Exhibit 10.157


 


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


 


INTEL/MICRON CONFIDENTIAL


 


MANUFACTURING SERVICES
AGREEMENT


 


This MANUFACTURING
SERVICES AGREEMENT (the “Agreement”),
is made and entered into as of this 6th day of January, 2006 (the “Effective Date”), by and between Micron Technology, Inc.,
a Delaware corporation (“Micron”), and
IM Flash Technologies, LLC, a Delaware limited liability company (“Joint Venture Company”).


 


RECITALS


 


A.            The
Joint Venture Company is engaged in the manufacture, assembly and test of NAND
Flash Memory Products (as defined hereinafter); and


 


B.            Micron
possesses the ability to perform manufacturing services in connection with
Probed Wafers for NAND Flash Memory Products; and


 


C.            Micron
desires to provide and the Joint Venture Company desires to purchase
manufacturing services upon the terms and subject to the conditions set forth
in this Agreement (Micron and the Joint Venture Company are each, a “Party” and collectively, the “Parties”).


 


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.


 


SECTION 1


 


DEFINITIONS; CERTAIN INTERPRETIVE
MATTERS


 


1.1           Definitions.  In addition to the terms defined elsewhere in
this Agreement, capitalized terms used in this Agreement shall have the
respective meanings set forth in Exhibit A.


 


1.2           Certain
Interpretive Matters.


 


(a)             Unless
the context requires otherwise, (1) all references to Sections, Articles,
Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
Appendices or Schedules of or to this Agreement, (2) each of the Schedules
will apply only to the corresponding Section or subsection of this
Agreement, (3) each accounting term not otherwise defined in this
Agreement has the meaning commonly applied to it in accordance with GAAP, (4) words
in the singular include the plural and visa versa, (5) the term “including”
means “including without limitation,” and (6) 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 “day” or “days” will mean
calendar days and all references to “quarter(ly)”, “month” or “year” will mean
Fiscal Quarter, Fiscal Month or Fiscal Year, respectively.


 


(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.


 


SECTION 2


 


PROVISION OF MANUFACTURING
SERVICES; CONTROLS


 


2.1           Provision
of Manufacturing Services.  Micron
will provide to the Joint Venture Company Manufacturing Services, as described
on Schedule 2.1 in accordance with the terms and conditions
contained herein.


 


2.2           Level
of Manufacturing Services.   The
Joint Venture Company shall provide Micron with the Ramp Plan for the Site, as
initially set forth in the Initial Business Plan in the LLC Operating Agreement
and subject to adjustment in the Manufacturing Plan.  Micron shall prepare for the Joint Venture
Company, in response to the Ramp Plan, a proposal for the level of services to
be provided at the Site.  The Parties
shall review such proposal and mutually agree on the level of Manufacturing
Services, subject to mutually agreeable adjustment based upon changes in the
Initial Business Plan and Manufacturing Plan. 
Micron shall staff and operate the Site to enable Micron to provide the
agreed level of Manufacturing Services. 
The Parties acknowledge that in the normal course of performing
Manufacturing Services, variances in output may and do occur and that nothing
in the Approved Business Plan, Manufacturing Plan or the agreed level of
Manufacturing Services is a binding commitment to achieve a specific output of
Probed Wafers.


 


2.3           Control;
Processes. Micron and the Joint Venture Company will periodically review
Micron’s processes and control mechanisms relating to the performance of the
Manufacturing Services, including the Performance Criteria.  If the Joint Venture Company requests any
changes or additions to Micron’s existing process and control mechanisms, the
Parties shall work together in good faith to resolve any such requests.


 


2.4           Option
to Designate WIP.  [***].


 


2.5           [***].  In addition to the quarterly review and
monthly report requirements set forth in ARTICLE 5, Micron will
notify the Joint Venture Company promptly of all [***].


 


2.6           Masks.  Masks required for the Manufacturing Services
will either be provided by the Joint Venture Company or purchased by Micron
hereunder.  Such masks will only be used
to perform the Manufacturing Services for the Joint Venture Company.  Masks will be repaired and replaced solely at
mask operations that have been approved by the Joint Venture Company, which
approval shall not be unreasonably withheld. 
[***].


 


2.7           Traceability and
Data Retention. The Joint Venture Company and Micron shall review Micron’s
Manufacturing Services process traceability system in regards to the
manufacturing process [***]


 


2





















 


and will agree on the level of data to be
traced through such system and which data shall be available with real-time
access or as otherwise mutually agreed by the Parties.  Micron agrees to maintain such data for a
minimum of [***] from completion of the Probed Wafer lot and [***] to the
extent such level of data is offered real-time within Micron, subject to system
limitations related to the exclusion of non-NAND data. The Joint Venture
Company may provide its customers with access to such data, subject to any
confidentiality requirements.


 


2.8           Business
Continuity Plan.  Micron and the
Joint Venture Company will review Micron’s Business Continuity Plan as it
relates to the Manufacturing Services provided hereunder.  If the Joint Venture Company requests any
changes or additions to Micron’s existing Business Continuity Plan, the Parties
shall work together in good faith to resolve any such agreed resolutions.  The Joint Venture Company may provide Micron’s
Business Continuity Plan to its customers, subject to any confidential
requirements.


 


2.9           Additional
Customer Requirements.  The Joint
Venture Company will inform Micron in writing of any auditable supplier
requirements relating to Manufacturing Services requested by the Joint Venture
Company’s customers.  Micron and the
Joint Venture Company shall work together in good faith to resolve any such
requests.


