exhibit10_74.htm


    


     

     

    
      EXHIBIT
10.74

      


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

       

      NTC/MICRON
CONFIDENTIAL

      


    

    


    SUPPLY
AGREEMENT

     

    This
SUPPLY AGREEMENT, is made and entered into as of this 26th day of November, 2008
(the “Closing Date”), by
and among MICRON TECHNOLOGY, INC., a Delaware corporation (“Micron”), NANYA TECHNOLOGY
CORPORATION Nanya
Technology Corporation [Translation from Chinese] (“NTC” and, together with
Micron, the “Purchasers”), a company
incorporated under the laws of the Republic of China (“ROC” or “Taiwan”), and INOTERA
MEMORIES, INC. Inotera
Memories Inc. [Translation from Chinese] a company incorporated under the
laws of the ROC (the “Joint
Venture Company”).

     

    RECITALS

     

    A.           The
Joint Venture Company is engaged in the manufacture of Trench DRAM Products (as
defined hereinafter).

     

    B.           The
Joint Venture Company intends to convert fully from the manufacture of Trench
DRAM Products to Stack DRAM Products (as defined hereinafter).

     

    C.           The
Joint Venture Company is party to the IMI/Qimonda Supply Agreement (as defined
hereinafter), pursuant to which Qimonda AG, a German corporation (“Qimonda”), is obligated to
purchase Trench DRAM Products from the Joint Venture Company.

     

    D.           Micron,
NTC and the Joint Venture Company (each, a “Party” and collectively, the
“Parties”) desire,
except as otherwise provided in this Agreement, that the Joint Venture Company,
during the Transition Period (as defined hereinafter), generally supply
(1) to Micron Trench DRAM Conforming Wafers (as defined hereinafter) and
Trench DRAM Secondary Silicon (as defined hereinafter) in accordance with the
Output Percentage (as defined hereinafter) of MNL (as defined hereinafter) of
the aggregate Trench DRAM Manufacturing Capacity (as defined hereinafter),
reduced by the Trench DRAM Products sold to Qimonda pursuant to the IMI/Qimonda
Supply Agreement, and (2) to NTC Trench DRAM Conforming Wafers and Trench
DRAM Secondary Silicon in accordance with NTC’s Output Percentage of the
aggregate Trench DRAM Manufacturing Capacity, all upon the terms and subject to
the condition set forth in this Agreement.

     

    E.           The
Parties desire the Joint Venture Company to supply (1) to Micron Stack DRAM
Conforming Wafers (as defined hereinafter) and Stack DRAM Secondary Silicon (as
defined hereafter) in accordance with MNL’s Output Percentage of the aggregate
Stack DRAM Manufacturing Capacity (as defined hereinafter) and (2) to NTC
Stack DRAM Conforming Wafers and Stack DRAM Secondary Silicon in accordance with
NTC’s Output Percentage of the aggregate Stack DRAM Manufacturing Capacity, all
upon the terms and subject to the conditions set forth in this
Agreement.

     

    
      
        
          
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            NTC/MICRON
CONFIDENTIAL

          

        

      

    

    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:

     

    “Adjusted BEOL Costs Per Die”
shall have the meaning set forth in Schedule
4.9.

     

    “Adjusted JVC Per Wafer” means,
for a particular Purchaser for a particular Delivery Month, with respect to any
JV Product Category delivered in such Delivery Month, an amount equal to the sum
of (a) the JVC Per Wafer for such JV Product Category for the Delivery Month
immediately preceding such Delivery Month and (b) the Adjustment to JVC Per
Wafer for such Purchaser for such JV Product Category.

     

    “Adjustment to JVC Per Wafer”
means, for a particular Delivery Month, with respect to any JV Product Category
for such Delivery Month:  (a) for Micron, an amount equal to the
quotient of (i) the product of (A) the Shared Costs and (B) MNL's Output
Percentage (as the same may change from time to time), divided by (ii) [***] of
such JV Product Category delivered to Micron in such Delivery Month and (b) for
NTC, an amount equal to the quotient of (i) the product of (A) the Shared Costs
and (B) NTC's Output Percentage (as the same may change from time to time),
divided by (ii) [***] of such JV Product Category delivered to NTC in such
Delivery Month.

     

    “Affiliate” means, with respect
to any specified Person, any other Person that directly or indirectly, including
through one or more intermediaries, controls, or is controlled by, or is under
common control with such specified Person; and the term “affiliated” has a meaning
correlative to the foregoing.

     

    “Agreement” means this Supply
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.

     

    “Audited Purchaser” shall have
the meaning set forth in Section
5.3(c).

     

    “Average JVC Per Wafer” shall
have the meaning set forth in Schedule
4.9.

     

    “Average Front End Cost” means,
for a particular Delivery Month, an amount equal to (a) the sum of the following
for each class of Contract Products delivered in such Delivery Month (i) the
Front End Cost (as defined in the IMI/Qimonda Supply Agreement) for such class
of Contract Products, multiplied by (ii) the number of QC and NC wafers of such
class of Contract Products delivered by the Joint Venture Company to Qimonda in
such Delivery Month, divided by (b) the number of QC and NC wafers of all
classes of Contract Products delivered by the Joint Venture Company to Qimonda
in such Delivery Month.

     

    
      
        
          
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            NTC/MICRON
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    “Average Margin Per Wafer”
shall have the meaning set forth in Schedule
4.9.

     

    “Average Qimonda JVC Per Wafer”
means, for a particular Delivery Month, an amount equal to (a) the sum of the
following for each class of Contract Products delivered in such Delivery Month
(i) the Proforma JVC Per Wafer for such class of Contract Products in such
Delivery Month, multiplied by (ii) the number of QC and NC wafers of such class
of Contract Products delivered by the Joint Venture Company to Qimonda in such
Delivery Month, divided by (b) the number of QC and NC wafers of all classes of
Contract Products delivered by the Joint Venture Company to Qimonda in such
Delivery Month.

     

    “Back End Die Yield” shall have
the meaning set forth in Schedule
4.9.

     

    “Baseline Flow” means, for a
particular Process Node at a particular fab, the production flow of a baseline
product or product mix for such Process Node at such fab, as determined by the
Manufacturing Committee; provided that, if the
Manufacturing Committee cannot agree to a baseline product or product mix for
such Process Node at such fab, then Baseline Flow shall mean the production flow
of the highest volume Stack DRAM Product being produced at such Process Node at
such fab and, during the Transition Period, the highest volume Trench DRAM
Product being produced at such Process Node at such fab, with the mix thereof
being that which will maximize the production of Stack DRAM
Products.

     

    “BEOL Cost Per Die” shall have
the meaning set forth in Schedule
4.9.

     

    “Boundary Conditions” means,
with respect to any fab, the Trench DRAM Boundary Conditions and Stack DRAM
Boundary Conditions.

     

    “Business Day” means a day that
is not a Saturday, Sunday or other day on which commercial banking institutions
in either the ROC or the State of New York are authorized or required by
Applicable Law to be closed.

     

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

     

    “Conforming Ratio” means for
any given period of time, the quotient, expressed as a percentage, of
(a) the number of Conforming Wafers produced during such period of time,
divided by (b) the number of Conforming Wafers and Secondary Silicon
produced during such period of time.

     

    “Conforming Wafer” means a
Trench DRAM Conforming Wafer or Stack DRAM Conforming Wafer.

     

    “Contract Products” shall have
the meaning set forth in the IMI/Qimonda Supply Agreement.

     

    
      
        
          
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    “Control” (whether or not
capitalized) means the power or authority, whether exercised or not, to direct
the business, management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
which power or authority shall conclusively be presumed to exist upon possession
of beneficial ownership or power to direct the vote of more than [***] of the
votes entitled to be cast at a meeting of the members, shareholders or other
equity holders of such Person or power to control the composition of a majority
of the board of directors or like governing body of such Person; and the terms
“controlling” and “controlled” have meanings
correlative to the foregoing.

     

    “Cycle-Time” means the time
required to process a wafer through a portion of the manufacturing process or
through the manufacturing process as a whole, including Probe
Testing.

     

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

     

    “Delivery Month” shall have the
meaning set forth in Schedule
4.9.

     

    “Design ID” means a part number
that is assigned to a unique DRAM Design of a particular DRAM Product, which may
include a number or letter designating a specific device revision.

     

    “Design SOW” means
[***]

     

    “Die Yield” means the quotient,
expressed as a percentage, of (a) the number of DRAM Products in die form that
are manufactured on a wafer and that meet the applicable Specifications at the time of Probe
Testing, divided by (b) the maximum number of  such die that could be
manufactured on such wafer to meet the applicable Specifications using the
applicable Process Node.

     

    “DRAM Design” means a Trench
DRAM Design or Stack DRAM Design.

     

    “DRAM Product” means a Trench
DRAM Product or Stack DRAM Product.

     

    “Engineering Wafers” means
wafers ordered by a Purchaser in lieu of Conforming Wafers as contemplated by
Section
4.3.

     

    “Environmental Laws” means any
and all laws, statutes, rules, regulations, ordinances, orders, codes or binding
determinations of any Governmental Entity pertaining to the environment in any
and all jurisdictions in which the Joint Venture Company’s fabs are located,
including laws pertaining to the handling of wastes or the use, maintenance and
closure of pits and impoundments, and other environmental conservation or
protection laws.

