating Agreement of IM Flash Technologies,
LLC between Micron and Intel referred to on Schedule 2.2 of the
Master Agreement Disclosure Letter.


 


“Order” shall have the meaning set forth in Section 5.2(A) of
this Agreement.


 


“Other Contributed Property” means all tangible personal
property identified to be transferred pursuant to a bill of conveyance, as
referenced in Schedule 5.3(H) of the Master Agreement
Disclosure Letter, conveying to the Joint Venture Company tangible personal
property located at the Lehi Site.


 


“Party” means Intel or Micron individually and “Parties” means Intel and Micron collectively.


 


“Permitted Liens” shall have the meaning set forth in Section 3.2(G)(3) of
this Agreement.


 


“Person” or “Persons” means
any natural person and any corporation, firm, partnership, trust, estate,
limited liability company or other entity resulting from any form of association.


 


A-5





















 


“Pre-Existing and Contemporaneously Executed Agreement” shall
have the meaning set forth in Section 2.1 of this Agreement.


 


“Product Designs Development Agreement” means that certain
Product Designs Development Agreement between Intel, as owner, and Micron, as
developer referred to on Schedule 2.2 of the Master Agreement
Disclosure Letter.


 


“Products” shall have the meaning set forth in the Operating
Agreement.


 


“Real Property Contracts” shall have the meaning set forth in
Section 3.2(F)(1) of this Agreement.


 


“Sharing Interest” shall have the meaning set forth in the
Operating Agreement.


 


“Supply Agreements” shall have the meaning set forth in the
Operating Agreement.


 


“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.


 


“Third Party Claim” means any claim, demand, lawsuit,
complaint, cross-complaint or counter-complaint, arbitration, opposition,
cancellation proceeding, or other legal or arbitral proceeding of any nature,
brought in any court, tribunal or judicial forum anywhere in the world,
regardless of the manner in which such proceeding is captioned or styled
brought by any Person, other than Intel or Micron or any of their subsidiaries
or their officers, directors, employees or agents (in their capacities as
such).


 


“Transfer” shall have the meaning set forth in the Lehi
Lease.


 


“Trilateral Agreements” shall have the meaning set forth in Section 2.5
of this Agreement.


 


“Water Rights” means all of Micron’s right, title and
interest in and to Water Right Nos. 55-8976 (A31540) (a19136), 55-8981
(A32648) (a19136), and 55-9159 (A70333), all as reflected in the records of the
Utah State Engineer, Division of Water Rights.


 


“Water System” means, all presently constructed wells,
wellheads and well houses, tanks (including without limitation process and fire
water tanks), reservoirs, fire protection and irrigation systems, metering and
telemetry equipment, pumps, sumps, water lines, electric power supply equipment
and all other associated equipment situated on, over or beneath the Lehi Land
for use in connection with the diversion, carriage or delivery of the Water
Rights, except such items as are owned by the City of Lehi.


 


A-6