 


2.10         Transfer
of Manufacturing Technology; Equivalency of Operations.  [***].


 


SECTION 3


 


ITEMS TO BE SUPPLIED BY THE JOINT
VENTURE COMPANY


 


3.1           Leased
Space and Manufacturing Equipment; [***].  In order for Micron to perform Manufacturing
Services hereunder, the Joint Venture Company shall provide Micron with access
to all equipment owned or leased by the Joint Venture Company and installed at
the Site, including, but not limited, to the automated material handling
system, manufacturing equipment and other required equipment not provided by
Micron hereunder (collectively “Joint Venture Equipment”).  [***].


 


3.2           [***].  [***].


 


3





















 


3.3           [***].


 


3.4           Provision
of Technical Assistance.  The Joint
Venture Company shall furnish or have furnished to Micron in accordance with
the requirements of the Joint Venture Documents such technical assistance as
the Parties agree is reasonably necessary to enable Micron to perform the
Manufacturing Services hereunder.


 


SECTION 4


 


ITEMS TO BE SUPPLIED BY MICRON


 


4.1           Facilities
Maintenance, Manufacturing Systems, Secondary Equipment and Support.  Micron shall utilize certain of its Site
systems and equipment to perform the Manufacturing Services (collectively “Micron Equipment”).  Micron shall provide necessary repair and
maintenance of the Micron Equipment and Joint Venture Equipment in order to
maintain such equipment in good working order and in accordance with any
applicable, recommended manufacturer’s guidelines, until such time as any of
such equipment becomes obsolete or uneconomical to maintain or repair.  All costs to repair or replace, maintain or
to add to or expand or enhance the facilities and/or the Micron Equipment as
reasonably required to perform the Manufacturing Services hereunder in
accordance with Joint Venture Company’s requirements hereunder shall be
expensed or capitalized in accordance with Micron’s accounting policies and
charged accordingly in the pricing set forth on Schedule 6.5.  Micron shall provide the Joint Venture
Company with ninety (90) days advance written notice of any change in Micron’s
accounting policies that would materially change the manner of calculating the
pricing hereunder. To the extent that any of the terms of this Section 4.1
conflict with the terms of the MTV Lease Agreement, the MTV Lease Agreement
shall control, including the section entitled Limitation of Tenants
Claims.


 


4.2           Manufacturing
Services Location.  Unless otherwise
agreed to by the Joint Venture Company, all Manufacturing Services by Micron
under this Agreement shall be performed at the Site specified in Schedule 2.1.


 


4.3           Service
Providers.  Micron shall staff the
Site with the quantity of service providers reasonably necessary for Micron to
provide the level of Manufacturing Services agreed to in Section 2.2,
above.  Micron shall provide services
providers with substantially the same level of qualification and skills as
Micron requires for personnel performing such services for its wholly-owned
facilities. Micron shall provide substantially the same training for such
service providers as Micron requires for personnel performing such services at
its wholly-owned facilities.  The Prices
for the service providers are included in the pricing set forth on Schedule 6.5.


 


4.4           Materials.  Micron shall procure on behalf of the Joint
Venture Company the materials required for performance of the Manufacturing
Services.  To the extent that the Joint
Venture Company 


 


4





















 


desires to provide
certain materials, the Parties shall work together in good faith on the timing
and manner for providing such materials so that it can be accommodated within
Micron’s business and manufacturing systems. 
Micron shall manage the use of materials as necessary to provide the
Manufacturing Services.  All such
materials acquired by Micron are included in the pricing set forth on Schedule 6.5.


 


4.5           Title
and Risk of Loss or Damage to Materials and Micron Equipment.


 


(a)             Materials.  [***].


 


(b)             Micron
Equipment.  [***].


 


ARTICLE 5


 


PLANNING MEETINGS AND FORECASTS; 


 


PERFORMANCE REVIEWS AND REPORTS


 


5.1           Planning
and Forecasting


 


(a)           Starting
upon the Effective Date and continuing on a Fiscal Quarter basis pursuant to a schedule agreed
by the Parties, the Joint Venture Company will provide Micron a demand forecast
setting forth the Joint Venture Company’s Probed Wafer demand.  The forecast shall project Probed Wafer
demand for the next [***] ([***]) Fiscal Quarters by design id, technology node
and probe level (“Demand Forecast”).


 


(b)           In
response to the Demand Forecast, Micron shall furnish the Joint Venture Company
with a Fiscal Quarter written forecast of Manufacturing Services reasonably
necessary to meet the Demand Forecast, on a schedule to be determined by
the Parties.   This written response (the
“Manufacturing Services Forecast”),
will include:


 


[***].


 


(c)           Based
on the Demand Forecast and the Manufacturing Services Forecast, the Joint
Venture Company will prepare a [***] ([***]) Fiscal Quarter proposed loading
plan (“Proposed Loading Plan”), which will be
subject to review by the Manufacturing Committee.  The Joint Venture Company


 


5





















 


shall provide Micron with the Proposed
Loading Plan at least [***] ([***]) Business Days prior to submission to the
Manufacturing Committee.


 


(d)           The
Joint Venture Company will submit the Proposed Loading Plan and other requested
information to the Manufacturing Committee for endorsement.  Once endorsed by the Manufacturing Committee,
the Proposed Loading Plan shall become part of the Manufacturing Plan.  Micron shall use the Manufacturing Plan as
the basis for determining the final quantity of Manufacturing Services that
Micron will provide to the Joint Venture Company pursuant to Section 2.2
above.