     

    “Estimated Final Price
Statement” shall have the meaning set forth in Section
4.9(b).

     

    “Excursion” means a performance
deviation during the production process that is outside normal behavior, as
defined by historical performance or as established by a Purchaser and the Joint
Venture Company in writing in the applicable Specifications, which may impact
performance, Quality and Reliability or such Purchaser’s customer delivery
commitments for DRAM Product from Conforming Wafers.

     

    
      
        
          
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            NTC/MICRON
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    “Executive Vice President”
means the Executive Vice President of the Joint Venture Company.

     

    “Fab Yield” means, for any
given period of time, the quotient, expressed as a percentage, of (a) the number
of Conforming Wafers produced during such period of time, divided by (b) the
number of all wafers produced during such period of time.

     

    “Final Price Adjustment Memo”
shall have the meaning set forth in Section 4.9(b).

     

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

     

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

     

    “Fiscal Year” means the fiscal
year of the Joint Venture Company for financial accounting
purposes.

     

    “Force Majeure Event” means the
occurrence of an event or circumstance beyond the reasonable control of the
Party and includes:  (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 Governmental Entities; (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 another Party’s or Third-Party nonperformance (except for delays
caused by a Party’s subcontractors or agents).

     

    “GAAP” means generally accepted
accounting principles.

     

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

     

    “Gross Revenue Per Die” shall
have the meaning set forth in Schedule
4.9.

     

    “Hazardous Substances” means
any asbestos, any flammable, explosive, radioactive, hazardous, toxic,
contaminating, polluting matter, waste or substance, including any material
defined or designated as a hazardous or toxic waste, material or substance, or
other similar term, under any Environmental Laws in effect or that may be
promulgated in the future.

     

    “IMI/Qimonda Supply Agreement”
means that certain Supply Agreement between the Joint Venture Company and
Qimonda, dated October 11, 2008, as amended.

     

    “Indemnified Losses” mean all direct,
out-of-pocket liabilities, damages, losses, costs and expenses (including
reasonable attorneys’ and consultants’ fees and expenses).

     

    “Indemnified Party” shall have
the meaning set forth in Section
8.2.

     

    
      
        
          
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            NTC/MICRON
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    “JDP Agreement” means that
certain Joint Development Program Agreement between NTC and Micron, dated
April 21, 2008, as amended.

     

    “JDP Committee” means the
committee formed and operated by Micron and NTC to govern the performance of
Micron and NTC under the JDP Agreement in accordance with the JDP Committee
Charter.

     

    “JDP Committee Charter” means
the charter attached as Schedule 2 of the JDP
Agreement.

     

    “Joint Venture Agreement” means
that certain Joint Venture Agreement between NTC and MNL, dated the Closing
Date, as amended, relating to the Joint Venture Company.

     

    “Joint Venture Company” shall
have the meaning set forth in the preamble to this Agreement.

     

    “[***] Report” shall have the
meaning set forth in Section 3.7(a).

     

    “JVC Per Wafer” shall have the meaning
set forth in Schedule
4.9.

     

    “JV Product Category” shall
have the meaning set forth in Schedule
4.9.

     

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

     

    “Manufacturing Capacity” means
Trench DRAM Manufacturing Capacity and Stack DRAM Manufacturing
Capacity.

     

    “Manufacturing Committee” means
the manufacturing committee established by NTC and MNL pursuant to Section 7.2(b)(i) of
the Joint Venture Agreement.

     

    “Manufacturing Plan” shall have
the meaning set forth in Section
3.1.

     

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

     

    “Micron Margin Per Wafer” shall
have the meaning set forth in Schedule
4.9.

     

    “Micron Term” shall have the
meaning set forth in Section
10.1(a).

     

    “MNL” means Micron
Semiconductor B.V., a private limited liability company organized under the laws
of the Netherlands.

     

    “Mutual Confidentiality
Agreement” means that certain Second Amended and Restated Mutual Confidentiality
Agreement among NTC, Micron, MNL, MeiYa Technology Corporation MeiYa Technology Corporation
[Translation from Chinese] a
company incorporated under the laws of the ROC, and the Joint Venture Company,
dated the Closing Date, as amended.

     

    “NC” shall have the meaning set
forth in the IMI/Qimonda Supply Agreement.

     

    “Net Revenue Per Wafer” shall
have the meaning set forth in Schedule
4.9.

     

    
      
        
          
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    “Non-SOW Product” means a class
of Stack DRAM Product that does not result from a SOW.

     

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

     

    “NTC Margin Per Wafer” shall
have the meaning set forth in Schedule
4.9.

     

    “NTC Term” shall have the
meaning set forth in Section
10.1(b).

     

    “[***] Report” shall have the
meaning set forth in Section
3.7(b).

     

    “Output Percentage” shall have
the meaning set forth in the Joint Venture Agreement.

     

    “Party” and “Parties” shall have the meanings
set forth in Recital D to this Agreement.

     

    “Performance
Criteria” means the factors of [***]

     

    “Permitted Disclosures” shall
have the meaning set forth in Section
3.9(a).

     

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

     

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

     

    “PPCRA” means that certain
Product Purchase and Capacity Reservation Agreement among NTC, Qimonda and the
Joint Venture Company, dated November 13, 2002, as amended.

     

    “[***] Price” means
[***]

     

    “President” means the President
of the Joint Venture Company.

     

    “Price” or “Pricing” means the calculation
set forth on Schedule
4.9.

     

    “[***] Report” shall have the
meaning set forth in Section
3.7(c).

     

    “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 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.

     

    “Probe Yield” means, with
respect to any period of time, the quotient, expressed as a percentage, of (a)
the number of DRAM Products in die form meeting the applicable Specifications
during such period of time, divided by (b) the number of die probed (excluding
the number of die contained on scrapped wafers) during such period of
time.

     

    “Product Die Yield” shall have
the meaning set forth in Schedule
4.9.

     

    
      
        
          
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    “Proforma Invoice” shall have
the meaning set forth in Section
4.9(a).

     

    “Proforma JVC Per Wafer” means,
for a particular Delivery Month, with respect to any class of Contract Products
for such Delivery Month, [***]

     

    “Process Node” means [***]

     

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

     

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

     

    “Purchase Order” shall have the
meaning set forth in Section
4.4.

     

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

     

    “Purchaser Indemnified
Party” means Micron, NTC or any of their respective
Subsidiaries.

     

    “QC” shall have the meaning set
forth in the IMI/Qimonda Supply Agreement.

     

    “Quality and Reliability” means
the quality and reliability standards for Conforming Wafers as set forth in the
applicable Specifications or the Manufacturing Plan in effect from time to
time.

     

    “Qimonda” shall have the
meaning set forth in Recital C to this Agreement.

     

    [***]

     

    [***]

     

     “Ramp Down Period” shall have
the meaning set forth in the IMI/Qimonda Supply Agreement.

     

    “Recoverable Taxes” shall have
the meaning set forth in Section
4.8(a).

     

    “Restriction Period” means,
with respect to any Segregated Employee, the period of time beginning on the
date such Person becomes a Segregated Employee and ends on the date that is
[***] months after the date such Person is no longer a Segregated
Employee.

     

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

     

    “Secondary Silicon” means
Trench DRAM Secondary Silicon or Stack DRAM Secondary Silicon.

     

    “Secondary Silicon
Specifications” means those specifications used to describe,
characterize, and define the quality and performance of Secondary Silicon, as
such specifications may be determined from time to time by the
Parties.

     

    “Segregated Employees” means
[***]

     

    
      
        
          
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    “Shared Costs” means,
[***]

     

    “Shared Design ID Wafers” means
all wafers with the same Design ID that are intended to be sold to more than one
Person.

     

    “Ship Lot Line Yield” means,
[***]

     

    “SOW” means a statement of the
work that describes research and development work to be performed under the JDP
Agreement and that has been adopted by the JDP Committee pursuant to Section 3.2 of the
JDP Agreement.

     

    “Specifications” means those
specifications used to describe, characterize, and define the quality and
performance of the applicable Conforming Wafer (or of the die thereon, as
applicable), as such specifications may be determined from time to time by the
Parties.

     

    “Stack DRAM” means dynamic
random access memory cell that functions by using a  capacitor arrayed
predominantly above the semiconductor substrate.

     

    “Stack DRAM Boundary
Conditions” means, with respect to any fab, a requirement that, at any
point in time:

     

    [***]

     

    “Stack DRAM Conforming Wafer” means a
wafer (other than an Engineering Wafer) delivered by the Joint Venture Company
to a Purchaser under this Agreement containing Stack DRAM Products that has a
minimum Die Yield of [***] (or such other minimum Die Yield as the Parties may
agree in writing) and meets the applicable Specifications.

     

    “Stack DRAM Design” means,
with respect to a Stack DRAM Product, all of the design elements, components,
specifications and information required to manufacture the subject Stack DRAM
Product, including some or all of the elements, components, specifications and
information listed on Schedule 3 to the JDP Agreement or others.

     

    “Stack DRAM Manufacturing
Capacity” means, with respect to each of the Joint Venture Company’s
fabs, the total work minutes available for each Process Node to manufacture
Stack DRAM Products at such fab.

