Exhibit 10.163


 


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


 


INTEL/MICRON CONFIDENTIAL


 


SUPPLY AGREEMENT


 


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


 


RECITALS


 


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


 


B.            Intel
and the Joint Venture Company (each, a “Party” and
collectively, the “Parties”) desire
the Joint Venture Company to supply Products,
including Secondary Silicon, for Intel in accordance with Intel’s Sharing
Interest upon the terms and subject to the conditions set forth in 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 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 Modified 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(ly)” or
“year(ly)” 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.


 


ARTICLE 2


OBLIGATIONS OF THE JOINT VENTURE COMPANY;


PROCESSES AND CONTROLS


 


2.1           General
Obligations. The Joint Venture Company will (1) supply Product to Intel in
accordance with the purchasing process set forth in Article 4 hereof;
(2) develop its Facilities and operations to meet Capacity according to the
Ramp Plan and the Initial Business Plan, as may be amended thereafter, and the
Operating Plan and the obligations set forth herein, including Sections 2.2,
2.5 and 2.9; (3) supply Products which meet the Specification(s), Price,
Yield, Cycle-Time, and Quality and Reliability as agreed by the Parties; and
(4) operate its Facilities so that Product output from any one Facility matches
the other Facilities in form, fit and function, in accordance with Section
2.14.


 


2.2           Products
to Supply.  The Joint Venture Company
will manufacture, assemble and test Products for Intel in accordance with the
Operating Plan and applicable Specifications, developed in response to Intel’s
Demand Forecast provided to Joint Venture Company in accordance with Article
3 below.


 


2.3           Process
and Design Information.  Intel agrees
to provide to the Joint Venture Company: (i) such process technology or
information as is required to be disclosed under the Joint Development Program
Agreement and the Technology License Agreement; and (ii) design information
reasonably required to manufacture NAND Flash Memory Wafers.


 


2.4           Control; Processes.
The Joint Venture Company and Intel will review Joint Venture Company’s control
and process mechanisms, including but not limited to such mechanisms that are
utilized to ensure that all parameters of the Specification, including the
Performance Criteria, are met or exceeded in the Joint Venture Company’s
manufacture of Products by either the Joint Venture Company or its approved
subcontractor for Intel.  The Parties
agree to work together in good faith to define mutually agreeable control and
process mechanisms including the following: 
[***].


 


2.5           Equipment, Systems, Materials.  Except as provided in other Joint Venture
Documents, the Joint Venture Company shall be responsible for procuring all
manufacturing equipment, tools, automated material handling systems therein and
materials, including Prime Wafers, which are reasonably required for the Joint
Venture Company to achieve the Ramp Plan and the Operating Plan.  The Joint Venture Company shall endeavor to
manage the entire supply chain, including equipment, materials, systems,
maintenance and subcontractors and vendors, to create efficiency and maximize
the Performance Criteria.


 


2.6           Production Masks.  Unless otherwise agreed with Intel, the Joint
Venture Company or its subcontractors will be responsible to obtain, maintain,
repair and replace masks used in the production of Products.  Such masks will only be used in the
production of Products for Intel. 
Production masks will be repaired and replaced solely at mask operations
which have been approved by Intel, which approval shall not be unreasonably
withheld.  [***].


 


2





















 


2.7           Designation of WIP.  [***].


 


2.8           Subcontractors.  The Joint Venture Company may utilize
subcontractors to perform any portion of the manufacture, assembly and test
process in making Products for Intel, subject to all subcontractors being
approved by the Members, which approval shall not be unreasonably
withheld.   The Joint Venture Company
will ensure that all contracts with subcontractors will provide the Joint
Venture Company with the same level of access and controls as set forth in the
Agreement, including Sections 2.4, 2.9, 2.10, 2.11, 2.12 and Article 5.


