exhibit10_77.htm


    


       

      EXHIBIT 10.77
        


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



      TECHNOLOGY
TRANSFER AGREEMENT

      


      This
TECHNOLOGY TRANSFER AGREEMENT
(this “Agreement”), is made and
entered into as of this 26th day of November, 2008 (“Effective Date”), by and among
Nanya Technology Corporation Nanya Technology Corporation
[Translation from Chinese] , a company incorporated under the laws of the
Republic of China (“NTC”), Micron Technology, Inc,
a Delaware corporation (“Micron”), and Inotera
Memories, Inc., a company-limited-by-shares incorporated under the laws of the
Republic of China (“Joint
Venture Company”).  (NTC, Micron and Joint Venture Company are
referred to in this Agreement individually as a “Party” and collectively as the
“Parties”).

      


      RECITALS

       

      A.           Pursuant
to the Joint Venture Documents (as defined hereinafter) and the transactions
contemplated thereby, an Affiliate of Micron, Micron Semiconductor B.V., a
private limited liability company organized under the laws of the Netherlands
(“MNL”), has purchased
an ownership interest in the Joint Venture Company to manufacture Stack DRAM
Products (as defined hereinafter) for supply and delivery solely to Micron and
NTC.

       

      B.           The
Parties desire to outline the procedures under which Micron and NTC will
transfer certain technology related to Process Nodes (as defined hereafter) to
the Joint Venture Company that will be used by the Joint Venture Company to
manufacture Stack DRAM Products for Micron and NTC.

       

      AGREEMENT

       

      NOW,
THEREFORE, in consideration of the mutual promises and agreements herein set
forth, the Parties, intending to be legally bound, hereby agree as
follows.

       

      ARTICLE
1

      DEFINITIONS; CERTAIN
INTERPRETATIVE MATTERS

       

      1.1 Definitions.

       

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

       

      “Applicable Law” means any
applicable laws, statutes, rules, regulations, ordinances, orders, codes,
arbitration awards, judgments, decrees or other legal requirements of any
Governmental Entity.

       


      
        
          
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      “Assigned Employees” shall,
with respect to Micron, have the meaning set forth in the Micron Assigned
Employee Agreement by and between Micron and the Joint Venture Company dated as
of the Effective Date and, with respect to NTC, have the meaning set forth in
the NTC Assigned Employee Agreement by and between NTC and the Joint Venture
Company dated as of Effective Date.

       

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

       

      “Confidential Information”
means that information described in Section 5.1 deemed to
be “Confidential Information” under the Mutual Confidentiality
Agreement.

       

      “Contractor” means a Third
Party who (a) is contracted by a Party in connection with work to be conducted
by such Party under a SOW, (b) has agreed to assign to such contracting Party
all rights in and to any inventions, discoveries, improvements, processes,
copyrightable works, mask works, trade secrets or other technology that are
conceived or first reduced to practice, whether patentable or not, as a result
of any performance by such Third Party of any obligations of such Party under a
SOW, and all Patent Rights, IP Rights and other intellectual property rights in
the foregoing, and (c) has agreed to grant a license to such contracting Party,
with the right to sublicense of sufficient scope that includes the other Party,
under all Patent Rights, IP Rights and other rights of the Third Party
reasonably necessary for such contracting Party and the other Party to exploit
the work product created by the Third Party consistent with the rights granted
by the contracting Party to the other Party under the Joint Venture
Documents.

       

      “Control” (whether capitalized
or not) 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 [***] 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.

       

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

       

      “Force Majeure Event” means the
occurrence of an event or circumstance beyond the reasonable control of a Party
and includes, without limitation, (a) explosions, fires, flood, earthquakes,
catastrophic weather conditions, or other elements of nature or acts of God; (b)
acts of war (declared or undeclared), acts of terrorism, insurrection, riots,
civil disorders, rebellion or sabotage; (c) acts of federal, state, local or
foreign Governmental Entity; (d) labor disputes, lockouts, strikes or other
industrial action, whether direct or indirect and whether lawful or unlawful;
(e) failures or fluctuations in electrical power or telecommunications service
or equipment; and (f) delays caused by the other Party or Third-Party
nonperformance (except for delays caused by a Party’s contractors,
subcontractors or agents).

       

      
        
          
            
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      “GAAP” means, with respect to
Micron, United States generally accepted accounting principles, and with respect
to NTC and the Joint Venture Company, Republic of China generally accepted
accounting principles, in each case, as consistently applied by the Party for
all periods at issue.

