Exhibit 10.160


 










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


 


INTEL/MICRON
CONFIDENTIAL


 


PRODUCT DESIGNS ASSIGNMENT
AGREEMENT


 


This PRODUCT DESIGNS ASSIGNMENT AGREEMENT
(“Agreement”) is made and entered into as
of this 6th day of January, 2006 (“Effective Date”),
by and between Intel Corporation, a Delaware corporation (“Intel”),
and Micron Technology, Inc., a Delaware corporation (“Micron”).  (Micron and
Intel are referred to in this Agreement individually as a “Party”
and collectively, as the “Parties.”)


 


RECITALS


 


A.                                   Micron
has produced certain NAND Flash Memory Designs (as defined hereinafter).


 


B.                                     Micron
and Intel have agreed that Micron will transfer and assign to Intel all of
Micron’s ownership in and to certain NAND Flash Memory Designs (as defined
hereinafter), upon the terms and subject to the conditions of this Agreement.


 


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; 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 below:


 


“Affiliate” means, a Person that directly or indirectly 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.


 


“[***]” shall mean the [***],
if any, from the list set forth in Schedule 5 within the time
period specified therein.


 


“Business Day” means a day that is not a
Saturday, Sunday or other day on which commercial banking institutions in the
State of Delaware 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.


 


“Controller Supporting Materials” shall
have the meaning set forth in Section 3.1(b).


 


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


 


“Flash Memory Integrated Circuit” means
a non-volatile memory integrated circuit that contains memory cells that are
electrically programmable and electrically erasable whereby the memory cells
consist of one or more transistors that have a floating gate, charge-trapping
regions or any other functionally equivalent structure utilizing one or more
different charge levels (including binary or multi-level cell structures) with
or without any on-chip control, I/O and other support circuitry.


 


“Force Majeure Event” means the
occurrence of an event or circumstance beyond the reasonable control of a Party
and includes, without limitation, (a) explosions, fires, flood,
earthquakes, catastrophic weather conditions, or other elements of nature or
acts of God; (b) acts of war (declared or undeclared), acts of terrorism,
insurrection, riots, civil disorders, rebellion or sabotage; (c) acts of
federal, state, local or foreign governmental 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 or third-party nonperformance (except for delays
caused by a Party’s subcontractors or agents).


 


“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.


 


 “In-Process
Designs” means those Pre-existing Product Designs listed on Schedule 1
indicated as “In-Process.”


 


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


 


“[***]” means
that [***].


 


“IP Rights” means copyrights, trade
secrets, Mask Work Rights and registrations of any of the foregoing anywhere in
the world.


 


“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” means that
certain Master Agreement by and between the Parties dated November 18,
2005 and each agreement referenced therein (whether directly or indirectly
through reference in any of such referenced agreements).


 


2





















 


“LLC Operating Agreement” means the
Limited Liability Company Operating Agreement, dated as of the Effective Date,
by and between the Parties.


 


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


 


“Mask Work Rights” means rights under
the United States Semiconductor Chip Protection Act of 1984, as amended from
time to time, and under any similar counterpart laws in countries other than
the United States.


 


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


 


“Missing Materials” shall have the
meaning set forth in Section 2.4.


 


“NAND Controller” means a discrete
integrated circuit device that controls the data input and output to/from the
memory array of the NAND Flash Memory Die.


 


“NAND Flash Memory Design” means, with
respect to a NAND Flash Memory Die, the corresponding design components,
materials and information listed on Schedule 2, and all IP Rights
in and to those design components, materials and information listed on Schedule 2.  Notwithstanding anything to the contrary in
the foregoing, NAND Flash Memory Design shall not include any Patent Rights.


 


“NAND Flash Memory Die”
means a discrete integrated circuit die, wherein such die includes at least one
NAND Flash Memory Integrated Circuit and such die is designed, developed,
marketed and used primarily as a non-volatile memory die.


 


“NAND Flash Memory Die
Package” means a discrete integrated circuit package for a NAND
Flash Memory Die, including TSOP, COB, BOC, BGA and FBGA or other type package,
wherein such package contains only one or more NAND Flash Memory Die but no
other die.


 


“NAND Flash Memory Integrated Circuit”
means a Flash Memory Integrated Circuit wherein 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” means any
NAND Flash Memory Wafer, NAND Flash Memory Die or NAND Flash Memory Die
Package.