 


2.9           Staffing.  The Joint Venture Company shall adequately
staff its Facilities and ensure that its subcontractors adequately staff their
facilities to sustain and manage production of Product for Intel, including the
obligations set forth in Section 2.1 and meeting scheduled commitments,
including the Ramp Plan, the Operating Plan and the Performance Criteria.


 


2.10         Business Continuity Plan.  The Joint Venture Company will develop a
process to recover the production process in the event of a natural disaster or
any other event that disrupts the production process or the ability of the
Joint Venture Company to meet its delivery commitments to Intel or satisfy
customer orders.  If requested by Intel,
Joint Venture Company will review its Business Continuity Plan with Intel and
make changes as agreed with Intel, subject to any confidentiality requirements.


 


2.11         [***].  In addition to the quarterly review and
monthly report requirements set forth in Section 3.2 and 3.3, the Joint
Venture Company will promptly notify Intel of [***].


 


2.12         Traceability and Data
Retention.
Intel and the Joint Venture Company shall review the Joint Venture Company’s
process traceability system [***].  The
Joint Venture Company agrees to maintain such data for a minimum of [***]
years.  The Joint Venture Company will
endeavor to provide Intel [***].


 


2.13         Additional Customer
Requirements.  Intel will inform the Joint Venture Company
in writing of any auditable supplier requirements of Intel’s customer relating
to any Facility at which Product is manufactured, assembled or tested.  The Parties will work together in good faith
to resolve such requests.


 


2.14         Transfer; Equivalency
of Operations.  [***].


 


3





















 


ARTICLE 3


PLANNING
MEETINGS AND FORECASTS;


PERFORMANCE
REVIEWS AND REPORTS


 


3.1           Planning
and Forecasting.


 


(a)           Intel
will quarterly provide the Joint Venture Company, in a timeframe to be mutually
agreed by the Parties to meet customer expectations, with a written demand
forecast for [***] ([***]) quarters corresponding to the Joint Venture
Company’s Fiscal Quarters or as may be otherwise agreed between the
Parties.  This demand will include
desired finished product breakout by design id, technology node, wafer as
finished goods or package type (“Demand Forecast”);


 


(b)           The
Joint Venture Company shall furnish Intel with a written response within [***]
([***]) Business Days indicating a response regarding capacity and what portion
of the demand that the Joint Venture Company can commit to meet.  This written response (the “Planning Forecast”) will include:


 


[***].


 


(c)           Based
on the Planning Forecast, the Joint Venture Company shall develop a [***]
([***]) Fiscal Quarter proposed Product loading plan for such period (“Proposed Loading Plan”). The Joint Venture Company shall
provide Intel with the Proposed Loading Plan at least [***] ([***]) Business
Days prior to its review by the Manufacturing Committee.


 


(d)           The
Joint Venture Company will submit the Proposed Loading Plan, Planning Forecast
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 Operating
Plan.


 


3.2           Performance Reviews and Reports.  The Joint Venture Company shall meet with
Intel each quarter to discuss the Performance Criteria and the most recent
monthly report.   The monthly report will
be distributed to Intel monthly, on a date to be agreed by the Parties, and
will include the following information:


 


(a)           Describes [***];


 


(b)           Describes [***];


 


(c)           Describes [***];


 


4





















 


(d)           Describes [***].


 


(e)           Identifies [***].


 


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


 


ARTICLE 4


PURCHASE AND SALE OF PRODUCTS


 


4.1           Product Quantity. Intel shall purchase from
the Joint Venture Company a percentage, equal to Intel’s Sharing Interest (as
the same may change from time to time), of all of the Joint Venture Company’s
output of Products that meet the Specifications.  The Joint Venture Company shall produce all
Products in accordance with the Operating Plan, developed in response to
Intel’s Demand Forecast under Article 3 above.  If Intel fails purchase its full Sharing
Interest of the Joint Venture Company’s output, produced in accordance with the
Operating Plan (“Underloading”), then the
increased Prices associated with such Underloading shall be isolated and
charged solely to Intel, which Intel shall remain solely responsible for
paying.  Notwithstanding the foregoing,
Intel may elect, but is not obligated, to purchase Product in excess of its
Sharing Interest only by mutual agreement of the other Member.  