 


5.2           Performance
Review and Monthly Report on Performance. Micron shall meet with the Joint
Venture Company on a quarterly basis to review Micron’s performance of
Manufacturing Services and to determine whether such services are resulting in
the production of Probed Wafers that meet or exceed the desired Performance
Criteria.  Micron shall provide to the
Joint Venture Company, on a monthly basis as agreed by the Parties, a written
report that:


 


(a)           Describes
[***];


 


(b)           Describes
[***];


 


(c)           Describes
[***];


 


(d)           Identifies
[***];


 


(e)           Describes
[***]; and


 


(f)            Identifies
[***].


 


5.3           Monthly
Review.  In addition, the Parties shall hold a monthly meeting, on a schedule to
be agreed by the Parties, with the primary purpose of [***].


 


ARTICLE 6

ORDER PLACEMENT, PRICING AND INVOICING


 


6.1           Placement
of Purchase Orders.  Prior to the
commencement of every Fiscal Quarter or another time period agreed by the
Parties, the Joint Venture Company shall place a non-cancelable blanket
purchase order in writing (via e-mail or facsimile transmission) for
Manufacturing Services to be supplied by Micron in the following Fiscal Quarter
as agreed in the Manufacturing Services Forecast and Manufacturing Plan (each
such order, a “Purchase Order”).  The Joint Venture Company may issue change
orders to such Purchase Orders to reflect approved changes in the Manufacturing
Plan, provided


 


6





















 


that such changes can be
reasonably accommodated within Micron’s performance of the Manufacturing
Services without disrupting the on-going services in a manner to negatively
impact the previously placed Purchase Orders. 
The Joint Venture Company may also request Manufacturing Services
relating to special engineering or hot lots in accordance with Section II
of Schedule 6.5.  The terms and
conditions of this Agreement supersede the terms and conditions contained in
either Party’s sales or purchase documentation provided in connection herewith
unless expressly agreed otherwise in a writing signed by each Party.


 


6.2           Shortfall.  Micron shall immediately notify the Joint
Venture Company in writing of any inability to meet a Purchase Order commitment
for Manufacturing Services to be provided to the Joint Venture Company and
which may result in shortfall in achieving the quantity of Probed Wafers set
forth in the approved Manufacturing Plan.


 


6.3           Acceptance
of Purchase Order.  Each Purchase
Order that corresponds to the Manufacturing Plan in the manner contemplated by Section 6.1
and, and is otherwise free of errors, shall be deemed accepted by Micron upon
receipt and shall be binding on the Parties, to the extent not inconsistent
with the Manufacturing Plan.


 


6.4           Content
of Purchase Orders. Each Purchase Order shall specify the following information:


 


(a)           Purchase
Order number;


 


(b)           Quantity
of wafer starts by part number, design id, technology node and probe level;


 


(c)           Place
of delivery of Probe Wafer output produced in the course of the Manufacturing
Services; and


 


(d)           Other
terms (if any).


 


6.5           Pricing
and Invoicing.   Micron shall invoice
the Joint Venture Company on a monthly basis for the Manufacturing Services
provided hereunder in accordance with the pricing provided in Schedule 6.5.
All amounts owed under this Agreement are stated, calculated and shall be paid
in United States Dollars.  Except as
otherwise specified in this Agreement, the Joint Venture Company shall pay
Micron for the amounts due, owing, and duly invoiced under this Agreement within
[***] ([***]) days following delivery of an invoice therefore to such place as
Micron may reasonably direct therein.


 


6.6           Taxes.


 


(a)         General.  All sales, use and other transfer taxes
imposed directly on or solely as a result of the Services and payments
therefore provided herein shall be stated separately on Micron’s invoice,
collected from the Joint Venture Company and shall be remitted by Micron to the
appropriate tax authority (“Recoverable Taxes”), unless the Joint Venture
Company provides valid proof of tax exemption. When property is delivered
and/or services are provided or the benefit of services occurs within
jurisdictions in which collection and remittance of taxes by the Joint Venture
Company is required by law, Micron shall have sole responsibility for payment
of said taxes to the appropriate tax authorities. In the event such taxes are
Recoverable Taxes and Micron does not collect tax from the Joint Venture
Company or pay such taxes to the appropriate Governmental Entity on a timely
basis, and is subsequently audited by any tax authority, liability of the Joint
Venture Company will be limited to the tax assessment for such Recoverable
Taxes, with no reimbursement for penalty or interest charges or other amounts
incurred in connection therewith. Notwithstanding anything herein to the contrary,
taxes other than Recoverable Taxes shall not be reimbursed by the Joint Venture
Company, and each Party is responsible 


 


7





















 


for its own respective income
taxes (including franchise and other taxes based on net income or a variation
thereof), taxes based upon gross revenues or receipts, and taxes with respect
to general overhead, including but not limited to business and occupation
taxes, and such taxes shall not be Recoverable Taxes.


 


(b)         Withholding
Taxes.  In the event that the Joint
Venture Company is prohibited by law from making payments to Micron unless the
Joint Venture Company deducts or withholds taxes therefrom and remits such
taxes to the local taxing jurisdiction, then the Joint Venture Company shall
duly withhold and remit such taxes and shall pay to Micron the remaining net
amount after the taxes have been withheld. 
Such taxes shall not be Recoverable Taxes and the Joint Venture Company
shall not reimburse Micron for the amount of such taxes withheld.