     

    “Stack DRAM Module” means one
or more Stack DRAM Products in a JEDEC-compliant package or module (whether as
part of a SIMM, DIMM, multi-chip package, memory card or other memory module or
package).

     

    “Stack DRAM Product” means any
memory comprising Stack DRAM, whether in die or wafer form.

     

    “Stack DRAM Secondary Silicon” means a
wafer delivered by the Joint Venture Company to a Purchaser under this Agreement
containing Stack DRAM Products that fails to meet the applicable Specifications
or a minimum Die Yield of [***] (or such other minimum Die Yield as the Parties
may agree in writing), provided that such wafer
otherwise conforms to the applicable Secondary Silicon Specifications and has a
minimum Die Yield of [***]  (or such other minimum Die Yield as the
Parties may agree in writing) or such other minimum Die Yield as the Parties may
mutually agree in writing.

     

    
      
        
          
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    [***]

     

    “Subsidiary” means, with
respect to any specified Person, any other Person that directly or indirectly,
including through one or more intermediaries, is controlled by such specified
Person.

     

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

     

    “Taiwan GAAP” means GAAP used
in the ROC, as in effect from time to time, consistently applied for all periods
at issue.

     

    “Technology Transfer Agreement”
means that certain Technology Transfer
Agreement among NTC, Micron and the Joint Venture Company, dated the Closing
Date, as amended.

     

    “Technology Transfer and License
Agreement” means that certain Amended and Restated Technology Transfer
and License Agreement between Micron and NTC, dated the Closing Date, as
amended.

     

    “Third Party” means any Person,
other than NTC, Micron, the Joint Venture Company or any of their respective
Subsidiaries.

     

    “Third Party Claim” means any
claim, demand, lawsuit, complaint, cross-complaint or counter-complaint,
arbitration, opposition, cancellation proceeding 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 brought by any Third Party.

     

    “Transition Period” means
[***]

     

    “Trench Contract Process” means
the 90nm and 70nm trench based DRAM process technology previously transferred to
the Joint Venture Company under that certain Know How Transfer Agreement among
the Joint Venture Company, NTC and Qimonda, dated November 13, 2002, as
amended.

     

    “Trench DRAM Boundary
Conditions” means, with respect to any fab, a requirement that, at any
point in time:

     

    [***]

     

    “Trench DRAM Conforming Wafer”
means a wafer (other than an Engineering Wafer) delivered by the Joint Venture
Company to a Purchaser under this Agreement containing Trench DRAM Products that
has a minimum Die Yield of [***] and meets the applicable
Specifications.

     

    
      
        
          
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    “Trench DRAM Designs” means,
with respect to a Trench DRAM Product, the corresponding design components,
materials and information.

     

    “Trench DRAM Manufacturing
Capacity” means, with respect to each of the Joint Venture Company’s
fabs, the total work minutes available for each Process Node to manufacture
Trench DRAM Products at such fab.

     

    “Trench DRAM Products” means
trench based dynamic random access memory products manufactured by the Joint
Venture Company in accordance with the Trench Contract Process.

     

    “Trench DRAM Secondary Silicon”
means a wafer delivered by the Joint Venture Company to a Purchaser under this
Agreement containing Trench DRAM Products that fails to meet the applicable
Specifications or a minimum Die Yield of [***], provided that such wafer
otherwise conforms to the applicable Secondary Silicon Specifications and has a
Die Yield of [***] or such other minimum Die Yield as the Parties may mutually
agree in writing.

     

    “TTA 68-50” means that certain
Technology Transfer Agreement for 68-50 nm Process Nodes between Micron and the
Joint Venture Company, dated October 11, 2008, as amended.

     

    “TTLA 68-50” means that certain
Technology Transfer and License Agreement for 68 50 nm Process Nodes between
Micron and NTC, dated April 21, 2008, as amended.

     

    “US GAAP” means GAAP used in
the United States, as in effect from time to time, consistently applied for all
periods at issue.

     

    “Wafer Start” means the
initiation of manufacturing services with respect to a wafer.

     

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

     

    “WIP” means work in process at
any of the Joint Venture Company’s fabs, including all wafers in wafer
fabrication and sort and all completed Conforming Wafers and Secondary Silicon
not yet delivered to a Purchaser.

     

    “WIP Data” means in line
inventory data, including wafer numbers, lot numbers, unit volumes, wafer
volumes, Cycle-Times, Die Yield, Fab Yield, Probe Yield and Ship Lot Line
Yield.

     

    “WSTS Forecast” means the
forecast of semiconductor prices prepared by WSTS, Inc.

     

    1.2 Certain Interpretive
Matters.

     

    (a) Unless
the context requires otherwise, (i) all references to Sections, Articles,
Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
Appendices or Schedules of or to this Agreement, (ii) each accounting term not
otherwise defined in this Agreement (A) with respect to Micron, has the meaning
commonly applied to it in accordance with US GAAP, and (B) with respect to NTC
and the Joint Venture Company, has the meaning commonly applied to it in
accordance with Taiwan GAAP, (iii) words in the singular include the plural and
vice versa, (iv) the term “including” means “including
without limitation,” and (v) 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” mean calendar days, and
all references to “quarter(ly),” “month(ly)” or “year(ly)” mean Fiscal Quarter,
Fiscal Month or Fiscal Year, respectively, unless the context requires
otherwise.

     

    
      
        
          
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    (b) No
provision of this Agreement will be interpreted in favor of, or against, any
Party by reason of the extent to which (i) such Party or its counsel
participated in the drafting thereof, or (ii) such provision is inconsistent
with any prior draft of this Agreement or such provision.

     

    (c) For
purposes of this Agreement, the following fabs collectively shall constitute a
single fab: (i) the existing fabs commonly referred to as “Fab 1” and “Fab 2”
located at Hwa Ya Technology Park, Taoyuan, Taiwan, and (ii) the fab currently
leased by MeiYa Technology Corporation MeiYa Technology Corporation
[Translation from Chinese], a company incorporated under the laws of the
ROC, also located at Hwa Ya Technology Park, Taoyuan, Taiwan, at such time as it
is operated by the Joint Venture Company.

     

    ARTICLE
2

    OBLIGATIONS OF THE
PARTIES;

    PROCESSES AND
CONTROLS

     

    2.1 General
Obligations.

     

    (a) The Joint
Venture Company shall convert fully from the manufacture of Trench DRAM Products
to the manufacture of Stack DRAM Products as soon as commercially practicable
taking into account relevant manufacturing, finance and sales considerations and
shall otherwise provide and develop fabs to meet Manufacturing Capacity
according to the Manufacturing Plan in effect from time to time and the
obligations set forth herein.

     

    [***]

     

    2.2 Control;
Processes.  The Parties shall review the Joint Venture
Company’s control and process mechanisms, including such mechanisms that are
utilized to ensure that all parameters of the Specifications and Performance
Criteria are met or exceeded in the Joint Venture Company’s manufacture of
Conforming Wafers.  The Parties agree to work together in good faith
to define mutually agreeable control and process mechanisms, including the
following:  [***].

     

    2.3 Production
Masks.

     

    (a) During
the Transition Period, the Joint Venture Company shall obtain all masks required
to manufacture Trench DRAM Products under this Agreement in accordance with its
policies with respect thereto existing as of the date hereof.

     

    
      
        
          
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    (b) Until a
second source for masks is qualified by the JDP Committee for the 68nm Process
Node or 50nm Process Node or a particular Stack DRAM Product pursuant to Section 3.7 of the
JDP Agreement, and then except to the extent of such qualification, the Joint
Venture Company shall order all masks required to manufacture Stack DRAM
Products under this Agreement from [***].   Upon the
qualification of a second source for masks for a particular Process Node or
Stack DRAM Product by the JDP Committee in accordance with Section 3.7 of the
JDP Agreement, the Joint Venture Company shall comply with the instructions from
time to time of the Manufacturing Committee with regards to whether such
qualified second source or [***] will be used to create, maintain, repair and
replace the masks required for such Process Nodes or Stack DRAM Products under
this Agreement.  The Joint Venture Company shall have possession, but
not ownership of any underlying copyrights, mask works or other intellectual
property, of any physical production masks which the Joint Venture Company
obtains in accordance with this Section
2.3(b).

     

    2.4 Designation of
WIP.

     

    (a) WIP Associated With Shared
Design ID Wafers.  The Joint Venture Company shall ensure that
WIP at its fabs associated with Shared Design ID Wafers is designated for all of
the purchasers of such Shared Design ID Wafers from Wafer Start, and the Shared
Design ID Wafers shall be allocated to the purchasers of such Shared Design ID
Wafers immediately prior to Probe Testing by Design ID pro rata in accordance with
the relative number of such Shared Design ID Wafers to be delivered to each
purchaser during such Delivery Month pursuant to the Purchasers’ Purchase Orders
and Qimonda’s non-cancellable purchase orders delivered pursuant to Section 4.2
of the IMI/Qimonda Supply Agreement.

     

    (b) Other
WIP.  The Joint Venture Company shall ensure that WIP at its
fabs associated with wafers other than Shared Design ID Wafers to be purchased
by Micron, NTC or Qimonda is designated for such purchaser from Wafer
Start.