 


4.2           Secondary Silicon. Any Secondary
Silicon produced by the Joint Venture Company or its subcontractors will be
provided [***] by the Joint Venture Company to the Members in a percentage
equal to Intel’s Sharing Interest (as the same may change from time to
time).  ALL SECONDARY SILICON PROVIDED
HEREUNDER IS PROVIDED “AS IS,” “WHERE IS” WITH ALL FAULTS AND DEFECTS
BASIS WITHOUT WARRANTY OF ANY KIND.


 


4.3           Placement of Purchase Orders. Prior to the commencement
of every Fiscal Quarter or another time period agreed by the Parties in
conjunction with the planning cycle specified in Article 3, the Joint
Venture Company shall place a non-cancelable blanket purchase order in writing
(via e-mail or facsimile transmission) for the quantity of Product to be
supplied by the Joint Venture Company in the following Fiscal Quarter as
indicated in the Operating Plan (each such order, a “Purchase
Order”).  Intel may issue change orders to such Purchase
Orders to reflect changes in the Operating Plan, provided that such changes can
be reasonably accommodated by the Joint Venture Company without disrupting
on-going manufacturing operations.  Intel may also elect to place
out-of-cycle purchase order of Product, including expedited Probed Wafers, to
the Joint Venture Company on an as-needed basis.  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.


 


4.4           Shortfall.  The Joint Venture
Company shall immediately notify Intel in writing of any inability to meet a
Purchase Order commitment to Intel.


 


5





















 


4.5           Acceptance of
Purchase Order. Each Purchase Order that corresponds to the Operating Plan
in the manner contemplated by Section 4.3 and, and is otherwise free of
errors, shall be deemed accepted by the Joint Venture Company upon receipt and
shall be binding on the Parties, to the extent not inconsistent with the
Operating Plan.


 


4.6           Content of Purchase Orders. Each Purchase Order shall
specify the following items:


 


(a)           Purchase Order number;


 


(b)           Description and part number of each Product;


 


(c)           Forecasted quantity of each different Product and the
Sharing Interest portion thereof for the calendar month;


 


(d)           Forecasted unit Price and total forecasted Price for each
different Product, and total forecasted Price for all Products ordered;


 


(e)           Level of Probe Testing;


 


(f)            Marking specification and packaging requirements;


 


(g)           Requested delivery date;


 


(h)           Place of delivery; and


 


(i)            Other terms (if any).


 


4.7   Taxes.


 


(a)           General.  All sales, use and other transfer taxes
imposed directly on or solely as a result of the supplying of Products and the
payments therefor provided herein shall be stated separately on the Joint
Venture Company’s invoice, collected from Intel and shall be remitted by the
Joint Venture Company to the appropriate tax authority (“Recoverable
Taxes”), unless Intel provides valid proof of tax exemption prior to
the effective date of the transfer of the Products or otherwise as permitted by
law prior to the time the Joint Venture Company is required to pay such taxes
to the appropriate tax authority. 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 Intel is required by law, the Joint
Venture Company shall have sole responsibility for payment of said taxes to the
appropriate tax authorities. In the event such taxes are Recoverable Taxes and
the Joint Venture Company does not collect tax from Intel or pay such taxes to
the appropriate governmental entity on a timely basis, and is subsequently
audited by any tax authority, liability of Intel 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 Intel, and each Party is responsible 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 Intel is prohibited by law
from making payments to the Joint Venture Company unless Intel deducts or
withholds taxes therefrom and remits such taxes to the local taxing
jurisdiction, then Intel shall duly withhold and remit such taxes and shall 


 


6





















 


pay to the Joint Venture Company the remaining net amount after the
taxes have been withheld.  Such taxes
shall not be Recoverable Taxes and Intel shall not reimburse the Joint Venture
Company for the amount of such taxes withheld.