 


6.7           Payment
to Vendors.  Micron shall be
responsible for and shall hold the Joint Venture Company harmless for any and
all payments to Micron’s contractors or vendors utilized in the performance of
Manufacturing Services under this Agreement.


 


6.8           Shipment.  Micron, in order to ensure timely and
complete shipment of Probed Wafers to the Joint Venture Company, shall arrange
for shipping to the Joint Venture Company’s customer or assembly services
provider.  To the extent that the
shipping charges, insurance, taxes, customs charges and any fees and duties in
connection with such shipment are not charged to directly to a Joint Venture
Company account, Micron shall pay such costs and invoice to the Joint Venture
Company in under the appropriate services agreement between the Parties.  Micron shall mark all shipping containers
with necessary lifting, handling, and shipping information, Purchase Order
number, date of shipment, and the names of the Joint Venture Company and
applicable customer, is any.  If no
instructions are given, Micron shall select the most cost effective carrier,
given the time constraints known to Micron.  
At the Joint Venture Company’s request, Micron will provide
drop-shipment of Probed Wafers to the Joint Venture Company’s customers or as
otherwise directed by the Joint Venture Company.


 


6.9           Packaging.
All shipment packaging of the Probed Wafers produced in the course of the
Manufacturing Services hereunder shall be in conformance with: (i) the
Specifications; (ii) the Joint Venture Company’s reasonable instructions; (iii) general
industry standards to ensure resistance to damage that may occur during
transportation. Marking on the packages shall be made by Micron in accordance
with the Joint Venture Company’s instructions.


 


6.10         Customs
Clearance.  Upon the Joint Venture
Company’s request, Micron will promptly provide the Joint Venture Company with
a statement of origin for all Probed Wafers produced in the course of the
Manufacturing Services hereunder and with applicable customs documentation for
Probed Wafers wholly or partially manufactured outside of the country of
import.


 


ARTICLE 7


 


PROVISION OF MANUFACTURING
SERVICES;  

SECONDARY SILICON


 


7.1           Performance
Criteria.  Micron will work with the
Joint Venture Company in good faith to improve manufacturing Performance
Criteria and to minimize Price.


 


7.2           Secondary
Silicon.    Any Secondary Silicon
segregated as a result of the Manufacturing Services shall be provided by
Micron to the Joint Venture Company, which shall provide the Secondary Silicon
to its customers in accordance with the Sharing Interests at the time.  ALL SECONDARY


 


8





















 


SILICON PROVIDED
HEREUNDER IS PROVIDED “AS IS,” “WHERE IS” WITH ALL FAULTS AND DEFECTS
BASIS WITHOUT WARRANTY OF ANY KIND.


 


ARTICLE 8


 


VISITATIONS AND AUDITS 


 


8.1           Visits.  Micron will support the Joint Venture Company’s
and its customers’ reasonable requests for visits to the facility where Micron
performs the Manufacturing Services hereunder for the purpose of reviewing
Micron’s performance of the Manufacturing Services, including requests for
further information and assistance in troubleshooting performance issues. Such
requests shall be reasonably granted by Micron so long as such visits and meetings
do not unduly interfere with Micron’s performance of the Manufacturing Services
and other operations.


 


8.2           Performance
Audit.  The Joint Venture Company’s
and its customers’ representatives upon reasonable advance notice,  shall have the right to observe Micron’s
performance of Manufacturing Services at the Site during normal working hours
as agreed by the Parties for the purposes of monitoring and auditing Micron’s
performance of the Manufacturing Services and compliance with any requirements
set forth in this Agreement.  Upon
completion of the audit, Micron and the Joint Venture Company shall work in
good faith to agree to an audit closure plan, which will be documented in the
audit report issued by the Joint Venture Company.  The Joint Venture Company may provide such
audit report to its customers, subject to any confidentiality requirements.


 


8.3           Financial
Audit.  The Joint Venture Company
reserves the right to have Micron’s books and records related to the pricing of
Probed Wafers hereunder inspected and audited not more than [***] during any
Fiscal Year to ensure compliance with Schedules 6.5 of this Agreement in
regards to Pricing of Manufacturing Services.  Such audit will be
performed by an independent third party auditor acceptable to both Parties at
the Joint Venture Company’s expense.  The
Joint Venture Company shall provide [***] ([***]) days advance written notice
to Micron of its desire to initiate an audit and the audit shall be scheduled
so that it does not adversely impact or interrupt Micron’s business operations.
If the audit reveals any material discrepancies, Micron or the Joint Venture
Company shall reimburse the other, as applicable, for any material
discrepancies within [***] ([***]) days after completion of the audit. 
The results of such audit shall be kept confidential by the auditor and only
the discrepancies shall be reported to the Parties and the Joint Venture
Company’s customers, and be limited to discrepancies identified by the
audit.  Notwithstanding the foregoing,
any auditor reports shall not disclose any Micron pricing or terms of purchase
for any purchases of materials or equipment hereunder to the Joint Venture
Company’s customers other than Micron, absent written agreement from the
customers’ respective legal counsel.  If
any audit reveals a material discrepancy, the Joint Venture Company may
increase the frequency of such audits to quarterly for the subsequent [***]
([***]) month period.


 


8.4           Subcontractor;
Vendor Visits.  Upon the Joint
Venture Company’s reasonable written request, Micron shall take reasonable
commercial efforts to request that its subcontractors or vendors, if any,
utilized in the performance of the Manufacturing Services hereunder allow a
Joint Venture Company or customer representative to visit the vendor or
subcontractors’ site.