 


“NAND Flash Memory Wafer” means a prime
wafer that has been processed to the point of containing multiple NAND Flash
Memory Die and that has undergone Probe Testing, but before singulation of said
die into individual semiconductor die.


 


3





















 


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


 


“Patent Rights” means any and all issued
and unexpired patents and pending patent applications in any country in the
world, together with any and all divisionals, continuations,
continuations-in-part, reissues, reexaminations, extensions, foreign
counterparts or equivalents of any of the foregoing, wherever and whenever
existing.


 


“Permitted Affiliate” means, with
respect to a Party, any Affiliate of such Party except to the extent otherwise
agreed by Intel and Micron in any other Joint Venture Document (such exception
being applicable only while any applicable term(s) of the Joint Venture
Documents remain in effect).


 


“Person” means any natural 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.


 


“Pre-existing Product Designs” means the
NAND Flash Memory Designs, as and to the extent that each element thereof
exists on the Effective Date, for each of the NAND Flash Memory Products listed
on Schedule 1.


 


“Probe Testing” means testing, using a
wafer test program as set forth in the applicable Specifications, of a wafer
that has completed all processing steps deemed necessary to complete the creation
of the desired 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 meet
the applicable criteria for such die set forth in the Specifications.


 


“Publicly Available Software” means (a) any
Software that contains, or is derived in any manner (in whole or in part) from,
any Software that is distributed as free Software, open source Software (e.g. Linux) or similar licensing or distribution models; and
(b) any Software that requires as a condition of use, modification and/or
distribution of such Software that such Software or other Software incorporated
into, derived from or distributed with such Software (i) be disclosed or
distributed in source code form, (ii) be licensed for the purpose of
making derivative works, or (iii) be redistributable at no charge.  Publicly Available Software includes Software
licensed or distributed under any of the following:  (1) GNU’s General Public License (GPL)
or Lesser/Library GPL (LGPL); (2) the Artistic License (e.g., PERL); (3) the Mozilla Public License; (4) the
Netscape Public License; (5) the Sun Community Source License (SCSL); (6) the
Sun Industry Source License (SISL); and (7) the Apache Software license.


 


“Software” means computer program
instruction code, whether in human-readable source code form, machine-executable
binary form, firmware, scripts, interpretive text, or otherwise.  For avoidance of doubt, Software does not
include databases and other information stored in electronic form, other than
executable instruction codes or source code that is intended to be compiled
into executable instruction codes.


 


“Specifications” means those
specifications used to describe, characterize, and define the quality,
functionality and/or performance of any NAND Flash Memory Die, including any
interim performance requirements at Probe Testing or other testing.


 


4





















 


“Supporting Materials” means, with
respect to each NAND Flash Memory Design, those things set forth on Schedule 3
solely as and to the extent (a) such things exist on the Effective Date, (b) they
are either owned by Micron or are licensed to Micron with the right to
sublicense without any further payment to any Third Party, and (c) Micron
is not prohibited by Applicable Law or contractual restriction from disclosing
or licensing as contemplated under this Agreement.


 


“Tangible Design Package” shall have the
meaning set forth in Section 2.3 below.


 


“Term” shall have the meaning set forth in
Section 8.1.


 


“Third Party” means any Person other
than Micron or Intel.


 


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 accounting term
not otherwise defined in this Agreement has the meaning commonly applied to it
in accordance with GAAP, (3) words in the singular include the plural and
visa versa, (4) the term “including” means “including without limitation,”
and (5) 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.


 


(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.


 


ARTICLE 2


 


PRE-EXISTING DESIGNS


 


2.1                                 Assignment.  Subject to the terms and conditions of this
Agreement, Micron, on behalf of itself and its Affiliates, hereby  grants, conveys and assigns (and agrees to
cause its Affiliates to grant, convey and assign) to Intel, by execution of
this Agreement (or, where appropriate or required, by execution of separate
instruments of assignment), all right, title and interest that Micron and
Affiliates of Micron have in and to the 
Pre-existing Product Designs and [***], to be
held and enjoyed by Intel and Intel’s successors and assigns.


 


2.2                                 Further
Assurances.  For a period of [***] from the Effective Date, Micron will, without
receiving any further consideration, at the reasonable request of Intel, do
(and cause Affiliates of Micron to do) all lawful and just acts that are
necessary to record and perfect the transfer of ownership to Intel of any IP
Rights in and to the Pre-existing Product Designs and [***],
including execution and acknowledgement of (and causing its Affiliates to
execute and acknowledge) assignments and other instruments in a form reasonably


 


5





















 


required by Intel for each relevant
jurisdiction.  All costs and expenses
associated with recording or perfecting such transfer of ownership shall be borne
solely by Intel.


