exhibit10_73.htm


    
      EXHIBIT
10.73

      


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



NTC/MICRON CONFIDENTIAL


    FACILITATION
AGREEMENT

     

    This
FACILITATION AGREEMENT (the “Agreement”), dated this 26th
day of November, 2008, is made and entered into by and between MICRON
SEMICONDUCTOR B.V. (hereinafter “MNL”), a private limited
liability company organized under the laws of the Netherlands, NANYA TECHNOLOGY
CORPORATION Nanya Technology Corporation
[Translation from Chinese]  (hereinafter “NTC”), a company incorporated
under the laws of the Republic of China, and INOTERA MEMORIES, INC. Inotera Memories Inc.
[Translation from Chinese],  (hereinafter “Joint Venture Company”), a
company incorporated under the laws of the Republic of China.

     

    RECITALS

     

    A.           Micron
and NTC have entered into that certain Joint Venture Agreement, dated of even
date herewith (the “JV
Agreement”), which sets forth certain agreements regarding the ownership,
governance and operation of the Joint Venture Company.

     

    B.           Micron
and NTC desire the Joint Venture Company to enter into this Agreement in order
to fully effectuate the intent of the parties to the JV Agreement.

     

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

     

    1. Joint Venture
Agreement.  The Joint Venture Company shall do, cause to be
done, or otherwise facilitate any actions that, under the following provisions
of the JV Agreement, either (x) the JV Parties have agreed the Joint Venture
Company shall do or (y) the JV Parties have agreed (through commercially
reasonable efforts, best efforts or otherwise) to cause the Joint Venture
Company to do:

     

    (a) Sections
2.1(b) and (c);

     

    (b) Section
2.3 (but with respect to clause (b) of Section 2.3 only compliance with the
provisions of the JV Agreement specifically referenced in this Section
1);

     

    (c) Sections
5.1(e), 5.1(f)(iii), 5.3(d) and (e), 5.4(a) – (c) and 5.5;

     

    (d) Sections
7.1(a) (but subject to obtaining the required approval of the Board of
Directors), 7.2(a) and (c), 7.3, 7.4 and 7.5;

     

    (e) Sections
8.1 – 8.3;

     

    (f) Article
10 (but with respect to Section 10.4, subject to obtaining the required
approvals of the Board of Directors and shareholders of the Joint Venture
Company); and

     

    
      
        
          
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          NTC/MICRON
CONFIDENTIAL  

        

      

    

    (g) Sections
11.1, 11.2, 11.4 and 11.5 (but with respect to Section 11.5, subject to
obtaining any approvals of the shareholders of the Joint Venture Company
required by Applicable Law or the Articles of Incorporation of the Joint Venture
Company).

     

    2. Vice-Chairman.  Subject
to obtaining the required approvals of the Board of Directors and shareholders
of the Joint Venture Company, the Joint Venture Company shall take reasonable
steps as soon as practicable to amend the Articles of Incorporation to provide
that (a) there shall be a Vice-Chairman of the Board of Directors, (b) unless
expressly prohibited by Applicable Law, if the Chairman does not, within one
week (or within three (3) days for convening an emergency meeting of the Board
of Directors), comply with a director’s request for the Chairman to convene a
meeting of the Board of Directors, the Vice-Chairman shall have the right to
convene the meeting of the Board of Directors as requested by such director, and
(c) emergency meetings of the Board of Directors may be convened from time
to time by the Chairman, or (unless expressly prohibited by Applicable Law) the
Vice-Chairman pursuant to the immediately preceding clause (b), by not less than
two (2) Business Days notice in writing.

     

    3. Purchase of
Shares.  Prior to the issuance by the Joint Venture Company of
Shares or any other equity-linked securities of the Joint Venture Company, each
JV Party shall provide to the Joint Venture Company a true and complete list of
the Affiliates of such JV Party as of such date (the “Listed
Affiliates”).  Except as required by Applicable Law, the Joint
Venture Company shall not issue Shares or any other equity-linked security of
the Joint Venture Company, directly or indirectly, to any Listed Affiliate
without the prior written consent of both JV Parties.

     

    4. [***]

     

    5. General
Provisions.

     

    (a) Defined
Terms.  Capitalized terms used herein but not otherwise defined
shall have the meaning ascribed to such terms in the JV Agreement.

