EX-10.I.S



 



Exhibit 10(i)(S)



Eleventh Amendment to

License and Technical Cooperation Agreement dated 13 November 2002

and

First Amendment to

60 nm Technical Cooperation Agreement dated 29 September 2005



This Agreement is entered into by and between



Nanya Technology Corporation, a company legally established under the laws of
the Republic of China and having its head office at Hwa-Ya Technology Park 669,
Fuhsing 3rd Road, Kueishan, Taoyuan, Taiwan, Republic of China (hereinafter
“NTC”),


and


Infineon Technologies AG, a company legally established under the laws of
Germany and having its head office at St.-Martin-Strasse 53, D-81669 Munich,
Germany (hereinafter “IFX”),


(collectively the “Parties”).


WHEREAS the Parties entered into a License and Technical Cooperation Agreement
for 90 and 70 nm (hereinafter “TCA”)


WHEREAS the Parties entered into a License and Technical Cooperation Agreement
for 60 nm (hereinafter “60 nm TCA”)


WHEREAS the Parties wish to amend the TCA, to reflect an additional rights for
NTC in case that the pre-requisites for such additional rights as defined
within the 4th Amendment of the Joint Venture Agreement get into full force.


NOW THEREFORE, in consideration of the premises and mutual covenants contained
herein, NTC and IFX agree as follows:


A. Modification to TCA



1.     Add the following sentence to Article 12.3 of the TCA


12.3. In addition to Nanya’s rights under Articles 12.3, 12.4, 13.1 and 13.2 to
grant licenses to its Wholly Owned Subsidiaries, Nanya shall be entitled to
grant licenses for 70 nm to any third parties under Foreground Technology and -
but only as a part of such know-how and patent license under the Foreground
Technology – its Foreground Patents, if and when all of the following three
conditions are met: (i) the MP-Affiliate ceases to be an Affiliate of IFX, and
(ii) the 60nm process technology jointly developed by the Parties is not
running at 2,000 wafer starts per month and 30% front-end yield at the Company
at the earlier of five years from the date that the spin-off of the
MP-Affiliate has become effective, or one year after the MP-Affiliate’s site
in Dresden reached 3.000 wafer starts











 



per month and 30% front-end yield, and
(iii) the failure to achieve the conditions of the preceding sub-paragraph (ii)
is attributable to IFX, the MP-Affiliate, or a legal successor of the MP
Affiliate .


2.     Replace Article 14.1. as follows:


14.1. The Parties agree that any Net Income (as determined in accordance with
the definitions set forth in Exhibit 14.1) received by Infineon or Nanya from
third parties for licensing Foreground Technology during the term of the
confidentiality period as per Article 17.2. shall be shared between Infineon
and Nanya in the ratio 2/3 (Infineon) and 1/3 (Nanya). In case the Net Income
received by Infineon from a third party is not in cash, it shall be in
Infineon’s sole discretion to decide whether Nanya’s share is allocated to
Nanya in cash or in such kind as Infineon received.


In case the Net Income received by Nanya from a third Party is not in cash, it
shall be in Nanya’s sole discretion to decide whether Infineon’s share is
allocated to Infineon in cash or in such kind as Nanya received.


The licensing Party shall inform the other Party within sixty (60) days
following the conclusion of a license agreement for Foreground Technology with
a third party and shall provide the other Party with a proposal on the
evaluation of the Net Income, the share payable to the other Party and the due
dates for such payment(s). The Parties shall – on executive level – agree on
the Net Income based on the proposal made by licensing Party. In case the
Parties cannot agree on the Net Income, an independent appraiser (certified
public accountant) shall be employed to render an evaluation opinion, which
shall be binding on the Parties.


B. Modification to 60nm TCA



1.     Add the following sentence to Article 6.3 of the 60 nm TCA



6.3 In addition to Nanya’s rights under Articles 6.3, 6.4, 7.1 and 7.2 to grant
licenses to its Wholly Owned Subsidiaries, Nanya shall be entitled to grant
licenses to any third parties under Foreground Technology and — but only as a
part of such know-how and patent license under the Foreground Technology – its
Foreground Patents if and when all of the following three conditions are met:
(i) the MP-Affiliate ceases to be an Affiliate of IFX, and (ii) the 60nm
process technology jointly developed by the Parties is not running at 2,000
wafer starts per month and 30% front-end yield at the Company at the earlier of
five years from the date that the spin-off of the MP-Affiliate has become
effective, or one year after the MP-Affiliate’s site in Dresden reached 3.000
wafer starts per month and 30% front-end yield, and (iii) the failure to
achieve the conditions of the preceding sub-paragraph (ii) is not attributable
to Nanya or an event of Force Majeure as defined in the Joint Venture Agreement
between the Parties.



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C. General



This Amendment shall become effective as of the date of signature by both
Parties. Unless explicitly amended hereunder, all provisions of the TCA and its
Amendments and of the 60 nm TCA shall be unaffected.




	 	 	 
	Nanya Technology Corporation	 	
Infineon Technologies AG
	 	 	 
	Date: April 4, 2006	 	
Date: April 4, 2006
	 	 	 
	 	 	 
	By: /s/ Joseph Hsieh	 	
By: /s/ Frank Prein
	
	 	


	Name: Joseph Hsieh

Title: Vice President	 	
Name: Frank Prein

Title: Senior Vice President
	 	 	 
	 	 	
By: /s/ Rudolf von Moreau
	 	 	


	 	 	
Name: Rudolf von Moreau

Title: Senior Director






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