exhibit10_72.htm


     

    EXHIBIT
10.72



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





    
      NTC/MICRON
CONFIDENTIAL

    

    JOINT
VENTURE AGREEMENT

     

    This
JOINT VENTURE AGREEMENT, dated this 26th day of November, 2008, is made and
entered into by and between MICRON SEMICONDUCTOR B.V. (hereinafter “MNL”), a private limited
liability company organized under the laws of the Netherlands and NANYA
TECHNOLOGY CORPORATION Nanya Technology Corporation
[Translation from Chinese] (hereinafter “NTC”), a company incorporated
under the laws of the Republic of China (“ROC” or “Taiwan”) (MNL and NTC are each
referred to individually as a “JV Party,” and collectively as
the “JV
Parties”).

     

    RECITALS

     

    A.           NTC
and Infineon Technologies AG, a company incorporated under the laws of Germany
(hereinafter “Infineon”), have previously
formed Inotera Memories, Inc. Inotera Memories Inc.
[Translation from Chinese], a company incorporated under the laws
of the ROC (the “Joint Venture
Company”).

     

    B.           Infineon
subsequently assigned to Qimonda AG, a company incorporated under the laws of
Germany (hereinafter “Qimonda”), all of Infineon’s
Shares in the Joint Venture Company.

     

    C.           In
accordance with that certain Share Purchase Agreement, dated
October 11, 2008 (the “Qimonda/MNL Share Purchase
Agreement”), by and between Micron Technology, Inc., a Delaware
corporation (“Micron”),
MNL, Qimonda and Qimonda Holding B.V., a private limited company organized under
the laws of the Netherlands (“Qimonda B.V.”), MNL is
acquiring from Qimonda and Qimonda B.V. Shares in the Joint Venture
Company.

     

    D.           The
JV Parties are now entering into this Agreement to set forth certain agreements
regarding the ownership, governance and operation of the Joint Venture
Company.

     

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

     

    ARTICLE
1


     

    DEFINITIONS;
INTERPRETATION

     

    Section
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:

     

    “2nd Closing” shall have the
meaning set forth in the Qimonda/MNL Share Purchase Agreement.

     

    “Accountants” shall have the
meaning set forth in Section 10.2(c)(ii) of this Agreement.

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

    “Affiliate” means, with respect
to any specified Person, any other Person that, directly or indirectly,
including through one or more intermediaries, controls, 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 Joint
Venture Agreement.

     

    “Annual Budget” shall have the
meaning set forth in Section 7.5(a)(ii) of this Agreement.

     

    “Annual Business Plan” shall
have the meaning set forth in Section 7.5(a)(i) of this Agreement.

     

    “Answer Notice” shall have the
meaning set forth in Section 7.3(b) of 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.

     

    “Articles of Incorporation”
means the Articles of Incorporation of the Joint Venture Company in the form and
substance as Exhibit A attached to this Agreement, and as amended from time to
time.

     

    “Baseline Flow” shall have the
meaning set forth in Section 7.2(b)(v) of this Agreement.

     

    “Board of Directors” means the
board of directors of the Joint Venture Company.

     

    “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.

     

    “Business Plan” means any
Annual Business Plan.

     

    “Buyout Notice” shall have the
meaning set forth in Section 13.1(a) of this Agreement.

     

    “Buyout Price” shall have the
meaning set forth in Section 12.3(a) of this Agreement.

     

    “Buyout Shares” shall have the
meaning set forth in Section 13.1(a) of this Agreement.

     

    “Buyout Subsidiary” shall have
the meaning set forth in Section 13.2 of this Agreement.

     

    “Chairman” means the Chairman
of the Board of Directors.

     

    “Change Notice” shall have the
meaning set forth in Section 7.3(b) of this Agreement.

     

    “Closing” means the
consummation of the 2nd Closing.