       

      “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.

       

      “IP Rights” means copyrights,
rights in trade secrets, Mask Work Rights and pending applications or
registrations of any of the foregoing anywhere in the world.  The term
“IP Rights” does not include any Patent Rights or rights in
trademarks.

       

      “JDP Agreement” means that
certain Amended and Restated Joint Development Program Agreement by and between
Micron and NTC  effective as of the Effective Date.

       

      “JDP Co-Chairman” and “JDP Co-Chairmen” means the JDP
Co-Chairman or JDP Co-Chairmen, respectively, appointed by Micron or NTC under
the JDP Agreement, as such individuals are communicated to the Joint Venture
Company from time to time.

       

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

       

      “JDP Design” means any Stack
DRAM Design resulting from the research and development activities of the
Parties pursuant to the JDP Agreement.

       

      “JDP Inventions” means all
discoveries, improvements, inventions, developments, processes or other
technology, whether patentable or not, that is/are conceived by one or more
Representatives of one or more of the Parties in the course of activities
conducted under the JDP Agreement.

       

      “JDP Process Node” means any
Primary Process Node or Optimized Process Node resulting from the research and
development activities of the Parties pursuant the JDP Agreement.

       

      “JDP Work Product” means
[***].

       

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

       

      “Joint Venture Documents” means
that certain Joint Venture Agreement between MNL and NTC dated as of the
Effective Date relating to the Joint Venture Company and the agreements listed
on Schedule A
of that agreement.

       

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

       

      
        
          
            
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      “MeiYa” means MeiYa Technology
Corporation, a company-limited-by-shares incorporated under the laws of the
Republic of China.

       

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

       

      “MNL” shall have the meaning
set forth in the Recitals to this Agreement.

       

      “Mutual Confidentiality
Agreement” means that certain Second Amended and Restated Mutual
Confidentiality Agreement dated as of the Effective Date among NTC, Micron, MNL,
MeiYa and the Joint Venture Company.

       

      “Optimized Process Node” means
[***].

       

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

       

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

       

      “Patent Prosecution” means (a)
preparing, filing and prosecuting patent applications (of all types), and (b)
managing any interference, reexamination, reissue, or opposition proceedings
relating to the foregoing.

       

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

       

      “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.

       

      “Primary Process Node” means
[***].

       

      “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 Stack DRAM 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.

       

      “Process Node” means
[***].

       

      “Process Technology” means
that process technology developed before expiration of the Term and utilized in
the manufacture of Stack DRAM wafers, including Probe Testing and technology
developed through Product Engineering thereof, regardless of the form in
which any of the foregoing is stored, but excluding any Patent Rights and any
technology, trade secrets or know-how that relate to and are used in any
back-end operations (after Probe Testing).

       

      
        
          
            
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      “Product Engineering” means any
one or more of the engineering activities described on Schedule 7 to the JDP
Agreement as applied to Stack DRAM Products or Stack DRAM Modules.

       

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

       

      “Representative”
means  with respect to a Party, any director, officer, employee, agent
or Contractor of such Party or a professional advisor to such Party, such as an
attorney, banker or financial advisor of such Party who is under an obligation
of confidentiality to such Party by contract or ethical rules applicable to such
Person.

       

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

       

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

       

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

       

      “Stack DRAM Design” means, with respect to
a Stack DRAM Product, the corresponding design components, materials and
information listed on Schedule 1 or as
otherwise determined by the JDP Committee in a SOW.

       

      “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.

       

      “Tax” or “Taxes” means any federal,
state, local or foreign net income, gross income, gross receipts, sales, use ad
valorem, transfer, franchise, profits, service, service use, withholding,
payroll, employment, excise, severance, stamp, occupation, premium, property,
customs, duties or other type of fiscal levy and all other taxes, governmental
fees, registration fees, assessments or charges of any kind whatsoever, together
with any interest and penalties,  additions to tax or additional
amounts imposed or assessed with respect thereto.

       

      “Taxing Authority” means any
Governmental Entity exercising any authority to impose, regulate or administer
the imposition of Taxes.

       

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

       

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

       

      
        
          
            
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      “TTA 68-50” means the
Technology Transfer Agreement For 68-50nm Process Nodes by and between Micron
and the Joint Venture Company signed on October 11, 2008 but effective as of the
Effective Date.

       

      “TTLA” means the Amended and
Restated Technology Transfer and License Agreement dated as of the Effective
Date by and between Micron and NTC.