     

    2.5 Subcontractors.  The
Joint Venture Company may utilize subcontractors, subject to all subcontractors
whose work could reasonably be expected to have a direct impact on the
manufacture of Conforming Wafers or Probe Testing being approved by at least one
of the Purchasers, which approval shall not be unreasonably withheld or
delayed.  The Joint Venture Company shall ensure that all contracts
with subcontractors (a) shall provide the Joint Venture Company with the same
level of access and controls as the Joint Venture Company provides to the
Purchasers in this Agreement and (b) contain customary nondisclosure
obligations in a form reasonably acceptable to the Purchasers.

     

    2.6 [***].  In
addition to the [***] Report and the monthly review requirements set forth in
Section 3.7,
the Joint Venture Company shall promptly notify each Purchaser of
[***].

     

    2.7 Traceability; Data
Retention.  The Parties shall review the Joint Venture
Company’s [***] process and producing the WIP Data and (b) data retention policy
in regards to the WIP Data.  The Joint Venture Company agrees to
maintain the WIP Data for a minimum of [***] (or such other period as may be
agreed in writing by the Parties).

     

    
      
        
          
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    2.8 Access to WIP
Data.  The Joint Venture Company shall provide each Purchaser
with full access to its respective WIP Data (including with respect to Shared
Design ID Wafers) [***].

     

    2.9 Additional Customer
Requirements.

     

    (a) Micron
shall inform the Joint Venture Company in writing of any supplier requirements
of any Micron customer relating to any of the Joint Venture Company’s fabs at
which DRAM Product is manufactured for Micron.  Micron and the Joint
Venture Company shall work together in good faith to satisfy such
requirements.

     

    (b) NTC shall
inform the Joint Venture Company in writing of any supplier requirements of any
NTC customer relating to any of the Joint Venture Company’s fabs at which DRAM
Product is manufactured for NTC.  NTC and the Joint Venture Company
shall work together in good faith to satisfy such requirements.

     

    2.10 Notification of Changes in
Output Percentage.  Micron and NTC shall jointly notify the
Joint Venture Company of any change in the Output Percentages of MNL and NTC as
promptly as practicable but no later than the date that is [***] days prior to
the effectiveness of such change.

     

    ARTICLE
3

    PLANNING AND
FORECASTING;

    PERFORMANCE REVIEWS AND
REPORTS

     

    3.1 Annual Manufacturing
Plan.  At least [***] days (or such other number of days as may
be agreed in writing by the Parties) prior to the end of each Fiscal Year, the
Joint Venture Company shall prepare, under the direction of the President, with
input from the Executive Vice President, the Purchasers and the Manufacturing
Committee (or such other persons or committees charged with such responsibility
from time to time by the MNL and NTC), an annual manufacturing plan (the “Proposed Manufacturing Plan”)
for the next [***] Fiscal Quarters (or such other period or periods as may be
agreed in writing by the Parties) and shall submit the Proposed Manufacturing
Plan to the Manufacturing Committee for its approval; provided that,
notwithstanding the foregoing, the Proposed Manufacturing Plan to be prepared
for [***].  The Manufacturing Committee may approve the Proposed
Manufacturing Plan as submitted or may condition its approval on the Joint
Venture Company making changes to the Proposed Manufacturing Plan, in which case
the Joint Venture Company shall make such changes to the Proposed Manufacturing
Plan (as so approved and, if applicable, changed, the “Manufacturing
Plan”).  Upon such approval of and, if applicable, such
amendment to the Proposed Manufacturing Plan, the Manufacturing Plan shall
become effective.  The Manufacturing Plan shall seek to optimize the
efficiency and output of the Joint Venture Company and shall be updated in
accordance with Section
3.3.  The Manufacturing Plan shall address [***].

     

    3.2 Quarterly Statement
Regarding Anticipated Share of Manufacturing Capacity.  No
later than [***] days (or such other number of days as may be agreed in writing
by the Parties) prior to the end of each Fiscal Quarter (commencing with the
[***]), the Joint Venture Company shall deliver to each Purchaser a statement
setting forth such Purchaser's anticipated share of the Manufacturing Capacity
of the Joint Venture Company [***] Fiscal Quarters (or such other period or
periods as may be agreed in writing by the Parties), based on,
[***].

     

    
      
        
          
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    3.3 Quarterly Planning and
Forecasting.

     

    (a) At a
point in each Fiscal Quarter as agreed in writing by the Parties (commencing
with the [***]), each Purchaser shall provide the Joint Venture Company with a
written non-binding forecast of such Purchaser’s demand (a “Demand Forecast”) for the next
[***] (or such other period or periods as may be agreed in writing by the
Parties).  All Demand Forecasts [***].

     

    (b) The Joint
Venture Company shall furnish each Purchaser with a written response within
[***] (or such other number of days as may be agreed in writing by the Parties)
of receiving such Purchaser’s Demand Forecast, indicating its Manufacturing
Capacity during the period covered by such Demand Forecast [***] outlined in
such Demand Forecast that the Joint Venture Company can commit to
deliver.  This written response (the “Planning Forecast”) shall
include:

     

    [***]

     

    (c) Based on
the Planning Forecasts (and, during the Ramp Down Period, the Ramp Down Wafer
Starts (as defined in the IMI/Qimonda Supply Agreement)), the Joint Venture
Company shall develop a proposed Loading Plan (the “Proposed Loading Plan”) for
the next [***] Fiscal Quarters  (or such other period or periods as
may be agreed in writing by the Parties).  The Joint Venture Company
shall provide each Purchaser with the Proposed Loading Plan at least [***] (or
such other number of days as may be agreed in writing by the Parties) prior to
its review by the Manufacturing Committee.

     

    (d) The Joint
Venture Company shall submit the Proposed Loading Plan, Planning Forecasts and
other requested information to the Manufacturing Committee for its
approval.  The Manufacturing Committee may approve the Proposed
Loading Plan as submitted or may condition its approval on the Joint Venture
Company making changes to the Proposed Loading Plan, in which case the Joint
Venture Company shall make such changes to the Proposed Loading
Plan.  Upon such approval of and, if applicable, such changes to the
Proposed Loading Plan, the Manufacturing Plan shall be changed to conform to the
Proposed Loading Plan, as so approved and, if applicable, changed.

     

    3.4 [***]

     

    3.5 Loading
Modifications.  The Joint Venture Company may, from time to
time, submit to the Manufacturing Committee for its approval recommendations for
loading wafers in a manner other than as set forth in the Manufacturing
Plan.  If such recommendations are approved by the Manufacturing
Committee, notwithstanding anything herein to the contrary, the Joint Venture
Company shall load wafers in accordance with such
recommendations.  The Manufacturing Committee may, from time to time,
and shall at least monthly, consider loading modifications and may, from time to
time and at any time, require that wafers be loaded in a manner other than as
set forth in the Manufacturing Plan, in which case, notwithstanding anything
herein to the contrary, the Joint Venture Company shall load wafers as so
required rather than as set forth in the Manufacturing Plan.

     

    
      
        
          
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    3.6 Manufacturing Committee
Deadlock.  If the Manufacturing Committee does not agree on
whether to approve or how to change a Proposed Manufacturing Plan or a Proposed
Loading Plan or if a member of the Manufacturing Committee requests that wafers
be loaded in a manner other than as set forth in the Manufacturing Plan and the
Manufacturing Committee does not agree to the manner in which wafers should be
loaded, then the Joint Venture Company [***].

     

    3.7 Monthly
Reports.

     

    (a) [***]
Reports.  Within [***](or such other number of days as may be
agreed in writing by the Parties) [***], the Joint Venture Company shall deliver
to each Purchaser a report (each, a “[***] Report”) which shall
include:

     

    [***]

     

    Neither
Purchaser will use or disclose the [***] Reports, or the contents thereof,
received by such Purchaser in contravention of any Applicable Law.

     

    (b) [***]
Report.  [***]
days (or such other number of days as may be agreed in writing by the Parties)
after the end of each Fiscal Month, the Joint Venture Company shall deliver to
each Purchaser a report [***] (the “[***] Report”), which shall
include:

     

    (i) a
comparison of [***];

     

    (ii) a summary
of [***];

     

    (iii) a
description of [***] and

     

    (iv) a
description [***].

     

    (c) [***]
Reports.  [***]
days (or such other number of days as may be agreed in writing by the Parties)
after the end of each Fiscal Month, each Purchaser shall deliver to the Joint
Venture Company a report (each, a “[***] Report”), which shall [***]
The Joint Venture Company will not use or disclose the [***] Reports, or the
contents thereof, received by the Joint Venture Company in contravention of any
Applicable Law.

     

    3.8 Performance
Reviews.

     

    (a) The Joint
Venture Company shall hold a monthly meeting with the Manufacturing Committee,
the primary purposes of which shall be to review and discuss the most recent
[***] Report and the Performance Criteria and to mutually agree on operational
adjustments if necessary.

     

    (b) Each
Purchaser (separately) and the Joint Venture Company shall hold a monthly
meeting to review and discuss (i) at the election of such Purchaser, the most
recent [***] Report received by such Purchaser, and (ii) at the election of the
Joint Venture Company, the most recent [***] Report delivered by such
Purchaser.