 


2.3                                 Delivery.  Promptly following the Effective Date, except
for the In-Process Designs, Micron shall deliver to Intel the tangible
information and materials embodying the Pre-existing Product Designs and
Supporting Materials in formats and on storage media mutually agreed to by the
Parties (hereinafter, the “Tangible Design Package”),
in accordance with the delivery protocol set forth on Schedule 6.  Within [***] of the
Effective Date, Micron shall deliver to Intel the datasheets and all errata
thereto (as identified in Schedule 2) associated with the Pre-existing
Product Designs other than the In-Process Designs.


 


2.4                                 Missing
Materials.  If within [***] of the Effective Date, Intel identifies any
information, documents or any other materials that is/are missing from the
Tangible Design Package (“Missing Materials”)
subsequent to delivery of the Tangible Design Package by Micron, Intel may
request Micron in writing to deliver the Missing Materials to Intel within a
period of time identified by Intel, and Micron shall deliver such Missing
Materials within such period of time and in accordance with the delivery
protocol set forth on Schedule 6, provided
that:


 


(a)                                  the
period of time identified by Intel for delivery of the Missing Materials is
reasonable considering (i) the nature of those specific Missing Materials,
and (ii) the reason why those Missing Materials were not previously
delivered, and


 


(b)                                 Intel
describes the Missing Materials with a degree of specificity that Micron is
reasonably able to ascertain.


 


If Intel identifies any Missing Materials
after the foregoing [***] time
period but before [***] after the
delivery of the Pre-existing Product Designs other than the In-Process Designs,
Intel may request Micron in writing to deliver the Missing Materials to the
Intel within a period of time identified by Intel consistent with foregoing
clauses (a) and (b), and Micron shall use reasonable efforts to deliver
such Missing Materials to the extent in existence at the time of such request in
the form that should have been delivered previously.


 


2.5                                 Training.  During the [***] period
commencing on the Effective Date, Micron will provide a reasonable level of
training to design personnel of Intel regarding the Pre-existing Product
Designs, other than the In-Process Designs, and each such design’s
corresponding Supporting Materials.


 


ARTICLE 3


 


LICENSES AND RESERVATION OF RIGHTS


 


3.1                                 License
to Supporting Materials.


 


(a)                                  Micron
hereby grants to Intel [***],
perpetual, [***], fully paid up, [***], license under all IP Rights owned or licensable by
Micron in the Supporting Materials [***], subject
to the terms and conditions of this Agreement and, for so long as any
applicable term(s) of the Joint Venture


 


6





















 


Documents remain in effect, the applicable
terms of the Joint Venture Documents. 
The foregoing license further includes the [***].  The license granted in the first sentence of
this Section 3.1(a) includes the [***].


 


(b)                                 With
respect to any of the Supporting Materials identified on Schedule 3
indicated as specifically related to a “NAND Controller Board” (“Controller Supporting Materials”), the license under Section 3.1(a) is
[***], but Intel shall not extract or
separate the Controller Supporting Materials from such board or attempt to
reverse engineer or copy such Controller Supporting Materials.


 


(c)                                  With
respect to any of the Supporting Materials identified on Schedule 3 that
constitute an “IBIS model”, the license under Section 3.1(a) includes
the [***].


 


3.2                                 No
Other Rights.  No other rights are
granted hereunder by either Party, by implication, estoppel, statute or
otherwise, except as expressly provided herein. 
Without limiting the generality of the foregoing, (a) Intel agrees
and acknowledges that no rights are granted under this Agreement by Micron to
any Patent Rights, copyright, Mask Work Rights, trade secret, trademark or
other intellectual property right except as expressly granted hereunder with
respect to the Pre-existing Product Designs or the Supporting Materials, and (b) Micron
agrees and acknowledges that no rights are granted under this Agreement by
Intel to any Patent Rights, copyright, Mask Work Rights, trade secret,
trademark or other intellectual property right with respect to the Pre-existing
Product Designs.  [***].