       

      “Works Registration” means any
registrations of any JDP Work Product.

       

      1.2 Certain Interpretive
Matters.

       

      (a) Unless
the context requires otherwise, (1) all references to Sections, Articles,
Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
Appendices or Schedules of or to this Agreement, (2) each accounting term
not otherwise defined in this Agreement has the meaning commonly applied to it
in accordance with GAAP, (3) words in the singular include the plural and
vice versa, (4) the term “including” means “including
without limitation,” and (5) the terms “herein,” “hereof,” “hereunder” and words of
similar import shall mean references to this Agreement as a whole and not to any
individual section or portion hereof.  Unless otherwise denoted, all
references to $ or dollar amounts will be to lawful currency of the United
States of America.  All references to “day” or “days” will mean calendar
days.

       

      (b) No
provision of this Agreement will be interpreted in favor of, or against, any of
the Parties by reason of the extent to which (1) any such Party or its counsel
participated in the drafting thereof or (2) any such provision is inconsistent
with any prior draft of this Agreement or such provision.

       

      ARTICLE
2

      TRANSFER OF TECHNOLOGY TO
JOINT VENTURE COMPANY

       

      2.1 Delivery of JDP Process
Nodes and JDP Designs to Joint Venture Company.  Micron and NTC
shall transfer to the Joint Venture Company JDP Work Product associated with JDP
Process Nodes and JDP Designs in the form and at the time(s) and manner as
mutually agreed in writing by NTC and Micron and as approved by the Board of
Directors of the Joint Venture Company.

       

      2.2 Mask
Purchases.  As reasonably requested by the Joint Venture
Company and to the extent fulfilling such request would not cause disruption of
Micron’s operations, Micron will use commercially reasonable efforts to assist
the Joint Venture Company [***].

       

      2.3 On-Site
Visitations.  Each Party and its Representatives shall observe
and be subject to all safety, security and other policies and regulations
regarding visitors and contractors while on site at a facility of the other
Party or its Affiliate.  A Party's Representatives who access any
facility of the other Party or its Affiliate shall not interfere with, and
except as otherwise agreed by the Parties, shall not participate in, the
business or operations of the facility accessed.

       

      ARTICLE
3

      PAYMENTS

       

      
        
          
            
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      3.1 Technology Transfers of
Primary Process Nodes to Joint Venture Company.  Upon the
completion of the transfer to the Joint Venture Company of each Primary Process
Node that is a JDP Process Node [***], as such completion is defined in the
applicable Process SOW or otherwise agreed by Micron and NTC, the Joint Venture
Company shall pay to each of Micron and NTC an amount [***].

       

      3.2 Joint Venture Company
Development Costs.  [***].

       

      3.3 Invoices;
Payments.

       

      (a) All
invoices under this Agreement may be sent by any method described in Section 8.1 or
electronically with hardcopy confirmation sent promptly thereafter by any method
described in Section
8.1.  Such invoices should be sent to the following contacts or
such other contact as may be specified hereafter pursuant to a notice sent in
accordance with Section
8.1:

       

      Invoices to Joint Venture
Company:

       

      [***]

      Inotera
Memories, Inc.

      Hwa-Ya
Technology Park

      667,
Fuhsing 3 Rd., Kueishan, Taoyuan

      Taiwan,
R.O.C.

      [***]

       

      Invoices to
NTC:

       

      [***]

      Nanya
Technology Corp.

      Hwa-Ya
Technology Park 669, Fuhsing 3 Rd. Kueishan, Taoyuan, Taiwan, R. O.
C.

      [***]

      


      Invoices to
Micron:

      


      [***]

      8000 S.
Federal Way

      P.O. Box
6, MS 1-107

      Boise,
Idaho, USA 83707-0006

      [***]

      


      


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

       

      
        
          
            
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      (c) Payment
is due on all amounts properly invoiced within thirty (30) days of receipt of
invoice.  All payments made under this Agreement shall be made by
check sent to the following person or by such other manner designated by such
person:

       

      Payments to
Micron:

      


      [***]

      8000 S.
Federal Way

      P.O. Box
6, MS 1-107

      Boise,
Idaho, USA 83707-0006

      [***]

      


      Payments to
NTC:

       

      [***]

      Nanya
Technology Corp.

      Hwa-Ya
Technology Park 669, Fuhsing 3 Rd. Kueishan, Taoyuan, Taiwan, R. O.
C.