     

    
      
        
          
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    (c) The
monthly meetings required by this Section 3.8 shall be
held on dates to be agreed in writing by the Parties intended to attend such
meetings; provided that
(i) the meeting required by Section 3.8(a) shall
not be held prior to the delivery of the [***] Report by the Joint Venture
Company, and (ii) the meetings required by Section 3.8(b) shall
not be held prior to the delivery of the [***] Report and the applicable [***]
Report by the Joint Venture Company and the delivery of the [***] Report by the
applicable Purchaser.

     

    3.9 Restrictions on Access to
Pricing Information; Nonsolicitation of Segregated
Employees.

     

    (a) The Joint
Venture Company shall prevent any Person that is not a Segregated Employee from
obtaining access to the [***] (including the [***] Reports), or the data from
which [***] is derived from, delivered to, or created by, the Joint Venture
Company under this Agreement, except (i) as the Parties may otherwise agree in
writing, (ii) as may be required by legal process under Applicable Law, and
(iii) that the Joint Venture Company may provide (A) a Purchaser with its [***]
Reports and the Proforma Invoices and [***] delivered to such Purchaser under
Section 4.9,
and the data from which such [***] Reports, Proforma Invoices, [***] or [***]
are derived, (B) any independent Third Party auditor acting as contemplated by
Section 5.3
with such information as such auditor may request that is reasonably relevant to
the applicable inspection and audit, and (C) the Joint Venture Company’s
independent outside auditors with such information as such auditor may
reasonably request in connection with its audit of the Joint Venture Company’s
financial statements and other statutory audit requirements (the items in
clauses (i), (ii) and (iii) being referred to as the "Permitted
Disclosures").  Without limiting the generality of the
foregoing, the Joint Venture Company shall (x) develop, maintain, implement and
enforce policies that (A) prohibit all Segregated Employees from
disclosing, or allowing disclosure of, [***] (including the [***] Reports) to
Persons that are not Segregated Employees, other than the Permitted Disclosures
and (B) require all Segregated Employees to store all physical files related to
[***] (including the [***] Reports) in secure locations that are not accessible
by non-Segregated Employees, (y) segregate the office space of the Segregated
Employees from other employees of the Joint Venture Company, and (z) maintain
all electronic files containing [***] (including the [***] Reports) in
confidential password protected files.  Neither Purchaser shall take
any action that reasonably should be expected to cause the Joint Venture Company
to violate this Section
3.9.

     

    (b) Even if
permitted under Section 8.4 of
the Joint Venture Agreement, the Purchasers shall not, and shall cause their
respective Affiliates not to, directly or indirectly recruit, solicit or hire,
or make arrangements to recruit, solicit or hire, any current or former
Segregated Employee during the Restriction Period.

     

    ARTICLE
4

    PURCHASE AND SALE OF
PRODUCTS

     

    4.1 Product
Quantity.

     

    
      
        
          
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    (a) During
the Transition Period, except as otherwise provided in Section 2.1(b),
Micron shall purchase from the Joint Venture Company [***].  During
the Transition Period, NTC shall purchase from the Joint Venture Company
[***].

     

    (b) Micron
shall purchase from the Joint Venture Company [***].

     

    (c) Notwithstanding
anything in Sections
4.1(a) and 4.1(b) to the
contrary, the Joint Venture Company shall manufacture for and deliver to the
Purchasers Conforming Wafers in quantities other than as contemplated by Sections 4.1(a) and
4.1(b) upon
receiving, and in accordance with, joint written instructions from the
Purchasers setting forth a new allocation of Conforming Wafers between the
Purchasers.

     

    4.2 Secondary Silicon and
Scrapped Wafers.

     

    (a) At the
direction and option of Micron, the Joint Venture Company shall deliver to
Micron all Secondary Silicon produced by the Joint Venture Company (i) from
wafers designated from Wafer Start for Micron in accordance with Section 2.4 and (ii)
in the case of Shared Design ID Wafers, the portion thereof allocated to Micron
in accordance with Section 2.4.  At
the direction and option of Micron, the Joint Venture Company shall deliver to
Micron all scrapped wafers produced by the Joint Venture Company (x) from wafers
designated from Wafer Start for Micron and Qimonda in accordance with Section 2.4 and (y)
in the case of Shared Design ID Wafers, the portion thereof allocated to Micron
and Qimonda in accordance with Section 2.4.

     

    (b) At the
direction and option of NTC, the Joint Venture Company shall deliver to NTC all
Secondary Silicon produced by the Joint Venture Company (i) from wafers
designated from Wafer Start for NTC in accordance with Section 2.4 and (ii)
in the case of Shared Design ID Wafers, the portion thereof allocated to NTC in
accordance with Section
2.4.  At the direction and option of NTC, the Joint Venture
Company shall deliver to NTC all scrapped wafers produced by the Joint Venture
Company (x) from wafers designated from Wafer Start for NTC in accordance with
Section 2.4 and
(y) in the case of Shared Design ID Wafers, the portion thereof allocated to NTC
in accordance with Section
2.4.

     

    4.3 Engineering
Wafers.  Notwithstanding anything herein to the contrary, to
the extent requested in any Purchase Order placed, or any change order to a
Purchase Order issued, by a Purchaser, the Joint Venture Company shall
manufacture and deliver Engineering Wafers in lieu of Conforming
Wafers.  The Manufacturing Capacity required to manufacture each
Engineering Wafer shall be deemed to equal [***] of the Manufacturing Capacity
required to manufacture a Conforming Wafer of the same Design ID.  The
Joint Venture Company shall promptly provide each Purchaser with full access to
all data it reasonably requests relating to Engineering Wafers that are being
manufactured by the Joint Venture Company for such Purchaser.

     

    4.4 Placement of Purchase
Orders.  Prior to the commencement of every Fiscal Month or
such other time period as agreed in writing by the Parties, each Purchaser shall
place a non-cancelable blanket purchase order (each such order, a “Purchase Order”) for the
quantity, by Design ID, of Conforming Wafers and Engineering Wafers to be
supplied to it by the Joint Venture Company in the upcoming Fiscal
Month.  [***]  The terms and conditions of this Agreement
supersede the terms and conditions contained in any Party’s sales or purchase
documentation provided in connection herewith unless expressly agreed otherwise
in a writing signed by each Party.

     

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

     

    (a) the
Purchase Order number;

     

    (b) the
Design ID of each Conforming Wafer and of each Engineering Wafer;

     

    (c) by Design
ID, [***];

     

    (d) [***];

     

    (e) [***];

     

    (f) special
instructions for manufacturing Engineering Wafers, if any;

     

    (g) by Design
ID, [***];

     

    (h) by Design
ID, the place of delivery; and

     

    (i) other
terms (if any).

     

    The Joint
Venture Company shall not use or disclose the Purchaser Orders, or the contents
thereof, received by the Joint Venture Company in contravention of any
Applicable Law.

     

    4.6 Acceptance of Purchase
Order.  Each Purchase Order that (a) is consistent with the
Boundary Conditions, (b) corresponds to the Manufacturing Plan in the manner
contemplated by Section 4.4, and (c)
is otherwise free of errors, shall be deemed accepted by the Joint Venture
Company upon receipt and shall be binding on the Joint Venture Company and the
applicable Purchaser to the extent not inconsistent with the Boundary Conditions
and the Manufacturing Plan.

     

    4.7 Shortfall; Excess
Output.

     

    (a) The Joint
Venture Company shall immediately notify the applicable Purchaser in writing of
any inability to meet a Purchase Order commitment to such
Purchaser.  In such an event, such Purchaser shall accept delivery of
such lesser quantities the Joint Venture Company is able to ship and issue to
the Joint Venture Company a revised Purchase Order to account for such
shortfall.

     

    (b) The Joint
Venture Company shall immediately notify the applicable Purchaser in writing if
the output to be purchased by such Purchaser under this Agreement will exceed,
for any Design ID, the quantity of Conforming Wafers contained in such
Purchaser’s Purchase Order.  In such an event, such Purchaser shall
accept delivery of the additional quantities and issue to the Joint Venture
Company a supplementary Purchase Order to cover such excess.

     

    
      
        
          
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    4.8 Taxes.

     

    (a) General.  All
sales, use and other transfer taxes imposed directly on or solely as a result of
the supplying of Conforming Wafers and Engineering Wafers to a Purchaser and the
payments therefor provided herein shall be stated separately on the Joint
Venture Company’s Proforma Invoices and Final Price Adjustment Memos, collected
from such Purchaser and shall be remitted by the Joint Venture Company to the
appropriate tax authority (“Recoverable Taxes”), unless
such Purchaser provides valid proof of tax exemption prior to the effective date
of the transfer of the Conforming Wafers and Engineering Wafers or otherwise as
permitted by Applicable 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 of taxes from a Purchaser and
remittance of taxes by the Joint Venture Company is required by Applicable 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 such
Purchaser, or pay such taxes to the appropriate governmental entity on a timely
basis, and is subsequently audited by any tax authority, liability of such
Purchaser shall 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 either
Purchaser, 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 business and occupation taxes, and such taxes shall
not be Recoverable Taxes.

     

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

     

    4.9 Invoicing;
Payment.

     

    (a) Along
with each delivery of Conforming Wafers or Engineering Wafers to a Purchaser,
the Joint Venture Company shall invoice such Purchaser for the
aggregate [***] Price of the Conforming Wafers and Engineering Wafers
contained in such delivery (a “Proforma
Invoice”).