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

    “Closing Date” means the date
on which the Closing occurs.  For purposes of this Agreement and the
other agreements and instruments referenced herein, the Closing shall be deemed
to have occurred at 12:01 a.m. in Taipei, Taiwan on such date.

     

    “Competitively Sensitive
Information” means any information, in whatever form, that has not been
made publicly available relating to products and services that Micron or a
Subsidiary of Micron, on the one hand, and NTC or a Subsidiary of NTC, on the
other hand, sells in competition with the other at the execution of this
Agreement or thereafter, including DRAM Products, to the extent such information
of the Person selling such products and services includes price or any element
of price, customer terms or conditions of sale, seller-specific costs, volume of
sales, output (but not including the Joint Venture Company’s output), bid terms
of the foregoing type and such similar information as is specifically identified
electronically or in writing to the Joint Venture Company by Micron or a
Subsidiary of Micron, on the one hand, and NTC or a Subsidiary of NTC, on the
other hand, as competitively sensitive information.

     

    “Compliant JV Party” shall have
the meaning set forth in Section 13.1(a) of this Agreement.

     

    “Confidentiality Agreement”
shall have the meaning set forth in Section 15.13(a) of this
Agreement.

     

    “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 [***] 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.

     

    “COSL” shall have the meaning
set forth in Section 11.6 of this Agreement.

     

    “Cure Period” shall have the
meaning set forth in Section 12.5 of this Agreement.

     

    “Deadlock” shall have the
meaning set forth in Section 12.1 of this Agreement.

     

    “Defaulting JV Party” shall
have the meaning set forth in Section 12.4 of this Agreement.

     

    “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 any
[***].

     

    
      
        
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        NTC/MICRON
CONFIDENTIAL  

      

    

     

    “Dilutive Transaction” means a
transaction in which the Joint Venture Company issues Shares and a JV Party does
not purchase 100% of the Shares that such JV Party would be entitled to purchase
with respect to such transaction as a result of fully exercising its pre-emptive
right with respect to the issuance of the Shares; provided, however, that such
transaction shall not be a Dilutive Transaction if neither JV Party exercises
any of its pre-emptive rights with respect to such issuance of
Shares.

     

    “Divestiture Action” shall have
the meaning set forth in Section 2.4(c)(v) of this Agreement.

     

    “DRAM Design” means an Trench
DRAM Designs or Stack DRAM Design.

     

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

     

    “Employee Restriction Period”
means the period commencing on the date of this Agreement and ending on the date
that is two (2) years after the later of (i) the sale, exchange, transfer, or
disposal of all of the ordinary shares of the Joint Venture Company owned by one
JV Party and its Subsidiaries to the other JV Party, its Affiliates or to a
Third Party that was not in contravention of the Joint Venture Agreement and
(ii) the termination of the JDP Agreement.

     

    “Equity Interest” means a JV
Party’s percentage ownership of the Shares as determined by dividing the number
of Shares owned by such JV Party at the time of determination by the total
issued and outstanding Shares at the time of determination.

     

    “Event of Default” shall have
the meaning set forth in Section 12.4 of this Agreement.

     

    “Executive Vice President”
shall have the meaning set forth in Section 5.4(b) of this
Agreement.

     

    “Exercise Notice” shall have
the meaning set forth in Section 12.6(a) of this Agreement.

     

    “Fair Value” means (i) if the
Joint Venture Company is listed on the Taiwan Stock Exchange, [***] of the
Shares immediately prior to the date of the Exercise Notice or the Buyout
Notice, as applicable; or (ii) if the Joint Venture Company is not then listed
on the Taiwan Stock Exchange, the fair value immediately prior to the date of
the Exercise Notice or Buyout Notice, as applicable, as determined by
independent appraisers selected as follows: each JV Party shall appoint one
independent appraiser, which shall be an internationally recognized accounting,
valuation or investment banking firm, and these two independent appraisers shall
mutually select a third independent appraiser.  Each such appraiser
shall in good faith conduct its own independent appraisal to determine the fair
value of the Shares (ignoring any applicable minority discounts or effects of
illiquidity that may be associated with the Shares of the Joint Venture
Company), and [***] that are the closest in value shall be the Fair Value of the
Shares.