      [***]

      


       

      Payment to Joint Venture
Company:

       

      [***]

      Inotera
Memories, Inc.

      Hwa-Ya
Technology Park

      667,
Fuhsing 3 Rd., Kueishan, Taoyuan

      Taiwan,
R.O.C.

      [***]

       

      


      3.4 Interest.  Any
amounts payable to a Party hereunder and not paid within the time period
provided shall accrue interest, from the time such payment was due until the
time payment is actually received, at the rate of [***].

       

      3.5 Taxes.

       

      (a) All
sales, use and other transfer Taxes imposed directly on or solely as a result of
the services, rights licensed or technology transfers or the payments therefor
provided herein shall be stated separately on the service provider’s, licensor’s
or technology transferor’s invoice, collected from the service recipient,
licensee or technology transferee and shall be remitted by service provider,
licensor or technology transferor to the appropriate Taxing Authority (“Recoverable Taxes”), unless
the service recipient, licensee or technology transferee provides valid proof of
tax exemption prior to the Effective Date or otherwise as permitted by law prior
to the time the service provider, licensor or technology transferor is required
to pay such taxes to the appropriate Taxing Authority.  When property
is delivered, rights granted and/or services are provided or the benefit of
services occurs within jurisdictions in which collection and remittance of Taxes
by the service recipient, licensee or technology transferee is required by law,
the service recipient, licensee or technology transferee shall have sole
responsibility for payment of said Taxes to the appropriate Taxing
Authority.  In the event any Taxes are Recoverable Taxes and the
service provider, licensor or technology transferor does not collect such Taxes
from the service recipient, licensee or technology transferee or pay such Taxes
to the appropriate Governmental Entity on a timely basis, and is subsequently
audited by any Taxing Authority, liability of the service recipient, licensee or
technology transferee will be limited to the Tax assessment for such Recoverable
Taxes, with no reimbursement for penalty or interest charges or other amounts
incurred in connection therewith.  Except as provided in Section 3.5(b), Taxes
other than Recoverable Taxes shall not be reimbursed by the service recipient,
licensee or technology transferee, and each Party is responsible for its own
respective income Taxes (including franchise and other Taxes based on net income
or a variation thereof), Taxes based upon gross revenues or receipts, and Taxes
with respect to general overhead, including but not limited to business and
occupation Taxes, and such Taxes shall not be Recoverable Taxes.

       

      
        
          
            
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      (b) In the
event that the service recipient, licensee or technology transferee is
prohibited by Applicable Law from making payments to the service provider,
licensor or technology transferor unless the service recipient, licensee or
technology transferee deducts or withholds Taxes therefrom and remits such Taxes
to the local Taxing Authority, [***].

       

      3.6 Payment
Delay.  Notwithstanding anything to the contrary in this
Agreement, if requested by Micron by notice in accordance with Section 9.1, Inotera
will [***] when due until notified by Micron in accordance with Section
9.1.

       

      ARTICLE
4

      INTELLECTUAL
PROPERTY

       

      4.1 No Transfer of IP
Rights.  Nothing in this
Agreement [***].

       

      4.2 Invention Disclosure
Procedures; Inventorship; Authorship.

       

      (a) As soon
as reasonably practicable [***], the Joint Venture Company shall, and Micron and
NTC shall cause the Joint Venture Company to, introduce procedures to encourage
and govern the submission of disclosures of inventions by its Representative(s)
to [***].  Such procedures shall include (i) a policy statement
encouraging the submission of such invention disclosures, (ii) appropriate
invention disclosure forms, (iii) a commitment on the part of the Joint Venture
Company to obtain relevant invention disclosure forms from its Representatives
and to submit such forms to the [***], (iv) the formation and operation of a
Patent Review Committee to evaluate invention disclosures and steer the filing
and prosecution of patent applications with respect thereto, and (v)
[***].

       

      (b) Inventorship
for any inventions conceived by the Joint Venture Company or any of its
Representatives, including JDP Inventions, shall be determined in accordance
with United States patent laws.

       

      (c) Authorship
for all works of authorship and mask works created by or made by or for the
Joint Venture Company or any of its Representatives, including JDP Work Product,
whether registered or not, shall be determined in accordance with United States
copyright laws and laws concerning Mask Work Rights, as applicable.

       

      
        
          
            
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      4.3 Ownership of Inventions and
Work Product.