 


9





















 


ARTICLE 9


 


WARRANTY; DISCLAIMER; LIMIT OF
LIABILITY


 


9.1           Manufacturing
Services Warranty.  Micron warrants
that it will perform the Manufacturing Services in a competent and workmanlike
manner, and in no case with less than reasonable care and that Probed Wafers
will be processed in accordance with the Process Specification (the “Standard of Care”). 
For the avoidance of doubt, Micron makes no representation or warranty
that Manufacturing Services provided hereunder shall result in (i) Probed
Wafers that meet a stated performance level or quality under the Product
Specification or any applicable Performance Criteria, or (ii) that the
level of Manufacturing Services supplied by Micron will result in the number of
Probed Wafers stated in the Manufacturing Plan.


 


9.2           Warranty
Claims.  [***].


 


9.3           Inspections.  The Joint Venture Company may, upon
reasonable advance written notice, request samples of WIP upon which Micron is
performing Manufacturing Services for purposes of determining whether the
Manufacturing Services meet or exceed the Performance Criteria and are
performed in accordance with Process Specification, provided that the provision
of such samples shall not materially impact Micron’s performance of the
Manufacturing Services or its ability to meet delivery requirements under any
accepted Purchase Order.  Any samples
provided hereunder shall be: (i) limited in quantity to the amount
reasonably necessary for the purposes hereunder and (ii) included in the
pricing.  Micron shall provide reasonable
assistance for the safety and convenience of the Joint Venture Company in
obtaining the samples in such manner as shall not unreasonably hinder or delay
Micron’s performance.


 


9.4             Hazardous
Materials.


 


(a)           If
the Manufacturing Services performed hereunder include Hazardous Materials as
determined in accordance with applicable law, Micron represents and warrants
that Micron and Micron’s employees, agents, and subcontractors, if any, performing
Manufacturing Services involving such materials shall be trained in accordance
with applicable law regarding the nature of and hazards associated with the
handling, transportation, and use of such Hazardous Materials, as applicable to
Micron.


 


(b)           To
the extent required by applicable law, Micron shall provide the Joint Venture
Company with Material Safety Data Sheets (MSDS) either prior to or accompanying
any delivery of Probed Wafers to the Joint Venture Company.


 


9.5             Disclaimer. [***].


 


10





















 


ARTICLE 10


 


CONFIDENTIALITY; OWNERSHIP


 


10.1         Protection
and Use of Confidential Information. 
All information provided, disclosed or obtained in connection with this
Agreement or the performance of any of the Parties’ activities under this
Agreement shall be subject to all applicable provisions of the Confidentiality
Agreement.  Furthermore, the terms and
conditions of this Agreement shall be considered “Confidential
Information” under the Confidentiality Agreement for which each
Party is considered a “Receiving Party”
under such agreement.  To the extent
there is a conflict between this Agreement and the Confidentiality Agreement,
the terms of this Agreement shall control.


 


10.2         Intellectual
Property Ownership.  Ownership of any
intellectual property developed by the Joint Venture Company will be governed
by either the Technology License Agreement or Product Designs Development
Agreement, as the case may be.


 


ARTICLE 11


 


INDEMNIFICATION


 


11.1         Mutual
General Indemnity.  [***].


 


11





















 


11.2         Indemnification
Procedures.


 


(a)           Promptly
after the receipt by any Indemnified Party of a notice of any Third Party Claim
that an Indemnified Party seeks to be indemnified under this Agreement, such
Indemnified Party shall give written notice of such Third Party Claim to the
Indemnifying Party, stating in reasonable detail the nature and basis of each
allegation made in the Third Party Claim and the amount of potential
Indemnified Losses with respect to each allegation, 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 by such failure or delay.  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 such Third Party
Claim upon written notice to the Indemnified Party delivered within [***]
([***]) days after receipt of the particular notice from the Indemnified Party.  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 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.


 


(b)           Equitable
Remedies.  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.


 


(c)           Treatment
of Indemnification Payments; Insurance Recoveries.  Any indemnity payment under this Agreement
shall be decreased by any amounts actually recovered by the Indemnified Party
under third party insurance policies with respect to such Indemnified Losses
(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 extent that any indemnity payment under
this Agreement has been paid by the Indemnifying Party to the Indemnified Party
prior to


 


12





















 


the recovery by the
Indemnified Party of such insurance proceeds, the amount of such insurance
proceeds actually recovered by the Indemnified Party shall be promptly paid to
the Indemnifying Party.


 


(d)           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 Claim that a common interest privilege agreement exists between
them), including, (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 of the Joint Venture Company and relating to
matters pertinent to the conduct of the Joint Venture Company 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 Indemnifying 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, (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; and
(vi) 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, unless
ordered by a court to do otherwise,  not
producing documents to a third party until the Indemnifying Party has been
provided a reasonable opportunity to review, copy and assert privileges
covering such documents.


 


ARTICLE 12


 


LIMITATION OF LIABILITY


 


12.1         Damages
Limitation.  [***].


 


12.2         [***].


 


12.3         Damages
Cap.  [***].


 


13





















 


12.4         Exclusions
and Mitigation.  Sections 12.1
and 12.3 will not apply to either Party’s breach of ARTICLE 10
or any claim that should be brought under the [***].  Section 12.3 will not apply to
the Joint Venture Company’s payment obligations for Manufacturing Service
hereunder.  Each Party shall have a duty
to use commercially reasonable efforts to mitigate damages for which the other
Party is responsible.