     

    (b) No later
than [***] days (or such other number of days as may be agreed in writing by the
Parties) prior to the end of each Delivery Month, each Purchaser shall deliver
to the Joint Venture Company a statement setting forth such Purchaser’s
estimates of [***] and, at the end of such Delivery Month, the Joint Venture
Company shall deliver to such Purchaser a statement setting forth [***] (the
“Estimated Final Price
Statement”).

     

    
      
        
          
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    (c) No later
than [***] (or such other number of days as may be agreed in writing by the
Parties) after the delivery by both Purchasers to the Joint Venture Company of
their respective [***] Reports with respect to any Delivery Month, the Joint
Venture Company shall issue a credit or debit memo (the "Final Price Adjustment Memo")
as appropriate to such Purchaser in an [***].

     

    (d) During
the Ramp Down Period, each Final Price Adjustment Memo issued to Micron by the
Joint Venture Company shall be accompanied by a separate credit or debit memo
(the “[***]”) as appropriate in an [***].

     

    (e) Except as
otherwise specified in this Agreement, each Purchaser shall pay the Joint
Venture Company for the amounts due and owing by, and duly invoiced in a
Proforma Invoice or a Final Price Adjustment Memo (or, in the case of Micron, a
[***]) to, such Purchaser within [***] days following delivery to such Purchaser
of both the Proforma Invoice and Final Price Adjustment Memo (and, in the case
of Micron, the [***]) therefor or, if longer, within [***] days following the
end of the Delivery Month covered thereby.  All amounts owed under
this Agreement are stated, calculated and shall be paid in United States
Dollars.

     

    4.10 Payment to
Subcontractors.  The Joint Venture Company shall be responsible
for, and shall hold the Purchasers harmless from and against, any and all
payments to the vendors or subcontractors the Joint Venture Company utilizes in
the performance of this Agreement.

     

    4.11 Title; Risk of
Loss.  Title to, and risk of loss of, Conforming Wafers,
Engineering Wafers, Secondary Silicon and scrapped wafers shall pass to
Purchasers [***] according to Incoterms 2000, as amended.

     

    4.12 Packaging.  All
shipment packaging of the Conforming Wafers, Engineering Wafers, Secondary
Silicon and scrapped wafers shall be in conformance with the Specifications, the
applicable Purchaser’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 the Joint
Venture Company in accordance with the applicable Purchaser’s reasonable
instructions.

     

    4.13 Shipment.  All
Conforming Wafers, Engineering Wafers, Secondary Silicon and scrapped wafers
shall be prepared for shipment in a manner that:  (a) follows
good commercial practice; (b) is acceptable to common carriers for shipment at
the lowest rate; and (c) is adequate to ensure safe arrival.  The
Joint Venture Company shall mark all containers with (w) necessary lifting,
handling and shipping information; (x) Purchase Order number; (y) date of
shipment; and (z) the name of the applicable Purchaser.  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 a Purchaser’s request, the Joint Venture Company shall
provide drop-shipment of Conforming Wafers, Engineering Wafers, Secondary
Silicon and scrapped wafers to such Purchaser’s customers, contractors or
vendors.  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 such Purchaser upon tender to the
carrier.  In no event shall the Joint Venture Company be obligated to
maintain any significant inventory for the Purchasers.

     

    
      
        
          
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    4.14 Customs
Clearance.  Upon a Purchaser’s request, the Joint Venture
Company shall promptly provide such Purchaser with a statement of origin, and
applicable customs documentation, for Conforming Wafers, Engineering Wafers,
Secondary Silicon and scrapped wafers wholly or partially manufactured outside
of the country of import.

     

    ARTICLE
5

    VISITATIONS;
AUDITS

     

    5.1 Visits.  The
Joint Venture Company shall accommodate each Purchaser’s reasonable requests for
visits to the Joint Venture Company’s fabs and for meetings for the purpose of
reviewing performance of production of Conforming Wafers, including requests for
further information and assistance in troubleshooting performance
issues.

     

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

     

    5.3 Financial
Audit.

     

    (a) Micron
reserves the right to have the Joint Venture Company’s books and records related
to Pricing of the Conforming Wafers delivered to Micron during both the then
current Fiscal Year and the prior Fiscal Year inspected and audited not more
than [***] during any Fiscal Year to ensure compliance with Schedule
4.9.  Such audit shall be performed, at Micron’s expense, by an
independent Third Party auditor acceptable to both Micron and the Joint Venture
Company.  Micron 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, Micron or the Joint Venture Company shall reimburse the
other, as applicable, for any material discrepancies within [***] days after
completion of the audit.  The nature and extent of the discrepancies
identified by the audit shall be reported to Micron and the Joint Venture
Company.  Notwithstanding the foregoing, auditor reports shall not
disclose pricing, or terms of purchase, for any purchases of materials or
equipment by the Joint Venture Company, absent written agreement from the
respective legal counsel of Micron and the Joint Venture Company.  If
any audit reveals a material discrepancy requiring a payment by the Joint
Venture Company, Micron may increase the frequency of such audits to [***] for
the [***] month period.  If any such audit reveals any discrepancy,
the Joint Venture Company shall notify NTC of (i) the existence of such
discrepancy, (ii) whether such discrepancy was found in the computation of the
[***], and (iii) the aggregate amount of the discrepancy by category
([***]).  Notwithstanding the foregoing, the Joint Venture Company
shall not disclose any Pricing information to NTC to the extent such disclosure
would violate Applicable Law.

     

    
      
        
          
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    (b) NTC
reserves the right to have the Joint Venture Company’s books and records related
to Pricing of the Conforming Wafers delivered to NTC during both the then
current Fiscal Year and the prior Fiscal Year inspected and audited not more
than [***] during any Fiscal Year to ensure compliance with Schedule
4.9.  Such audit shall be performed, at NTC’s expense, by an
independent Third Party auditor acceptable to both NTC and the Joint Venture
Company.  NTC 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, NTC or the Joint Venture Company shall reimburse the other, as
applicable, for any material discrepancies within [***] days after completion of
the audit.  The nature and extent of the discrepancies identified by
the audit shall be reported to NTC and the Joint Venture
Company.  Notwithstanding the foregoing, auditor reports shall not
disclose pricing, or terms of purchase, for any purchases of materials or
equipment by the Joint Venture Company, absent written agreement from the
respective legal counsel of NTC and the Joint Venture Company.  If any
audit reveals a material discrepancy requiring a payment by the Joint Venture
Company, NTC may increase the frequency of such audits to [***] for the [***]
month period.  If any such audit reveals any discrepancy, the Joint
Venture Company shall notify Micron of (i) the existence of such discrepancy,
(ii) whether such discrepancy was found in the computation of the [***], and
(iii) the aggregate amount of the discrepancy by category (i.e.,
[***]).  Notwithstanding the foregoing, the Joint Venture Company
shall not disclose any Pricing information to Micron to the extent such
disclosure would violate Applicable Law.

     

    (c) The Joint
Venture Company reserves the right to have a Purchaser’s (the “Audited Purchaser’s”) books
and records related to the Audited Purchaser’s Pricing Report for both the then
current Fiscal Year and the prior Fiscal Year inspected and audited not more
than [***] during any Fiscal Year to ensure compliance with Schedule
4.9.  Such audit shall be performed, at the Joint Venture
Company’s expense, by an independent Third Party auditor acceptable to both the
Joint Venture Company and the Audited Purchaser.  The Joint Venture
Company shall provide [***] days advance written notice to the Audited Purchaser
of its desire to initiate an audit, and the audit shall be scheduled so that it
does not adversely impact or interrupt the Audited Purchaser’s business
operations.  If the audit reveals any material discrepancies, the
Audited Purchaser or the Joint Venture Company shall reimburse the other, as
applicable, for any material discrepancies within [***] days after completion of
the audit.  The nature and extent of the discrepancies identified by
the audit shall be reported to the Audited Purchaser and the Joint Venture
Company.  Notwithstanding the foregoing, auditor reports shall not
disclose (i) pricing, or terms of purchase, for any purchases of materials or
equipment by the Audited Purchaser, (ii) the back end component and module
assembly, packaging and testing costs of the Audited Purchaser, or (iii) the
terms of sales of DRAM Products by the Audited Purchaser, absent written
agreement from the respective legal counsel of the Audited Purchaser and the
Joint Venture Company.  If any audit reveals a material discrepancy
requiring a payment by the Audited Purchaser, the Joint Venture Company may
increase the frequency of such audits to [***] for the subsequent
[***].  If any such audit reveals any discrepancy, the Joint Venture
Company shall notify the Purchaser that is not the Audited Purchaser of (i) the
existence of such discrepancy, (ii) whether such discrepancy was found in the
computation of [***], and (iii) the aggregate amount of the discrepancy by
category (i.e.,
[***]).  Notwithstanding the foregoing, the Joint Venture Company
shall not disclose any Pricing information to the Purchaser that is not the
Audited Purchaser to the extent such disclosure would violate Applicable
Law.