 


4.8           Invoicing; Payment.   The Joint Venture Company shall invoice
Intel on a monthly basis for the Price of the Products provided and all
overhead, interest, general and administrative and other costs, including all
start-up costs for Facilities which shall be split between the Members based on
Sharing Interest.  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 Intel shall pay the Joint Venture Company for the amounts
due, owing, and duly invoiced under this Agreement within [***] ([***]) days following delivery of an
invoice therefore to such place as the Joint Venture Company may reasonably
direct therein.


 


4.9           Payment to Subcontractors.  The Joint Venture Company shall be
responsible for and shall hold Intel harmless for any and all payments to its
vendors or subcontractors utilized in the performance of this Agreement.


 


4.10         Delivery, Title and Risk of
Loss. The
Joint Venture Company, in order to ensure timely and complete shipment of
Products to Intel, shall arrange for and pay for all shipping charges,
insurance, taxes, customs charges and any fees and duties in connection with
such shipment.  The Joint Venture Company
shall hold title to and risk of loss of Products under this Agreement,
including WIP held by subcontractors, until tender to the carrier, at which
time title and risk of loss and damage to Products shall transfer to Intel.


 


4.11         Packaging. All shipment packaging of
the Products shall be in conformance with the Specifications, the Intel’s
reasonable instructions, and general industry standards, and shall be resistant
to damage that may occur during transportation. Marking on the packages shall
be made by Joint Venture Company in accordance with Intel’s reasonable
instructions.


 


4.12         Shipment.  All Products shall be prepared for shipment
in a manner that: (i) follow good commercial practice; (ii) is acceptable to
common carriers for shipment at the lowest rate; and (iii) is adequate to
ensure safe arrival.  The Joint Venture
Company shall mark all containers with necessary lifting, handling, and
shipping information, Purchase Order number, date of shipment, and the names of
the Intel and applicable customer.  If no
instructions are given, the Joint Venture Company shall select the most price
effective carrier, given the time constraints known to the Joint Venture
Company.   At Intel’s request, the Joint
Venture will provide drop-shipment of Products to Intel’s customers.  Such shipment service may be provided by a
subcontractor to the Joint Venture Company provided that title remains with the
Joint Venture Company and then passes to Intel upon tender to the carrier.


 


4.13         Customs Clearance.  Upon Intel’s request, the Joint Venture
Company will promptly provide Intel with a statement of origin for all Products
and with applicable customs documentation for Products wholly or partially
manufactured outside of the country of import.


 


ARTICLE 5


VISITATIONS, AUDITS


 


5.1           Visits. The Joint Venture Company
will support Intel’s reasonable requests for visits to Facilities and meetings
for the purpose of reviewing performance of production of Products
including requests for further information and assistance in troubleshooting
performance issues.
Such requests shall 


 


7





















 


be reasonably granted by the Joint Venture
Company so long as such visits and meetings do not unduly interfere with the
Joint Venture Company’s operations and business affairs.


 


5.2           Audit.  Intel representatives and key customer
representatives, upon Intel’s request, shall be allowed to visit the Joint
Venture Company’s Facilities during normal working hours upon reasonable
advanced written notice to the Joint Venture Company for the purposes of monitoring
production processes and compliance with any requirements set forth in this
Agreement and the Specifications.  Upon
completion of the audit, the Joint Venture Company and Intel will agree to an
audit closure plan, to be documented in the audit report issued by Intel.