 


3.3                                 Limitation
on Obligation to Disclose or License. 
Anything to the contrary notwithstanding, Micron shall not be obligated
to disclose to Intel (or any other Person) or license to Intel any portion of
the Supporting Materials with respect to which Micron is prevented by
Applicable Law or contractual restriction from so disclosing or licensing or
which would require payment by Micron to any Third Party.  Moreover, use of the NAND Flash Memory
Designs, Tangible Design Package and Supporting Materials may require use of
Software owned by a Third Party for which no rights to use such Software are
conferred by Micron to Intel hereunder. 
Any such Software or hardware required to use the Supporting


 


7





















 


Materials or Tangible Design Package is
solely the responsibility of Intel.  If
Micron determines that it is unable to deliver any of the Supporting Materials
or Tangible Design Package due to the limitations in this Section 3.3,
then Micron will promptly notify Intel of same.


 


ARTICLE 4


 


PRICE AND PAYMENT


 


4.1                                 Price
for Assignment of Product Designs. 
In full consideration for (a) the assignment of the Pre-existing
Product Designs and the delivery of the Tangible Design Package and (b) the
[***], Intel shall pay to Micron on the
Effective Date the respective amounts therefor specified on Schedule 4.  For clarification, in no event shall Intel or
any Affiliate of Intel owe to Micron, Affiliates of Micron, or any other Person
any money in connection with this Agreement beyond the amount specified on Schedule 4.


 


4.2                                 Payments.  All amounts owed under this Agreement are
stated, calculated and shall be paid in United States Dollars ($ U.S.).


 


4.3                                 Taxes.


 


(a)                                  Transfer
of Intangible Rights.  The Parties
agree that any rights transferred pursuant to this Agreement constitute
intangible personal property rights comprised of a copyright interest and/or a
patent interest (as such terms are defined in California Sale and Use Tax
Regulation 1507).  Consequently, this
Agreement is considered to be a “Technology Transfer Agreement” as defined in
California Revenue and Taxation Code section 6012(c)(10) and
California Sale and Use Tax Regulations 1507. 
Because this Agreement represents a transfer of intangible property
rights, and because this Agreement is considered to be a Technology Transfer
Agreement, no sales or use taxes should be imposed by the state of Utah, Idaho
or Virginia, or in California, respectively, on the transfers pursuant to this
Agreement, other than to the value of any tangible personal property included
in such transfer as provided in Section 4.3(b) below, and
neither Party has an obligation under this Agreement to collect or remit sales
or use tax on the transfer of such intangible personal property rights.


 


(b)                                 Tangible
Personal Property Included in Transfers. 
To the extent that the rights transferred pursuant to this Agreement are
transferred through the use of tangible property such as tape or compact disc,
the Parties agree that the amount of any applicable sales or use tax shall be
determined based upon a reasonable determination of fair market value for such
tangible property, and that any and all sales or use tax shall be stated
separately on Micron’s invoice, collected from Intel, and shall be remitted by
Micron to the appropriate tax authority, unless Intel provides valid proof of
tax exemption prior to the effective date or otherwise as permitted by law
prior to the time Micron is required to pay such taxes to the appropriate tax
authority.


 


ARTICLE 5


 


WARRANTIES; DISCLAIMERS


 


5.1                                 Warranties.  Micron represents and warrants to Intel that,
to the best of Micron’s knowledge, as of the Effective Date:


 


8





















 


(a)                                  Micron
has full title to, and ownership of, the [***] and the [***] free
and clear of all liens and has the right to transfer such ownership to Intel;


 


(b)                                 [***];


 


(c)                                  Micron
has the right to transfer the Tangible Design Package to Intel;


 


(d)                                 Micron
has the right to grant the licenses to the Supported Materials granted
hereunder;


 


(e)                                  Micron
has not granted any rights in or to the Pre-existing Product Designs or
Supporting Materials that conflict with the rights granted to Intel under this
Agreement;


 


(f)                                    there
are no unresolved claims, demands or pending litigation relating to the
Pre-existing Product Designs or Supporting Materials; and


 


(g)                                 the
Pre-existing Product Designs and Supporting Materials do not contain any
Publicly Available Software.


 


The foregoing representations and warranties shall terminate as of the
tenth (10th) anniversary of the Effective Date, except for Section 5.1(f),
which shall terminate as of the second (2nd) anniversary of the
Effective Date.  Any claim by Intel that
any representation or warranty was untrue must be made before expiration of the
applicable foregoing time period, otherwise Micron shall have no liability
whatsoever with respect to any such representations and warranties.