       

      [***]

       

      4.4 [***]

       

      [***]

       

      ARTICLE
5

      CONFIDENTIALITY

       

      5.1 Confidentiality
Obligations.  All information (including JDP Work Product, JDP
Inventions, JDP Process Nodes and JDP Designs) provided, disclosed, created or
obtained in connection with this Agreement, the TTA 68-50 or the performance of
any of the Parties’ activities under this Agreement, the TTA 68-50 or the JDP
Agreement, including the performance of activities under a SOW, shall be deemed
“Confidential Information” subject to all applicable provisions of the Mutual
Confidentiality Agreement.  The terms and conditions of this Agreement
shall be considered “Confidential Information” under the Mutual Confidentiality
Agreement for which each Party shall be considered a “Receiving Party” under
such agreement.  The Joint Venture Company shall be deemed a
“Receiving Party” under such agreement with respect to any inventions and works
owned by the Joint Venture Company or assigned by or that should be assigned by
the Joint Venture Company to Micron or to Micron and NTC under this
Agreement.

       

      ARTICLE
6

      WARRANTIES;
DISCLAIMERS

       

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

       

      (a) a
warranty or representation that any manufacture, sale, lease, use or other
disposition of any products based upon JDP Work Product, JDP Inventions, JDP
Process Nodes or JDP Designs or other technology transferred hereunder will be
free from infringement, misappropriation or other violation of any Patent
Rights, IP Rights or other intellectual property rights of any
Person;

       

      (b) an
agreement to bring or prosecute proceedings against Third Parties for
infringement, misappropriation or other violation of rights or conferring any
right to bring or prosecute proceedings against Third Parties for infringement,
misappropriation or other violation of rights; or

       

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

       

      
        
          
            
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      6.2 Third Party
Software.  Use of any inventions or works exchanged among any
of the Parties under this Agreement may require use of Software owned by a Third
Party and not subject to any license granted under any of the Joint Venture
Documents.  Nothing in this Agreement shall be construed as granting
to any Party, any right, title or interest in, to or under any Software owned by
any Third Party.  Except as may be specified otherwise in any of the
other Joint Venture Documents, any such Software so required is solely the
responsibility of the each of the Parties.  Moreover, should a Party
who transfers technology under this Agreement discover after such transfer that
it has provided Software to the other Party that it was not entitled to provide,
such providing Party shall promptly notify the other Party and the recipient
shall return such Software to the providing Party and not retain any copy
thereof.

       

      6.3 DISCLAIMER.
[***]

       

      ARTICLE
7

      LIMITATION OF
LIABILITY

       

      7.1 LIMITATION OF
LIABILITY.  [***]

       

      ARTICLE
8

      TERM AND
TERMINATION

       

      8.1 Term.  The
term of this Agreement commences on the Effective Date and continues in effect
until terminated in accordance with Section
8.2.  (The period from the Effective Date until termination is
the “Term”).

       

      8.2 Termination of this
Agreement.

       

      (a) This
Agreement and the TTA 68-50 shall terminate automatically if:

       

      [***]

       

      (b) Either
Micron or NTC may terminate this Agreement and/or the TTA 68-50 by notice to the
other Parties if either of the other Parties commits a material breach of this
Agreement or if Micron or the Joint Venture Company commits a material breach of
TTA 68-50, and any such breach remains uncured for more than [***] of the breach
from Micron or NTC.

       

      (c) [***].

       

      8.3 Effects of
Termination.

       

      (a) Termination
of this Agreement shall not affect any of the Parties’ respective rights accrued
or obligations owed before termination.  In addition, the following
shall survive termination of this Agreement for any reason:  Articles 1, 3, 5, 6, 7 and 9 and Sections 4.1, 4.2(b) and (c), 4.4 and 8.3.  Section 4.3 shall
survive solely with respect to inventions and works of authorship made or
created by the Joint Venture Company before termination and the right to claim
reimbursement.

       

      
        
          
            
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      (b) At such
time when this Agreement, the TTA 68-50 and the TTLA have been terminated, the
Joint Venture Company shall:

       

      [***]

       

      ARTICLE
9

      MISCELLANEOUS

       

      9.1 Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed given upon (a) transmitter’s confirmation of a receipt of a
facsimile transmission, (b) confirmed delivery by a standard overnight carrier
or when delivered by hand, 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):

       

      If to
NTC:                Nanya
Technology Corporation

      Hwa-Ya Technology Park
669

      Fuhsing 3 RD. Kueishan

      Taoyuan, Taiwan, ROC

      Attention: Legal
Department

      Fax: 886.3.396.2226

      


      If to
Micron:             Micron
Technology, Inc.