 


5.3           Financial Audit.  Intel reserves the right to have the Joint
Venture Company’s books and records related to the Pricing hereunder inspected
and audited not more than [***] during any Fiscal Year to ensure compliance
with Schedule 4.8 of this Agreement in regards to Pricing.  Such audit
will be performed by an independent third party auditor acceptable to both
Parties at Intel’s expense.  Intel shall
provide [***] ([***]) days advance written notice to the Joint Venture Company
of its desire to initiate an audit and the audit shall be scheduled so that it
does not adversely impact or interrupt the Joint Venture Company’s business
operations. If the audit reveals any material discrepancies, the Joint Venture
Company or Intel 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 be limited to
discrepancies identified by the audit. 
Notwithstanding the foregoing, any auditor reports shall not disclose
any the Joint Venture Company pricing or terms of purchase for any purchases of
materials or equipment hereunder to Intel, absent written agreement from the
Members’ respective legal counsel.  If
any audit reveals a material discrepancy, Intel may increase the frequency of
such audits to [***] for the subsequent [***] ([***]) month period.


 


5.4           Subcontractor; Vendor Visits. The Joint Venture Company
will use commercially reasonable efforts to ensure that all contracts with
vendors and subcontractors will provide the Joint Venture Company and Intel
with the right to visit and audit rights similar to those set forth in this Article
5.


 


ARTICLE 6


WARRANTY; HAZARDOUS MATERIALS; DISCLAIMER


 


6.1           Product Warranty. The Joint Venture Company
makes the following warranties regarding Products furnished hereunder, which
warranties shall survive any delivery, inspection, acceptance, payment, or
resale of the Products:


 


(a)           Products conform to all agreed Specifications;


 


(b)           Products are free from defects in materials or workmanship;
and


 


(c)           The Joint Venture Company has the necessary right, title,
and interest to provide Products to the Joint Venture Company and the Products
will be free of liens and encumbrances, not including any implied warranty of
non-infringement.


 


6.2           Warranty Claims. [***].


 


8





















 


6.3           Inspections.
Member may, upon reasonable advance written notice, request samples of Products
(including WIP) during production for purposes of determining compliance with
the requirements and Specification(s) hereunder, provided that the provision of
such samples shall not materially impact the Joint Venture Company’s
performance to the Operating Plan 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; (ii) included in the pricing;
and (iii) included in any performance requirements, if any.  The Joint Venture Company shall provide
reasonable assistance for the safety and convenience of Intel in obtaining the
samples in such manner as shall not unreasonably hinder or delay the Joint
Venture Company’s performance.


 


6.4           Hazardous Materials.


 


(a)           If Products provided hereunder include Hazardous Materials
as determined in accordance with applicable law, the Joint Venture Company
represents and warrants that the Joint Venture Company and the Joint Venture
Company’s employees, agents, and subcontractors actually working with such
materials in providing the Products hereunder to Intel 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 the Joint Venture Company.


 


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


 


6.5           Disclaimer. [***].


 


9





















 


ARTICLE 7

CONFIDENTIALITY; OWNERSHIP


 


7.1           Protection and Use of
Confidential Information.
All information provided, disclosed or obtained in 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.


 


7.2           Masks.  Any masks produced pursuant to this Agreement
will be based on Product designs owned by Intel and shall be treated as
Confidential Information of Intel.


 


7.3           Intellectual Property
Ownership.
Ownership of any intellectual property developed by the Joint Venture Company
will be governed by the Technology License Agreement or Product Designs
Development Agreement.


 


ARTICLE 8


INDEMNIFICATION


 


8.1           Mutual
General Indemnity. [***].


 


8.2           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 [***] 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 


 


10





















 


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.


 


(a)           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.


 


(b)           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 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 


 


11





















 


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
9


LIMITATION
OF LIABILITY


 


9.1           Damages Limitation. [***].


 


9.2           THE PARTIES AGREE THAT
TO THE EXTENT A CLAIM ARISES UNDER THIS AGREEMENT, THE CLAIM SHALL BE BROUGHT
UNDER THIS AGREEMENT.


 


9.3           Damages
Cap.  [***].


 


9.4           Exclusions and Mitigation. Section 9.1 and 9.3
will not apply to either Party’s breach of ARTICLE 7.  Section
9.3 will not
apply to Intel’s failure to meet either an Underloading charge under Section
4.1 or a payment obligation which is due and payable under this
Agreement.  Each Party shall have a duty
to use commercially reasonable efforts to mitigate damages for which the other
Party is responsible.