     

    
      
        
          
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    (d) Pricing
information as to which audit rights under this Section 5.3 have
expired shall be deemed final and conclusive for all purposes (absent fraud or
willful misconduct), except to the extent that (i) an audit with respect thereto
has been commenced under this Section 5.3 prior to
such expiration and (ii) the process under this Section 5.3 has not
been fully completed with respect to such audit.

     

    5.4 Micron Financial Audit
Rights with Respect to the [***].  Micron reserves the right to
have the Joint Venture Company’s books and records related to the [***]
delivered to Micron inspected and audited not more than twice during any Fiscal
Year to ensure compliance with Section
4.9.  Such audit shall be performed, at Micron’s expense, by an
independent Third Party auditor acceptable to both Micron and the Joint Venture
Company.  Micron shall provide [***] 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, Micron or the Joint Venture Company shall reimburse the other, as
applicable, for any material discrepancies [***] after completion of the
audit.  The nature and extent of the discrepancies identified by the
audit shall be reported to Micron and the Joint Venture Company.  If
any audit reveals a material discrepancy requiring a payment by the Joint
Venture Company, Micron may increase the frequency of such audits to once per
Fiscal Quarter.

     

    ARTICLE
6

    WARRANTY; HAZARDOUS
SUBSTANCES; DISCLAIMER

     

    6.1 Warranties.

     

    (a) Conforming
Wafers.  The Joint Venture Company makes the following
warranties to the Purchaser of Conforming Wafers hereunder regarding the
Conforming Wafers furnished to such Purchaser hereunder, which warranties shall
survive any delivery, inspection, acceptance, payment or resale of such
Conforming Wafers:

     

    (i) such
Conforming Wafers conform to all agreed Specifications;

     

    (ii) such
Conforming Wafers are free from defects in materials and workmanship;
and

     

    (iii) the Joint
Venture Company has the necessary right, title and interest to such Conforming
Wafers, and, upon the sale of such Conforming Wafers to the applicable
Purchaser, such Conforming Wafers shall be free of liens and
encumbrances.

     

    (b) Engineering Wafers,
Secondary Silicon and Scrapped Wafers.  ALL ENGINEERING WAFERS,
SECONDARY SILICON AND SCRAPPED WAFERS PROVIDED HEREUNDER ARE PROVIDED ON AN “AS
IS,” “WHERE IS” BASIS WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY
KIND.

     

    
      
        
          
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    6.2 Warranty
Claims.  Within a period of time, [***] (“Warranty Claim Period”), such
Purchaser shall notify the Joint Venture Company if it believes that any
Conforming Wafer does not meet the warranty set forth in Section
6.1.  Such Purchaser shall return such Conforming Wafer (or
DRAM Product therefrom) to the Joint Venture Company as directed by the Joint
Venture Company.  If a Conforming Wafer is determined not to be in
compliance with such warranty, then such Purchaser shall be entitled to return
such Conforming Wafer (or DRAM Product therefrom) and receive a credit (or, if
this Agreement has or is terminating with respect to such Purchaser so that it
will not be able to use such credit, a refund) equal to the sum of (a) any
monies paid to the Joint Venture Company by the Purchaser in respect of such
Conforming Wafer [***].

     

    6.3 Inspections.  Each
Purchaser may, upon reasonable advance written notice, request samples of WIP
designated to such Purchaser (whether individually as contemplated by Section 2.4(b) or
together with others as contemplated by Section 2.4(a))
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 under the Manufacturing Plan or its ability to meet delivery
requirements under any accepted Purchase Order.  Any samples provided
hereunder shall be:  (a) limited in quantity to the amount
reasonably necessary for the purposes hereunder; (b) invoiced and paid for
in accordance with Section 4.9; and (c)
included in any performance requirements.  The Joint Venture Company
shall provide reasonable assistance for the safety and convenience of the
requesting Purchaser in obtaining the samples in such manner as shall not
unreasonably hinder or delay the Joint Venture Company’s
performance.

     

    6.4 Hazardous
Substances.

     

    (a) If
Conforming Wafers, Engineering Wafers, Secondary Silicon, scrapped wafers or
DRAM Products provided hereunder include Hazardous Substances as determined in
accordance with Applicable Law, the Joint Venture Company shall ensure that its
employees, agents and subcontractors actually working with such materials in
providing the Conforming Wafers, Engineering Wafers, Secondary Silicon, scrapped
wafers or DRAM Products hereunder to the Purchasers are trained in accordance
with Applicable Law regarding the nature of, and hazards associated with, the
handling, transportation and use of such Hazardous Substances.

     

    (b) To the
extent required by Applicable Law, the Joint Venture Company shall provide each
Purchaser with Material Safety Data Sheets (MSDS) either prior to or
accompanying any delivery of Conforming Wafers, Engineering Wafers, Secondary
Silicon, scrapped wafers or DRAM Products to such Purchaser.

     

    (c) The Joint
Venture Company shall indemnify, defend and hold harmless each Purchaser from
and against any and all Indemnified Losses suffered or incurred by such
Purchaser based on, relating to, or arising under any Environmental Laws and
related to the manufacture of Conforming Wafers, Engineering Wafers, Secondary
Silicon, scrapped wafers or DRAM Products by the Joint Venture
Company.

     

    
      
        
          
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    6.5 Disclaimer.  [***]

     

    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 Mutual
Confidentiality Agreement.  Furthermore, the terms and conditions of
this Agreement shall be considered “Confidential Information” under the Mutual
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 Mutual Confidentiality Agreement, the terms of this Agreement shall
control.

     

    7.2 Masks for Stack DRAM
Products.  Any masks used by the Joint Venture Company to
manufacture Stack DRAM Products under this Agreement shall be based on Stack
DRAM Designs owned by a Purchaser and shall be treated as
“Confidential Information” of such Purchaser under the Mutual Confidentiality
Agreement.

     

    ARTICLE
8

    INDEMNIFICATION

     

    8.1 General
Indemnity.  Subject to Article
9:

     

    (a) the Joint
Venture Company shall indemnify, defend and hold harmless the Purchaser
Indemnified Parties from and against any and all Indemnified Losses based on, or
attributable to, [***]

     

    (b) Micron
shall indemnify, defend and hold harmless the Joint Venture Company from and
against any and all Indemnified Losses based on, or attributable to, [***];
and

     

    (c) NTC shall
indemnify, defend and hold harmless the Joint Venture Company from and against
any and all Indemnified Losses based on, or attributable to, [***].

     

    8.2 Indemnification
Procedures.

     

    (a) Promptly
after the receipt by any Purchaser Indemnified Party or the Joint Venture
Company (an “Indemnified
Party”) of a notice of any Third Party Claim that may be subject to
indemnification under Section 8.1, such
Indemnified Party shall give written notice of such Third Party Claim to the
Party obligated to provide such indemnification under Section 8.1 (an
“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
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    thereof,
copies of all notices and documents (including court papers) received by the
Indemnified Party relating to the Third Party Claim.  The Indemnifying
Party shall have the right to assume the defense of the Indemnified Party with
respect to such Third Party Claim upon written notice to the Indemnified Party
delivered within [***] days after receipt of the particular notice from the
Indemnified Party.  So long as the Indemnifying Party has assumed the
defense of the Third Party Claim in accordance herewith and notified the
Indemnified Party in writing thereof, (i) the Indemnified Party may retain
separate co-counsel, at its sole cost and expense, and participate in the
defense of the Third Party Claim, it being understood that the Indemnifying
Party shall pay all reasonable costs and expenses of counsel for the Indemnified
Party after such time as the Indemnified Party has notified the Indemnifying
Party of such Third Party Claim and prior to such time as the Indemnifying Party
has notified the Indemnified Party that it has assumed the defense of such Third
Party Claim, (ii) the Indemnified Party shall not consent to the entry of any
judgment or enter into any settlement with respect to a Third Party Claim
without the prior written consent of the Indemnifying Party (not to be
unreasonably withheld, conditioned or delayed) and (iii) the Indemnifying Party
shall 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).

     

    (b) Equitable
Remedies.  In the case of any Third Party Claim where the
Indemnifying Party reasonably believes that it would be appropriate to settle
such Third Party Claim using equitable remedies (i.e., remedies involving
future activity of the Indemnified Party), the Indemnifying Party and the
Indemnified Party shall work together in good faith to agree to a settlement;
provided, however, that no Party shall
be under any obligation to agree to any such settlement.

     

    (c) Treatment of Indemnification
Payments; Insurance Recoveries.  Any indemnity payment under
this Agreement shall be decreased by any amounts actually recovered by the
Indemnified Party under Third Party insurance policies with respect to such
Indemnified Losses (net of any premiums paid by such Indemnified Party under the
relevant insurance policy).  Each Party agrees (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 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 Claims 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 

     

    
      
        
          
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    properties,
books, records, papers, documents, plans, drawings, electronic mail and
databases of the Indemnifying Party and relating to matters pertinent to the
conduct of the Indemnifying Party under the Indemnified Party’s custody or
control in accordance with such Party’s corporate documents retention policies,
or longer to the extent reasonably requested by the Indemnifying Party; (iv)
notifying the Indemnifying Party promptly of receipt by the Indemnified Party of
any subpoena or other Third Party request for documents or interviews and
testimony; (v) providing to the Indemnifying Party copies of any documents
produced by the Indemnified Party in response to or compliance with any subpoena
or other Third Party request for documents; and (vi) except to the extent
inconsistent with the Indemnified Party’s obligations under Applicable Law and
except to the extent that to do so would subject the Indemnified Party or its
employees, agents or representatives to criminal or civil sanctions, unless
ordered by a court to do otherwise, not producing documents to a Third Party
until the Indemnifying Party has been provided a reasonable opportunity to
review, copy and assert privileges covering such documents.