 


12.5         Losses.  Except as provided under Section 11.1,
the Joint Venture Company and Micron each shall be responsible for Losses to
their respective tangible personal or real property (whether owned or leased),
and each Party agrees to look only to their own insurance arrangements with
respect to such damages.  The Joint
Venture Company and Micron waive all rights to recover against each other,
including each Party’s insurers’ subrogation rights, if any, for any loss or
damage to their respective tangible personal property or real property (whether
owned or leased) from any cause covered by insurance maintained by each of
them, including their respective deductibles or self-insured retentions.  In the event of a loss hereunder involving a property,
transit or crime event or occurrence that: (i) is insured under Micron’s
insurance policies; (ii) a single insurance deductible applies; and (iii) the
loss event or occurrence affects the insured ownership or insured legal
interests of both Parties, then the Parties shall share the cost of the
deductible in proportion to each Party’s insured ownership or legal interests
in relative proportion to the total insured ownership or legal interests of the
Parties.


 


ARTICLE 13


 


TERM AND TERMINATION; REMEDIES


 


13.1         Term. The term of this Agreement
commences on the Effective Date and continues in effect until the earlier of: (i) a
period of ten (10) years from the Effective Date; [***].


 


13.2         Termination for Cause.  Micron may terminate this Agreement for cause
if the Joint Venture Company fails to make a payment which is due and payable
under the terms of this Agreement and the Joint Venture Company fails to cure
the same within one hundred eighty (180) days after receipt of written notice
from the Micron, unless such failure to pay was in response to Micron’s
material breach.  The Joint Venture
Company may terminate this Agreement for cause as agreed in Section 13.4(c).


 


14





















 


13.3         Survival.  Termination of this Agreement
shall not affect any of the Parties’ respective rights accrued or obligations
owed before termination including any rights or obligations of the Parties in
respect of any accepted Purchase Orders existing at the time of termination.  In addition, the following shall survive
termination of this Agreement for any reason: 
Sections 2.7, 3.3, 4.5, 6.7 and 13.3 and ARTICLE 1, 9,
10, 12 and 14.


 


13.4         Failure
to Adequately Perform Services. 
[***].


 


ARTICLE 14


 


MISCELLANEOUS


 


14.1         Force
Majeure Events.  The Parties shall be
excused from any failure to perform any obligation hereunder to the extent such
failure is caused by a Force Majeure Event. 
A Force Majeure Event shall operate to excuse a failure to perform an
obligation hereunder only for the period of time during which the Force Majeure
Event renders performance impossible or infeasible and only if the Party
asserting Force Majeure as an excuse for its failure to perform has provided
written notice to the other Party specifying the obligation to be excused and
describing the events or conditions constituting the Force Majeure Event.  As used herein, “Force Majeure Event” means
the occurrence of an event or circumstance beyond the reasonable control of the
party failing to perform, including, without limitation, (a) explosions,
fires, flood, earthquakes, catastrophic weather conditions, or other elements
of nature or acts of God; (b) acts of war (declared or undeclared), acts
of terrorism, insurrection, riots, civil disorders, rebellion or sabotage; (c) acts
of federal, state, local or foreign governmental authorities or courts; (d) labor
disputes, lockouts, strikes or other industrial action, whether direct or
indirect and whether lawful or unlawful; (e) failures or fluctuations in
electrical power or telecommunications service or equipment; and (f) delays
caused by the other Party’s nonperformance hereunder.


 


14.2         [***].


 


15





















 


14.3         Assignment.  Except as otherwise provided in the Joint
Venture Document, 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, other than a Wholly-Owned Subsidiary of such Party, without the prior
written consent of the non-assigning Party.  Any purported assignment in
violation of the provisions of this Section shall be null and void and
have no effect.  This Agreement shall be
binding upon and inure to the benefit of the successors and assigns of each
Party hereto.


 


14.4         Compliance with Laws and Regulations.  Each of
the Parties shall comply with, and shall use reasonable efforts to require that
its respective subcontractors comply with, Applicable Laws relating to the Manufacturing
Services.


 


14.5         On-Site
Visitations.  Each Party and its employees,
contractors or other representatives shall observe and be subject to all
safety, security and other policies and regulations regarding visitors and
contractors while on site at a facility of the other Party or its Affiliate.  A Party’s employees, contractors or other
representatives who access any facility of the other Party or its Affiliate
shall not interfere with, and except as otherwise agreed by the Parties, shall
not participate in,  the business or
operations of the facility accessed.


 


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


 


In the case of IM Flash
Technologies, LLC:


 


IM
Flash Technologies, LLC.


1550
East 3400 North


Lehi,
Utah  84043


Attention:  David A. Baglee; Rodney Morgan


Facsimile Number:  (801) 767-5370


 


With a mandatory copy to:


 


Intel Corporation


2200 Mission College
Blvd.


Mail-Stop SC4-203


Santa Clara, California
95054


Attention:  General Counsel


Facsimile
Number:  (408) 653-8050


 


16





















 


In the case of Micron:


 


Micron Technology, Inc.


8000 S. Federal Way


Boise, Idaho  83707-0006


Attention:  General Counsel


Facsimile Number:  (208) 368-4540.


 


Either Party may
change its address for notices upon giving ten (10) days written notice of
such change to the other Party in the manner provided above.


 


14.7         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.


 


14.8         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.


 


14.9         Third
Party Rights.  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, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any covenant, condition or other provision
contained herein.


 


14.10       Amendment.  This Agreement may not be modified or amended
except by a written instrument executed by or on behalf of each of the Parties
to this Agreement.