 


9.5           Losses.  Except
as provided under Section 8.1, the Joint Venture Company and Intel
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 Intel 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.  


 


12





















 


Notwithstanding
the foregoing, in the event of a loss hereunder involving a property, transit
or crime event or occurrence that: (i) is insured under Intel’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 10


TERM AND TERMINATION;


SUPPLY OBLIGATIONS FOLLOWING LIQUIDATING
EVENT


 


10.1         Term. The term of this Agreement
commences on the Effective Date and continues in effect until the first to
occur of (a) [***] or (b) [***] (such period of time, the “Term”).


 


10.2         Termination. This Agreement may not be
terminated for any reason, including breach by a Party, before termination
pursuant to Section 10.1.


 


10.3         Masks.  On the Liquidation Date, the Joint Venture
Company shall immediately transfer possession of production masks possessed by
it at each Facility to the Intel that then owns that Facility as of the
Liquidation Date.


 


10.4         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 2.12, 6.2, 6.5, and Articles 4, 7,
8, 9, 10 and  11.


 


10.5         Supply Obligations Following
Liquidating Event.  Upon the occurrence of a Liquidating Event
any supply obligations of the Parties will be as set forth in Article 13
of the LLC Operating Agreement.


 


ARTICLE 11


MISCELLANEOUS


 


11.1         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


 


13





















 


unlawful; (e)
failures or fluctuations in electrical power or telecommunications service or
equipment; and (f) delays caused by the other Party’s nonperformance hereunder.


 


11.2         Specific Performance.  The Parties agree that irreparable damage
will result if this Agreement is not performed in accordance with its terms,
and the Parties agree that any damages available at law for a breach of this
Agreement would not be an adequate remedy. 
Therefore, the provisions hereof and the obligations of the Parties
hereunder shall be enforceable in a court of equity, or other tribunal with
jurisdiction, by a decree of specific performance, and appropriate preliminary
or permanent injunctive relief may be applied for and granted in connection
therewith.  Such remedies and all other
remedies provided for in this Agreement shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies that a Party may have
under this Agreement.


 


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


 


11.4         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 this Agreement and the performance of a Party’s rights hereunder.


 


11.5         Notice. 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):


 


	
   

  	
  In the case of the 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:

  
	
   

  	
  Micron Technology, Inc.

  
	
   

  	
  8000 S. Federal Way

  Boise, Idaho 83707-0006

  Attention: General Counsel

  Facsimile Number: (208)368-4540

  
	
   

  	
   

  
	
   

  	
  In the case of Intel Corporation:

  
	
   

  	
  Intel Corporation

  
	
   

  	
  2200 Mission College Blvd.

  
	
   

  	
  Mail-Stop SC4-203

  
	
   

  	
  Santa Clara, California 95054

  
	
   

  	
  Attention: General Counsel

  
	
   

  	
  Facsimile Number: (408) 653-8050

  
					



 


14





















 


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.


 


11.6         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.


 


11.7         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.


 


11.8         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.


 


11.9         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.


 


11.10       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.


 


11.11       Choice of Law. [***].


 


11.12       Jurisdiction; Venue. [***].


 


11.13       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.


 


15





















 


11.14       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.


 


11.15       Insurance.  Without limiting or qualifying the Joint
Venture Company’s liabilities, obligations, or indemnities otherwise assumed by
the Joint Venture Company pursuant to this Agreement, the Joint Venture Company
shall maintain, at no charge to Intel, with companies acceptable to Intel:


 


(a)           Commercial General Liability with limits of liability not less than $[***]
per occurrence and including
liability coverage for bodily injury or property damage (1) assumed in a
contract or agreement pertaining to The Joint Venture Company’s business and
(2) arising out of The Joint Venture Company’s products, Services, or
work.  The Joint Venture Company’s
insurance shall be primary with respect to liabilities assumed by The Joint
Venture Company in this Agreement to the extent such liabilities are the
subject of The Joint Venture Company’s insurance, and any applicable insurance
maintained by Intel shall be excess and non-contributing.  The above coverage shall name Intel as
additional insured as respects The Joint Venture Company’s work or services
provided to or on behalf of Intel.