     

    ARTICLE
9

    LIMITATION OF
LIABILITY

     

    9.1 Damages
Limitation.  [***].

     

    9.2 Exclusions.  Section 9.1 shall not
apply to Section 6.4(c)
or to any Party’s breach of Article
7.

     

    9.3 Mitigation.  Each
Party shall have a duty to use commercially reasonable efforts to mitigate
damages for which another Party is responsible.

     

    ARTICLE
10

    TERM AND
TERMINATION;

    SUPPLY OBLIGATIONS FOLLOWING
TRIGGERING EVENT

     

    10.1 Term.

     

    (a) Micron
Term.  With respect to Micron, the term of this Agreement (the
“Micron Term”) commences
on the Closing Date and continues in effect until the date of
[***].

     

    (b) NTC
Term.  With respect to NTC, the term of this Agreement (the
“NTC Term”) commences on
the Closing Date and continues in effect until the date of [***].

     

    10.2 Termination.  This
Agreement [***] (a) by Micron [***], (b) by NTC for any reason, [***], or (c) by
the Joint Venture Company [***].  Notwithstanding anything herein to
the contrary, upon the occurrence of an [***] (as defined in the Joint Venture
Agreement), [***].

     

    10.3 Joint Venture Company
Requirements at Termination.

     

    (a) Within
[***] days after (x) the end of the Micron Term or (y) the termination of this
Agreement pursuant to the last sentence of Section 10.2, the
Joint Venture Company:

     

    
      
        
          
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    (i) shall
destroy all production masks obtained for or on behalf of Micron pursuant to
Section 2.3(b);
and

     

    (ii) shall (A)
destroy all copies and other embodiments of any process technology or
information provided to the Joint Venture Company by Micron, or any portion
thereof, in whatever form received, reproduced or stored, (B) certify to Micron
that such destruction is complete, and (C) cease all use of the process
technology or information provided to the Joint Venture Company by
Micron.

     

    (b) Within
[***] days after  (x) the end of the NTC Term or (y) the termination
of this Agreement pursuant to the last sentence of Section 10.2, the
Joint Venture Company:

     

    (i) shall
destroy all production masks obtained for or on behalf of NTC pursuant to Section 2.3(b);
and

     

    (ii) shall (A)
destroy all copies and other embodiments of any process technology or
information provided to the Joint Venture Company by NTC, or any portion
thereof, in whatever form received, reproduced or stored, (B) certify to NTC
that such destruction is complete, and (C) cease all use of the process
technology or information provided to the Joint Venture Company by
NTC.

     

    10.4 Survival.

     

    (a) Survival of Provisions
Applicable to All Parties.  Termination of this Agreement with
respect to either Purchaser shall not affect any of the Parties’ respective
rights accrued, or obligations owed, before such termination, including any
rights or obligations of the Parties in respect of any accepted Purchase Orders
existing at the time of such termination.  In addition, the following
shall survive termination of this Agreement with respect to either Purchaser for
any reason: Sections
2.7, 4.2, 4.5, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 6.1, 6.2, 6.4(c) and 6.5, and Articles 7, 8, 9, 10 and 11.

     

    (b) Survival of the Agreement
for Non-Terminating Parties.  Upon the termination of this
Agreement with respect to Micron as a result of the expiration of the Micron
Term, this Agreement shall remain in full force and effect as between NTC and
the Joint Venture Company.  Upon the termination of this Agreement
with respect to NTC as a result of the expiration of the NTC Term, this
Agreement shall remain in full force and effect as between Micron and the Joint
Venture Company.

     

    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, in the event of an assertion by Micron or NTC, the
Joint Venture Company and, in the event of an assertion by the Joint Venture
Company, Micron and NTC specifying the obligation to be excused and describing
the events or conditions constituting the Force Majeure Event.

     

    
      
        
          
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    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 under the indemnification provisions or
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
injunctive relief may be applied for and granted in connection
therewith.

     

    11.3 Assignment.  [***].

     

    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 such
Party’s obligations 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) confirmation of delivery by a standard overnight or recognized international
carrier, or (c) 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 Joint Venture Company.

     

    
      	
              Inotera
      Memories Inc.

              Hwa-Ya
      Technology Park

              667,
      Fuhsing 3rd Road

              Kueishan,
      Taoyuan

              Taiwan,
      ROC.

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

              Attention:
      General Counsel

            
	 
      
	
              In
      the case of Micron:

            
	 
      
	
              Micron
      Technology, Inc.

              8000
      S. Federal Way

              Mail
      Stop 1-507

              Boise,
      ID 83716

              Attn:
      General Counsel

              Facsimile:
      (208) 368-4537

            


    

     

    
      
        
          
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              In
      the case of NTC:

            
	 
      
	
              Nanya
      Technology Corporation

              Hwa-Ya
      Technology Park 669

              Fuhsing
      3 RD. Kueishan

              Taoyuan,
      Taiwan, ROC

              Attn:  Legal  department

              Facsimile:
      886-3-396-2226

            


    

    


     

    11.6 Waiver.  The
failure at any time of a Party to require performance by another 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 another
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 and effect 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 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.  Except as expressly provided in Section 8, 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.

     

    11.10 Entire
Agreement.  This Agreement, together with the Schedules hereto
and the agreements and instruments expressly provided for herein (including the
Mutual Confidentiality Agreement), constitute the entire agreement of the
Parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, oral and written, between the Parties with
respect to the subject matter hereof.

     

    11.11 Choice of
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.

     

    
      
        
          
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    11.12 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 hereby 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.

     

    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.

     

    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 at all times (except as otherwise
stipulated in Appendix I), for so long as this Agreement remains in effect (and
notwithstanding any termination of the Joint Venture Agreement), maintain in
effect insurance of the types and in the amounts set forth on Appendix I or as
otherwise agreed by the Parties from time to time.  Such insurance
coverage may be provided through the coverage under one or more insurance
policies maintained by Micron or NTC.

     

    11.16 Initial Implementation of
this Agreement.  The manufacturing plan currently in effect for
the Joint Venture Company shall be deemed to be the initial Manufacturing Plan
hereunder.  On the Closing Date, NTC shall be deemed to have placed a
Purchase Order for the quantity, by Design ID, of Conforming Wafers and
Engineering Wafers to be supplied to it by the Joint Venture Company during
December 2008 as indicated in the initial Manufacturing
Plan.  Notwithstanding anything in the PPCRA to the contrary, (a) this
Agreement shall govern with respect to any wafers delivered by the Joint Venture
Company to a Purchaser during the period beginning on December 1, 2008 and
ending on the last day of the Micron Term or the NTC Term, as applicable to such
Purchaser, and (b) the PPCRA shall govern with respect to any wafers delivered
by the Joint Venture Company to NTC prior to December 1, 2008.

     

    [SIGNATURE
PAGES FOLLOW]

    


    
      
        
          
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            CONFIDENTIAL

          

        

      

    

    


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

     

    
      	 
      	
              INOTERA
      MEMORIES, INC.

               

               

               

            
	 
      	
              By: /s/ Joseph
      Hsieh                                                           

            
	 
      	
              Name: Joseph
      Hsieh

            
	 
      	
              Title:    Supervisor

            
	 
      	 
      


    

    


     

    


     

    THIS
IS A SIGNATURE PAGE FOR THE SUPPLY AGREEMENT ENTERED

    INTO
BY AND BETWEEN MICRON, NTC AND

    JOINT
VENTURE COMPANY

     

    


    
      
        
          
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            NTC/MICRON
CONFIDENTIAL

          

        

      

    

    


    


    
      	 
      	 
      
	 
      	
              MICRON
      TECHNOLOGY, INC.

               

               

               

            
	 
      	
              By: /s/ D. Mark
      Durcan                                                           

            
	 
      	
              D.
      Mark Durcan

            
	 
      	
              President
      and Chief Operating Officer

            
	 
      	 
      


    

    


    


    
 

     

    THIS
IS A SIGNATURE PAGE FOR THE SUPPLY AGREEMENT ENTERED

    INTO
BY AND BETWEEN MICRON, NTC AND

    JOINT
VENTURE COMPANY

     

    


    
      
        
          
            DLI-6215923v22


          

           


        

        
           


          
            

          

        

        
           


          
            NTC/MICRON
CONFIDENTIAL

          

        

      

    

    


    


    
      	 
      	 
      
	 
      	
              NANYA
      TECHNOLOGY CORPORATION

               

               

            
	 
      	
              By: /s/ Jih
      Lien                                                           

            
	 
      	
              Jih
      Lien

            
	 
      	
              President

            


    

    

 

     

    THIS
IS A SIGNATURE PAGE FOR THE SUPPLY AGREEMENT ENTERED

    INTO
BY AND BETWEEN MICRON, NTC AND

    JOINT
VENTURE COMPANY

     

    


     

    
      
        DLI-6215923v22