 


14.11       Entire
Agreement.  This Agreement and the
applicable provisions of the Confidentiality Agreement, which are incorporated
herein and made a part hereof, together with the Exhibits 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.


 


14.12       Choice
of Law.  [***].


 


14.13       Jurisdiction;
Venue.  [***].


 


17





















 


14.14       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.


 


14.15       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.


 


Signature page follows


 


18





















 


IN WITNESS WHEREOF, this
Agreement has been duly executed by and on behalf of the Parties hereto as of
the Effective Date.


 


 


	
  MICRON TECHNOLOGY, INC.

  	
  IM FLASH TECHNOLOGIES, LLC

  
	
   

  	
   

  
	
  By:

  	
  /s/ STEVEN R. APPLETON

  	
   

  	
  By:

  	
  /s/ DAVID A. BAGLEE

  	
   

  
	
  Name: Steven R. Appleton

  	
  Name: David A. Baglee

  
	
  Title: Chief Executive Officer and
  President

  	
  Title: Authorized Officer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ RODNEY MORGAN

  	
   

  
	
   

  	
  Name: Rodney Morgan

  
	
   

  	
  Title: Authorized Officer

  
							



 


THIS IS THE SIGNATURE PAGE FOR THE
MANUFACTURING SERVICES AGREEMENT ENTERED INTO BY AND BETWEEN MICRON TECHNOLOGY,
INC. AND IM FLASH TECHNOLOGIES, LLC


 


19





















 


EXHIBIT A



COMMON 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.


 


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


 


“Approved Business Plan” shall
have the meaning set forth in the Definitions of the LLC Operating Agreement.


 


“Business Continuity Plan”
means a plan to recover the production process in the event of a natural
disaster or any other event that disrupts the production process.


 


“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.


 


“Confidentiality Agreement”
means that Mutual Confidentiality Agreement by and among the Joint Venture
Company, Intel and Micron dated as of the Effective Date.


 


“Confidential Information” shall
have the meaning set forth in Section 10.1 hereof.


 


“Cycle-Time”
means the time required to process a unit through a portion of the production
process (e.g., FAB, assembly, or final test) or through the production process
as a whole.


 


“Demand Forecast”
shall have the meaning set forth in Section 5.1(a).


 


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


 


“Fiscal Quarter”
means any of the four financial accounting quarters within Micron’s Fiscal
Year.


 


“Fiscal Month” means
any of the twelve financial accounting months within Micron’s Fiscal Year.


 


“Fiscal Year”
means the fiscal year of Micron for financial accounting purposes


 


“Flash Memory Integrated Circuit”
shall have the meaning set forth in the LLC Operating Agreement.


 


“Force Majeure Event” shall
have the meaning set forth in Section 14.1, hereof.


 


“GAAP” means
United States generally accepted accounting principles as in effect from time
to time.


 


20





















 


“Governmental Entity”
means any governmental authority or entity, including any agency, board,
bureau, commission, court, department, subdivision or instrumentality thereof,
or any arbitrator or arbitration panel.


 


“Hazardous Materials”
means dangerous goods, chemicals, contaminants, substances, pollutants or any
other materials that are defined as hazardous by relevant local, state,
national, or international law, regulations and standards.


 


“Indemnified Party”
shall mean any of the following to the extent entitled to seek indemnification
under this Agreement: Intel, Micron, the Joint Venture Company, and their
respective Affiliates, officers, directors, employees, agents, assigns and
successors.


 


“Indemnified Losses”
shall mean all direct, out-of-pocket liabilities, damages, losses, costs and
expenses of any nature incurred by an Indemnified Party, including reasonable
attorneys’ fees and consultants’ fees, and all damages, fines, penalties and
judgments awarded or entered against an Indemnified Party, but specifically
excluding any special, consequential or other types of indirect damages.


 


“Indemnifying Party”
shall mean the Party owing a duty of indemnification to another Party with
respect to a particular Third Party Claim.


 


“Intel” means
Intel Corporation, a Delaware corporation.


 


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


 


“Joint
Development Program Agreement” means that certain Joint Development by and between Intel and Micron
dated as of the Effective Date.


 


“Joint Venture Company”
means IM Flash Technologies, LLC, a Delaware limited liability company that is
the subject of the Joint Venture Documents.


 


“Joint Venture Documents”
shall have the meaning set forth in that certain Master Agreement by and
between Intel and Micron.


 


“Joint Venture Equipment”
shall have the meaning set forth in Section 3.1 hereof.


 


“Liquidation Date” shall
have the meaning set forth in the LLC Operating Agreement.


 


“LLC Operating Agreement”
means that Limited Liability Company Operating Agreement of the Joint Venture
Company, LLC between Intel and Micron.


 


“Losses” shall
mean, collectively, any and all insurable
liabilities, damages, losses, costs and expenses (including reasonable
attorneys’ and consultants’ fees and expenses).


 


“Manufacturing Committee”
shall have the meaning set forth in Section 8.6 of the LLC
Operating Agreement.


 


“Manufacturing Plan” shall
have the meaning set forth in Section 11.6.A.1 of the LLC Operating
Agreement.


 


“Manufacturing Services”
shall have the meaning set forth on Schedule 2.1 hereof.


 


“Manufacturing Services Forecast”
shall have the meaning set forth in Section 5.1(b) hereof.


 


21





















 


“Master Agreement”
shall mean that certain Master Agreement by and between Intel and Micron dated November 18,
2005.


 


“Members” means
Micron and Intel.