 


(b)           Automobile Liability Insurance with limits of liability not less than $[***]
per accident for bodily injury or
property damage.


 


(c)           Statutory Workers’ Compensation coverage, including a Broad Form All
States Endorsement in the amount required by law, and Employers’ Liability
Insurance in the amount of $[***] per occurrence.  Such insurance
shall include mutual insurer’s waiver of subrogation.


 


[Signature page follows]


 


16





















 


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


 


	
  INTEL
  CORPORATION

  	
  IM FLASH
  TECHNOLOGIES, LLC

  
	
  By:

  	
  /s/ BRIAN L. HARRISON

  	
   

  	
  By:

  	
  /s/ DAVID A. BAGLEE

  	
   

  
	
  Name: Brian L. Harrison

  	
  Name: David A. Baglee

  
	
  Title: Vice President and
  General Manager,

  Flash Memory Group

  	
  Title: Authorized Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ RODNEY MORGAN

  	
   

  
	
   

  	
  Name: Rodney Morgan

  
	
   

  	
  Title: Authorized Officer

  
									



 


THIS IS THE SIGNATURE PAGE FOR THE SUPPLY
AGREEMENT ENTERED INTO BY AND BETWEEN INTEL CORPORATION AND IM FLASH
TECHNOLOGIES, LLC


 


17





















 


EXHIBIT A


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
LLC Operating Agreement.


 


“Assembly
Outs” shall mean a Product for which the Assembly
Services have been completed and meets all of the Assembly Specification
applicable at such time and is not Secondary Silicon or Rejects.


 


“Boise Supply Agreement” means that certain Boise Supply
Agreement by and between Micron and the Joint Venture Company dated as of the
Effective Date.


 


“Business Continuity Plan” shall have the meaning set forth in
Section 2.8 hereof.


 


“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.


 


“Capacity” means the rate of output (defined in terms of units per time period),
at a particular point in time, at which a particular Facility or set of
Facilities of the Joint Venture Company (or of a third party on the Joint
Venture Company’s behalf) is capable of producing such units.


 


“Confidential
Information”
shall have the meaning set forth in Section 7.1 hereof.


 


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


 


“Custom Products” shall have the meaning set forth in the Product Designs Committee
Agreement.


 


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


 


“Demand Forecast” shall have the meaning set forth in Section 3.1(a) hereof.


 


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


 


“Excursion” means an occurrence, either during production or after customer
delivery that is outside normal historical behavior as established by both
Parties in writing in the applicable Specifications which may impact
performance, Quality and Reliability, or customer delivery commitments for
Probed Wafers, NAND Flash Memory Product or Known Good Die.


 


18





















 


“Facilities” shall mean all of the Joint Venture Company’s facilities at which it
may perform manufacturing, assembly or test services, including subcontractors.


 


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


 


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


 


“Fiscal Year”
means the fiscal year of the Joint Venture Company 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 11.1.


 


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


 


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


 


“Joint
Venture Documents” shall have the meaning set forth in
the Master Agreement.


 


“Known Good Die” means a raw wafer that has been processed to
the point of containing functional and/or operational NAND Flash Memory
Integrated Circuits that has undergone Probe Testing


 


19





















 


(a.k.a. “Sort” procedure), meeting predefined performance and quality
criteria and singulated to individual semiconductor die.  Die will have been fully tested but will not
been assembled into final packaging or undergone final product testing.


 


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


 


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


 


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


 


“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 the
LLC Operating Agreement.