      8000 S. Federal Way

      Mail Stop 1-507

      Boise, ID 83716

      Attention: General
Counsel

      Fax: 208.368.4537

      


      If to the Joint Venture
Company:

       

      Inotera Memories, Inc.

      667, Fuhsing 3rd Road,

      Haw-Ya Technology Park Kueishan,
Taoyuan 333

      Taiwan, ROC

      Attention: Legal
Department

      Fax: +886 3 327 2988 ext
3385

      


       with a copy to each of
Micron and NTC as identified above.

       

      9.2 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.

       

      9.3 Assignment.  [***]

       

      
        
          
            
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      9.4 Third Party
Rights.  Nothing in this Agreement, whether express or implied,
is intended or shall be construed to confer, directly or indirectly, upon or
give to any Person, other than the Parties hereto, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or other provision contained herein.

       

      9.5 Force
Majeure.  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.

       

      9.6 Choice of
Law.  Except as provided in Sections 4.2 (b) and
(c), this
Agreement shall be construed and enforced in accordance with and governed by the
laws of the State of Delaware, USA, without giving effect to the principles of
conflict of laws thereof.

       

      9.7 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 a state or federal court of competent jurisdiction
located in the State of California, USA, and each of the Parties to this
Agreement hereby consents and submits to the exclusive jurisdiction of such
courts (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.

       

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

       

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

       

      9.10 Entire
Agreement.  This Agreement, together with its Schedules and the
agreements and instruments expressly provided for herein, including the
applicable terms of the other Joint Venture Documents, constitute the entire
agreement of the Parties hereto with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral and written, between the
Parties hereto with respect to the subject matter hereof.

       

      
        
          
            
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      9.11 Severability.  Should
any provision of this Agreement be deemed in contradiction with the laws of any
jurisdiction in which it is to be performed or unenforceable for any reason,
such provision shall be deemed null and void, but this Agreement shall remain in
full force in all other respects.  Should any provision of this
Agreement be or become ineffective because of changes in Applicable Laws or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby.  If such circumstances
arise, the Parties hereto shall negotiate in good faith appropriate
modifications to this Agreement to reflect those changes that are required by
Applicable Law.

       

      9.12 Counterparts.  This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.

       

      [Signature
pages follow.]


      
        
          
            LAI-2988108v4


          

           


        

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

       

      


       

      
        	 
      	
                NANYA
      TECHNOLOGY CORPORATION

                 

                 

              
	 
      	
                By:

              	
                /s/ Jih
      Lien                                                           

              
	 
      	
                Name:

              	
                Jih
      Lien

              
	 
      	
                Title:

              	
                President

              


      

      


       

      


       

      


      


      


      [Signature
pages follow.]

      


      


      


      THIS IS A
SIGNATURE PAGE FOR THE TECHNOLOGY TRANSFER AGREEMENT ENTERED INTO BY AND AMONG
NTC, MICRON AND THE JOINT VENTURE COMPANY

      



      
        
          
            LAI-2988108v4


          

           


        

        
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                MICRON
      TECHNOLOGY, INC.

                 

                 

              
	 
      	
                By:

              	
                /s/ D. Mark
      Durcan                                                           

              
	 
      	
                Name:

              	
                D.
      Mark Durcan

              
	 
      	
                Title:

              	
                President
      and Chief Operating Officer

              


      

      


      


       

      


      


      


      [Signature
page follows.]

      


      


      


      THIS IS A
SIGNATURE PAGE FOR THE TECHNOLOGY TRANSFER AGREEMENT ENTERED INTO BY AND AMONG
NTC, MICRON AND THE JOINT VENTURE COMPANY


      
        
          
            LAI-2988108v4


          

           


        

        
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                INOTERA
      MEMORIES, INC.

                 

                 

              
	 
      	
                By:

              	
                /s/ Joseph
      Hsieh                                                           

              
	 
      	
                Name:

              	
                Joseph
      Hsieh

              
	 
      	
                Title:

              	
                Supervisor

              


      

      


      


      


      


      


      THIS IS A
SIGNATURE PAGE FOR THE TECHNOLOGY TRANSFER AGREEMENT ENTERED INTO BY AND AMONG
NTC, MICRON AND THE JOINT VENTURE COMPANY

      



      
        LAI-2988108v4


      

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