     

    [***]

     

    “Filing” shall have the meaning
set forth in Section 2.4 of this Agreement.

     

    “Filing Event” shall have the
meaning set forth in Section 2.4 of this Agreement.

     

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

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

    “Fiscal Year” shall have the
meaning set forth in Section 10.1 of this Agreement.

     

    “GAAP” means generally accepted
accounting principles, consistently applied 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.

     

    “ICDR” means the International
Centre for Dispute Resolution of the American Arbitration
Association.

     

    “Imaging Product” means any (i)
semiconductor device having a plurality of photo elements (e.g., photodiodes,
photogates, etc.) for converting impinging light into an electrical
representation of the information in the light, (ii) image processor or other
semiconductor device for balancing, correcting, manipulating or otherwise
processing such electrical representation of the information in the impinging
light, or (iii) combination of the devices described in clauses (i) and
(ii).

     

    “IMI/Qimonda Supply Agreement”
shall have the meaning set forth in Section 7.2(b)(iv) of this
Agreement.

     

    “Infineon” shall have the
meaning set forth in the Recitals of this Agreement.

     

    “Initiating JV Party” shall
have the meaning set forth in Section 7.3(b) of this Agreement.

     

    “JDP Agreement” means that
certain Joint Development Program Agreement between NTC and Micron, dated as of
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 to the JDP Agreement.

     

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

     

    “Joint Venture Documents” means
the documents identified on Schedule A to this Agreement.

     

    “Joint Venture Reportable
Events” shall have the meaning set forth in Section 10.3 of this
Agreement.

     

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

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

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

     

    “Manufacturing Committee” shall
have the meaning set forth in Section 7.2(b)(i) of this Agreement.

     

    “Manufacturing Plan” shall have
the meaning set forth in Section 7.2(c) of this Agreement.

     

    “Maximum Output Percentage
Adjustment” means the [***].

     

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

     

    “Micron Assigned Employee
Agreement” means that certain Micron Assigned Employee Agreement between
Micron and the Joint Venture Company, dated as of the date of this
Agreement.

     

    [***]

     

    “Minimally Restored Position”
has the meaning set forth in Section 11.5(c) of this Agreement.

     

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

     

    “MTT” shall mean Micron
Technology Asia Pacific, Inc., an Idaho corporation.

     

    “NAND Flash Memory Product”
means a non-volatile semiconductor memory device containing memory cells that
are electrically programmable and electrically erasable whereby the memory cells
consist of one or more transistors that have a floating gate, charge trapping
regions or any other functionally equivalent structure utilizing one or more
different charge levels (including binary or multi-level cell structures), with
or without any on-chip control, I/O and other support circuitry, in wafer, die
or packaged form.

     

    “Non-compliant JV Party” shall
have the meaning set forth in Section 13.1(a) of this Agreement.

     

    “Non-Defaulting JV Party” shall
have the meaning set forth in Section 12.5 of this Agreement.

     

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

     

    “Notice of Default” shall have
the meaning set forth in Section 12.5 of this Agreement.

     

    “NT$” means the lawful currency
of the ROC.

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

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

     

    “NTC Assigned Employee
Agreement” means that certain NTC Assigned Employee Agreement between NTC
and the Joint Venture Company, dated as of the date of this
Agreement.

     

    [***]

     

    “Offered Shares” means the
Shares as defined in Section 9.3(a) of this Agreement.

     

    “Option Period” shall have the
meaning set forth in Section 9.3(b) of this Agreement.

     

    “Other JV Party” shall have the
meaning set forth in Section 7.3(b) of this Agreement.

     

    “Output Percentage” means
[***].

     

    “Output Percentage Adjustment”
means, [***].

     

    “Permitted Transfer” shall have
the meaning set forth in Section 9.2 of this Agreement.