 


“Master Agreement” means that certain Master Agreement by and between Intel and Micron as
defined in the LLC Operating Agreement.


 


“Members” means Micron and Intel.


 


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


 


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


 


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


 


“MTV Lease Agreement” means that certain MTV Lease Agreement by and between the Joint
Venture Company and Micron dated as of the Effective Date.


 


“NAND
Flash Memory Integrated Circuit” means a Flash Memory
Integrated Circuit, in 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.


 


“NAND Flash Memory Wafer” means a raw 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,
but before singulation of said die into individual semiconductor die.


 


“Operating Plan” means the Manufacturing Plan, Assembly Plan and Testing Plan developed
pursuant to the Definitions in the LLC Operating Agreement.


 


“Optional Purchase Agreement” means that certain Optional Purchase
Agreement dated as of the Effective Date.


 


20





















 


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


 


“Performance
Criteria” means [***].


 


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


 


“Planning
Forecast”
shall have the meaning set forth in Section 3.1(b) hereof.


 


“Price”
or “Pricing” means the calculation set
forth on Schedule 4.8 hereof.


 


“Prime Wafer” means the raw silicon wafers required, on a product-by-product basis,
for the manufacturer.


 


“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.


 


“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, but before singulation of said die into
individual semiconductor dice.


 


“Product Designs Committee Agreement” means that certain Product Designs
Committee Agreement by and between Micron and the Joint Venture Company dated
as of the Effective Date.


 


“Product Designs Development Agreement” means that certain Product Designs
Development Agreement by and between Micron and the Joint Venture Company dated
as of the Effective Date.


 


“Products” means a Probed Wafer, Known Good Die, or NAND Flash Memory Product, or
such other products that are manufactured by the Joint Venture Company under
Section 2.2 hereof.


 


“Proposed Loading Plan”
shall have the meaning set forth in Section 3.1 hereof.


 


“Purchase Order” shall have the meaning set forth in Section 4.3 hereof.


 


“Quality and Reliability” or “Q&R” means
building and sustaining relationships which assess, anticipate, and fulfill the
quality and reliability standards as set forth in the Specification or
Operating Plan for Products.


 


“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 7.1 hereof.


 


“Recoverable Taxes”
shall have the meaning set forth in Section 4.7 hereof.


 


“Secondary Silicon”
shall mean: (i) a Prime Wafer that has been processed to the point of 


 


21





















 


containing NAND Flash Memory Integrated
Circuits organized in multiple semiconductor die and that has undergone Probe
Testing would otherwise constitute a Probed Wafer but for failure to achieve
qualification; or (ii) singulated and/or packaged die that would otherwise
constitute Assembly Outs or Test Outs but for failure to achieve qualification;
and otherwise conform to the applicable Secondary Silicon Specification.


 


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


 


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


 


“Specifications” means those specifications used to describe, characterize, and define
the quality and performance of NAND Flash Memory Products and Known Good Die,
including any interim performance specifications at Probe Testing or other
testing, as such specifications may be determined from time to time by the
Joint Venture Company.


 


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


 


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


 


“Term” shall have the meaning set forth in Section 11.1 hereof.


 


“Test Outs” shall mean a Product Candidate for which Testing Services
have been completed and meets all of the Testing Specification applicable at
such time and is not Secondary Silicon or Rejects.


 


“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, 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.


 


“Under-loading” shall have the meaning set forth in Section 4.1.


 


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


 


“Warranty Claim Period” shall have the meaning set forth in Section 6.2 hereof.


 


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


 


“WIP” means work in process.  This
includes all wafers and Product in wafer fabrication, sort, assembly, and/or
final test, including prime and secondary wafers, and all completed Product
units not yet delivered to Intel.


 


“Yield” means anticipated output of Product from WIP at a particular point in
time, including line yield, die yield, assembly yield and final testing yield.


 


22





















 


SCHEDULES


 




	
  Schedule 4.8

  	
   

  	
  Price

  






 


23