 


5.2                                 No
Implied Obligation.  Nothing
contained in this Agreement shall be construed as:


 


(a)                                  a
warranty or representation by either of the Parties to this Agreement as to the
validity, enforceability or scope of any class or type of intellectual property
assigned or licensed hereunder;


 


(b)                                 a
warranty or representation that any manufacture, sale, lease, use or other
disposition of the Pre-existing Product Designs, Tangible Design Package,
Supporting Materials  or any products
based on any of the foregoing will be free from infringement, misappropriation
or other violation of any Patent Rights or other intellectual property rights
other than the intellectual property licensed hereunder;


 


(c)                                  an
agreement to bring or prosecute proceedings against Third Parties for
infringement or conferring any right to bring or prosecute proceedings against
Third Parties for infringement of any of the Supporting Materials;


 


(d)                                 conferring
any right to use in advertising, publicity, or otherwise, any trademark, trade
name or names, or any contraction, abbreviation or simulation thereof, of
either Party; or


 


9





















 


(e)                                  requiring
either Party to defend any proceeding brought by a Third Party challenging or
concerning the validity of the IP Rights in the Pre-existing Product Designs or
Supporting Materials, [***].


 


5.3                                 Disclaimer.  EXCEPT AS PROVIDED IN SECTION 5.1,
MICRON ASSIGNS THE PRE-EXISTING PRODUCT DESIGNS, TRANSFERS THE TANGIBLE DESIGN
PACKAGE AND LICENSES THE SUPPORTING MATERIALS ON AN “AS IS,” “WHERE IS” (BUT
SUBJECT TO MICRON’S DELIVERY OBLIGATIONS UNDER ARTICLE 2) BASIS,
WITH ALL FAULTS AND DEFECTS, AND WITHOUT ANY WARRANTY OF ANY KIND
WHATSOEVER.  WITHOUT LIMITING THE
FOREGOING, EXCEPT AS PROVIDED IN SECTION 5.1, MICRON DISCLAIMS ANY
WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT WITH RESPECT TO THE
FOREGOING.  EXCEPT AS PROVIDED IN SECTION 5.1,
MICRON MAKES NO WARRANTIES WITH RESPECT TO INTEL’S ABILITY TO:  (A) USE ANY OF THE PRE-EXISTING PRODUCT
DESIGNS, TANGIBLE DESIGN PACKAGE OR SUPPORTING MATERIALS, OR (B) MANUFACTURE
OR HAVE MANUFACTURED ANY PRODUCTS BASED THEREON.  [***]. 
SUCH DISCLAIMERS ARE NOT INTENDED TO AFFECT ANY DIRECT CLAIMS OR
REMEDIES INTEL MAY ASSERT AGAINST ANY THIRD PARTY OR PREVENT THE
PASS-THROUGH OR ASSIGNMENT TO INTEL OF ANY RIGHTS MICRON MAY HAVE AGAINST
ANY THIRD PARTY.


 


ARTICLE 6


 


LIMITATION OF LIABILITY


 


6.1                                 LIMITATION
OF LIABILITY.  EXCEPT FOR A BREACH OF
ARTICLE 7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES OR
ANY PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHER THEORY OF LIABILITY. 
THESE LIMITATIONS SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL
PURPOSE OF ANY REMEDY.  THE PARTIES
ACKNOWLEDGE THAT THE LIMITATIONS ON POTENTIAL LIABILITIES SET FORTH HEREIN ARE
AN ESSENTIAL


 


10





















 


ELEMENT IN THE CONSIDERATION PROVIDED BY EACH
PARTY UNDER THIS AGREEMENT.


 


ARTICLE 7


 


CONFIDENTIALITY


 


7.1                                 Confidentiality
Obligations.  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.


 


(a)                                  All
Pre-existing Product Designs and the portions of the Tangible Design Package
related thereto shall be considered “Confidential Information” under the
Confidentiality Agreement for which Micron shall be considered a “Receiving
Party” under such agreement.


 


(b)                                 All
Supporting Materials and the portions of the Tangible Design Package related
thereto shall be considered “Confidential Information” under the
Confidentiality Agreement for which Intel shall be considered a “Receiving
Party” under such agreement.


 


(c)                                  The
terms and conditions of this Agreement shall be considered “Confidential
Information” under the Confidentiality Agreement for which Micron and Intel
shall each be considered a “Receiving Party” under such agreement.


 


7.2                                 Permitted
Disclosures.


 


(a)                                  With
respect to any of the Supporting Materials that constitute an [***] (and that is Confidential Information), Intel or its
sublicensed Permitted Affiliate(s) hereunder [***].