     

    (b) Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed duly given upon (i) transmitter’s confirmation of a receipt of a
facsimile transmission, (ii) confirmation of delivery by a standard overnight or
recognized international carrier, or (iii) delivery in person, addressed at the
following addresses (or at such other address for a JV Party as shall be
specified by like notice):

     

    
      
        
          
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          NTC/MICRON
CONFIDENTIAL  

        

      

    

    if to
NTC:

     

    Nanya
Technology Corporation

    Hwa-Ya
Technology Park 669

    Fuhsing 3
RD. Kueishan

    Taoyuan,
Taiwan, ROC

    Attn:  Legal  department

    Facsimile:
886-3-396-2226

    


     

    if to
MNL:

     

    Micron
Semiconductor B.V.

    Naritaweg
165 Telestone 8

    1043BW
Amsterdam

    The
Netherlands

    Attn:  Managing
Director

    Facsimile:  020-5722650

    


     

    with a
mandatory copy to Micron:

     

    Micron
Technology, Inc.

    8000 S.
Federal Way

    Mail Stop
1-507

    Boise, ID
83716

    Attn:
General Counsel

    Facsimile:
(208) 368-4537

    


     

    If to the
Joint Venture Company:

     

    Inotera
Memories, Inc.

    Hwa-Ya
Technology Park

    667,
Fuhsing 3rd
Road

    Kueishan,
Taoyuan

    Taiwan,
R.O.C.

    Attn:
General Counsel

    Facsimile:
886-3-327-2988 Ext. 3385

    


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

     

    (d) Assignment.  [***].

     

    
      
        
          
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          NTC/MICRON
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    (e) Amendment.  This
Agreement may not be amended or modified without the written consent of the
parties hereto.

     

    (f) 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.

     

    (g) Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the ROC, without giving effect to its conflict of
laws principles.

     

    (h) Jurisdiction;
Venue.  Any suit, action or proceeding seeking to enforce any
provision of, or based on any matter arising out of or in connection with, this
Agreement shall be brought in the Taipei District Court, located in Taipei,
Taiwan, and each of the parties hereto consents and submits to the exclusive
jurisdiction of such court (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding and irrevocably waives, to the fullest
extent permitted by Applicable Law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding which is brought in any
such court has been brought in an inconvenient forum.

     

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

     

    (j) Entire
Agreement.  This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral and written, between the parties
hereto with respect to the subject matter hereof.

     

    (k) 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 and effect in all other respects.  Should any provision of
this Agreement be or become ineffective because of changes in Applicable Law 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.

     

    (l) 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
PAGES FOLLOW]


    
      
        
          DLI-6217912v6


        

         


      

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

     

    


      
        	 
      	
                NANYA
      TECHNOLOGY CORPORATION

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Jih Lien

              
	 
      	 
      	
                Jih
      Lien

              
	 
      	 
      	
                President

              


      






    THIS IS A
SIGNATURE PAGE FOR THE FACILITATION AGREEMENT

    ENTERED
INTO BY AND BETWEEN NTC, MNL

    AND THE
JOINT VENTURE COMPANY


    
      
        
          DLI-6217912v6


        

         


      

      
        
        

        
          

        

      

      
         


      

    


    


    



      
        	 
      	
                MICRON
      SEMICONDUCTOR B.V.

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Thomas L. Laws

              
	 
      	 
      	
                Thomas
      L. Laws

              
	 
      	 
      	
                Managing
      Director A

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Stefan Boermans / Clemens van den
      Broek

              
	 
      	 
      	
                Name:                      Stefan
      Boermans  /  Clemens van den Broek

              
	 
      	 
      	
                Title                      Trust
      International Management (T.I.M.) B.V.

              
	 
      	 
      	
                Managing
      Director B

              


      





    THIS IS A
SIGNATURE PAGE FOR THE FACILITATION AGREEMENT

    ENTERED
INTO BY AND BETWEEN NTC, MNL

    AND THE
JOINT VENTURE COMPANY


    
      
        
          DLI-6217912v6


        

         


      

      
        
        

        
          

        

      

      
         


      

    


    


      
        	 
      	
                INOTERA
      MEMORIES, INC.

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Joseph Hsieh

              
	 
      	 
      	
                Name:  Joseph
      Hsieh

              
	 
      	 
      	
                Title:  Supervisor

              


      





    
       

    

     

    THIS IS A
SIGNATURE PAGE FOR THE FACILITATION AGREEMENT

    ENTERED
INTO BY AND BETWEEN NTC, MNL

    AND THE
JOINT VENTURE COMPANY

    



    
      DLI-6217912v6