 


“Micron” means
Micron Technology, Inc., a Delaware corporation.


 


“Micron Equipment”
shall have the meaning set forth in Section 4.1 hereof.


 


“Minority Closing” shall
have the meaning set forth in the LLC Operating Agreement.


 


“MTV Assets”
shall have the meaning set forth in the LLC Operating Agreement.


 


“MTV Lease Agreement” shall
mean that certain MTV Lease Agreement by and between Intel and Micron.


 


“NAND Flash Memory Integrated
Circuit” means a Flash Memory Integrated Circuit, where the
memory cells included in the Flash Memory Integrated Circuit are arranged in
groups of serially connected memory cells (each such group of serially
connected memory cells called a “string”) in which the drain of each memory
cell of a string (other than the first memory cell in the string) is connected
in series to the source of another memory cell in such string, the gate of each
memory cell in such string is directly accessible, and the drain of the
uppermost bit of such string is coupled to the bitline of the memory array.


 


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


 


“Party” and “Parties” shall have the meaning set forth in the Recitals
to this Agreement.


 


“Performance Criteria”
means [***].


 


“Person” means
any neutral person, corporation, joint stock company, limited liability
company, association, partnership, firm joint venture, organization,
individual, business, trust, estate or any other entity or organization of any
kind or character from any form of association.


 


“Price” and “Pricing” shall have the meaning set forth in Schedule 6.5.


 


“Prime Wafer(s)”
means raw silicon wafers.


 


“Probe Testing”
means testing, using a probe test program as set forth in the applicable
Specifications, of a wafer that has completed all processing steps deemed
necessary to complete the creation of the desired NAND Flash Memory Integrated
Circuits in the die on such wafer, the purpose of which test is to determine
how many and which of the die constitute Probed Wafers, Secondary Silicon and
Rejects.


 


“Probed Wafer”
means a Prime Wafer that has been processed to the point of containing NAND
Flash Memory Integrated Circuits organized in multiple semiconductor die and
that has undergone Probe Testing to meet Specification, but before singulation
of said die into individual semiconductor die.


 


“Process Specification”
shall mean those specifications or documents used to describe, characterize,
and define the process by which Prime Wafers become Probed Wafers.


 


22





















 


“Product Designs Development Agreement”
means that Product Designs Development Agreement by and between Intel and
Micron dated as of the Effective Date.


 


“Product Specifications” shall
mean those specifications used to describe, characterize, and define the
quality and performance of NAND Flash Memory Product, including any interim
performance requirements at Probe Testing or back-end testing.


 


“Proposed Loading Plan”
shall have the meaning set forth in Section 5.1(c) hereof.


 


“Provided Inputs”
shall have the meaning set forth in Section 13.4 hereof.


 


“Purchase Order”
shall have the meaning set forth in Section 6.1 hereof.


 


“Quality and Reliability”
means Product quality and reliability standards as set forth in the Product
Specification.


 


“Ramp Plan” means the document which defines the
process and key milestone schedule to build and ramp a silicon fabrication
facility.


 


“Receiving Party” shall
have the meaning set forth in Section 10.1 hereof.


 


“Recoverable Taxes”
shall have the meaning set forth in Section 6.6, hereof.


 


“Secondary Silicon”
shall mean a Prime Wafer that has been processed to the point of containing
NAND Flash Memory Integrated Circuits organized in multiple semiconductor die
and that has undergone Probe Testing (a) would otherwise constitute a
Probed Wafer but for failure to achieve qualification and (b) otherwise
conform to the applicable Secondary Silicon Specifications.


 


“Semiconductor Manufacturing
Technology” shall have the meaning set forth in the Process
Joint Development Program Agreement.


 


“Site(s)” shall
mean the facilities described on Schedule 2.1 hereof.


 


“Standard of Care” shall
have the meaning set forth in Section 9.1 hereof.


 


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


 


“Technology License Agreement”
means that Technology License Agreement by and among the Joint Venture Company,
Intel and Micron dated as of the Effective Date.


 


“Term” shall
have the meaning set forth in Section 13.1 hereof.


 


“Trigger Event”
shall have the meaning set forth in Section 13.4 hereof.


 


“Third Party Claim”
shall mean any claim, demand, action, suit or proceeding, and any actual or
threatened lawsuit, complaint, cross-complaint or counter-complaint,
arbitration 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, by any Person other
than Intel, Micron, the Joint Venture Company and Affiliates of the foregoing,
against an Indemnified Party, in each case alleging entitlement to any
Indemnified Losses pursuant to any indemnification obligation under this
Agreement.


 


“Wafer Map”
shall mean a map in electronic form or other form as mutually agreed of a
Probed Wafers processed by Micron pursuant to this Agreement, such map
depicting the location of each die on the wafer and whether it constitutes a
Product, Secondary Silicon or a Reject.


 


23





















 


“Wafer Start”
shall mean the initiation of Manufacturing Services with respect to a
Prime Wafer.


 


“Warranty Notice Period”
shall have the meaning set forth in Section 9.2 hereof.


 


“Wholly-Owned Subsidiary” shall
have the meaning set forth in the LLC Operating Agreement.


 


“WIP” shall
mean work in process of a Prime Wafer after Wafer Start towards but before
becoming a NAND Flash Memory Wafer.


 


24





















 


SCHEDULES


 




	
  Schedule 2.1

  	
   

  	
  Manufacturing
  Services

  
	
   

  	
   

  	
   

  
	
  Schedule 6.5

  	
   

  	
  Pricing

  






 


25