 


(b)                                 Intel
or its sublicensed Permitted Affiliate(s) [***].


 


(c)                                  Intel
or its sublicensed Permitted Affiliate(s) [***].


 


11





















 


(d)                                 With
respect to any “Confidential Information” (as that term is defined in the
Confidentiality Agreement) listed in [***].


 


(e)                                  Intel
shall not and shall cause it Permitted Affiliates not to [***].


 


7.3                                 Conflicts.
 To the extent there is a conflict
between this Agreement and the Confidentiality Agreement, the terms of this
Agreement shall control.


 


ARTICLE 8


 


TERM AND TERMINATION


 


8.1                                 Term.  The term of this Agreement
commences on the Effective Date and continues in effect in perpetuity (such
period of time, the “Term”).


 


8.2                                 No Termination.  This Agreement may not be
terminated for any reason, including breach by a Party.


 


ARTICLE 9


 


MISCELLANEOUS


 


9.1                                 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):


 


If to Intel:


 


Intel Corporation


1900 Prairie City Road


FM3-63


Folsom, CA 95630


Attention: 
[***]


Fax: [***]


 


12





















 


with a copy to:


 


Intel Corporation

2200 Mission College Blvd.


Santa Clara, CA  95054

Attention:  General Counsel


Facsimile:  (408) 653-8050


 


If to Micron:


 


Micron Technology, Inc.

8000 S. Federal Way


Mail Stop 1-507


Boise, ID 
83716

Telephone:     (208) 368-4517


Facsimile:      (208)
368-4537


Attention:       General
Counsel


 


9.2                                 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.


 


9.3                                 Assignment.  This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each Party hereto.  Except as permitted by the Joint Venture
Documents, 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,
without the prior written consent of the nonassigning Party.


 


9.4                                 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.


 


9.5                                 Choice
of Law.  [***].


 


9.6                                 Jurisdiction;
Venue.  [***].


 


13





















 


9.7                                 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.


 


9.8                                 Force
Majeure.  The Parties hereto shall be
excused from any failure to perform any obligation hereunder to the extent such
failure is caused by a Force Majeure Event.


 


9.9                                 Export
Control.  Each Party agrees that it
will not knowingly:  (i) export or
re-export, directly or indirectly, any technical data (as defined by the U.S.
Export Administration Regulations) provided by the other Party or (ii) disclose
such technical data for use in, or export or re-export directly or indirectly,
any direct product of such technical data, including Software, to any
destination to which such export or re-export is restricted or prohibited by
United States or non-United States law, without obtaining prior
authorization from the U.S. Department of Commerce and other competent
Government Entities to the extent required by Applicable Laws.


 


9.10                           Entire
Agreement.  This Agreement, together
with the Schedules attached hereto and the agreements and instruments expressly
provided for herein, and, for so long as any applicable term(s) of the Joint
Venture Documents remain in effect, the applicable terms of the Joint Venture
Documents, 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.


 


9.11                           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.


 


9.12                           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


 


14





















 


IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the Effective Date.


 


 


	
   

  	
  INTEL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ ARVIND
  SODHANI

  	
   

  
	
   

  	
  Name: Arvind
  Sodhani

  
	
   

  	
  Title:

  	
  Senior Vice
  President, Intel Corporation

  
	
   

  	
   

  	
  President,
  Intel Capital

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MICRON
  TECHNOLOGY, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ STEVEN
  R. APPLETON

  	
   

  
	
   

  	
  Name: Steven
  R. Appleton

  
	
   

  	
  Title: Chief
  Executive Officer and President

  
						



 


THIS IS
THE SIGNATURE PAGE FOR THE PRODUCT DESIGNS ASSIGNMENT

AGREEMENT ENTERED INTO BY AND BETWEEN INTEL CORPORATION AND

MICRON TECHNOLOGY, INC.


 


15





















 


SCHEDULES


 




	
  Schedule 1

  	
  Pre-Existing Product Design Designations

  
	
   

  	
   

  
	
  Schedule 2

  	
  NAND Flash Memory Design Materials and
  Information

  
	
   

  	
   

  
	
  Schedule 3

  	
  Supporting Materials

  
	
   

  	
   

  
	
  Schedule 4

  	
  Payments

  
	
   

  	
   

  
	
  Schedule 5

  	
  [***]

  
	
   

  	
   

  
	
  Schedule 6

  	
  Delivery Protocol

  






 


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