     

    “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.

     

    “Plastics” shall have the
meaning set forth in Section 11.5(b) of this Agreement.

     

    “President” shall have the
meaning set forth in Section 5.4(a) of this Agreement.

     

    “Process Node” means
[***].

     

    “Prohibited Employees” shall
have the meaning set forth in Section 8.4(a) of this
Agreement.

     

    “Proposing JV Party” shall have
the meaning set forth in Section 12.3(a) of this Agreement.

     

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

     

    “Qimonda B.V.” shall have the
meaning set forth in the Recitals to this Agreement.

     

    “Qimonda/MNL Share Purchase
Agreement” shall have the meaning set forth in the Recitals to this
Agreement.

     

    “Restricted Employees” shall
have the meaning set forth in Section 8.4(a) of this
Agreement.

     

    “Receiving Party” shall have
the meaning set forth in Section 9.3(a) of this Agreement.

     

    “Receiving JV Party” shall have
the meaning set forth in Section 12.3(a) of this Agreement.

     

    “Regulatory Law” shall have the
meaning set forth in Section 2.4 of this Agreement.

     

    
      
        
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CONFIDENTIAL  

      

    

     

    “Restored Position” shall have
the meaning set forth in Section 11.5(b) of this Agreement.

     

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

     

    “ROC Company Law” means the
Company Law of the ROC, promulgated on December 26, 1929, and as last amended on
February 3, 2006.

     

    “ROC Securities Exchange Law”
means the Securities and Exchange Law of the ROC, promulgated on April 30, 1968,
and as last amended on May 30, 2006.

     

    “Sale Offer” shall have the
meaning set forth in Section 9.3(a) of this Agreement.

     

    “Share Decrease
Percentage”  means [***].

     

    “Share Disposition” shall have
the meaning set forth in Section 7.3(b) of this Agreement.

     

    “Shareholders’ Meeting” or
“Shareholders’ Meetings”
shall have the meaning set forth in Section 6.2 of this Agreement.

     

    “Shares” means the ordinary
shares of the Joint Venture Company, each having a par value of
[***].

     

    “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.

     

    “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 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).

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

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

     

    “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.

     

    “Supply Agreement” means that
certain Supply Agreement among NTC, Micron and the Joint Venture Company, dated
as of the date of this Agreement.

     

    “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 as of the date of this Agreement.

     

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

     

    “Transfer” shall have the
meaning set forth in Section 9.1(a) of this Agreement.

     

    “Transfer Notice” shall have
the meaning set forth in Section 9.3(a) of this Agreement.

     

    “Transfer Period” shall have
the meaning set forth in Section 9.3(d) of this Agreement.

     

    “Transferor” shall have the
meaning set forth in Section 9.3(a) of this Agreement.

     

    “Transition Period” shall have
the meaning set forth in Section 2.1(b) of this Agreement.

     

    “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” means a dynamic
random access memory cell that functions employing a capacitor arrayed
predominantly below the surface of the semiconductor substrate.

     

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

     

    [***]

     

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

     

    
      
        
          
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CONFIDENTIAL  

        

      

    

    “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.

     

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

     

    “TTLA” shall have the meaning
set forth in Section 11.5(a) of this Agreement.

     

    [***]
shall have the meaning set forth in Section 11.5(a) of this
Agreement.

     

    “U.S. GAAP” means GAAP used in
the United States, as in effect from time to time.

     

    “Vice-Chairman” means the Vice
Chairman of the Board of Directors.

     

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

     

    “Wholly-Owned Subsidiary” of a
Person means a Subsidiary, all of the shares of stock or other ownership
interests of which are owned, directly or indirectly through one or more
intermediaries, by such Person, other than a nominal number of shares or a
nominal amount of other ownership interests issued in order to comply with
requirements that such shares or interests be held by one or more other Persons,
including requirements for directors’ qualifying shares or interests,
requirements to have or maintain two or more stockholders or equity owners or
other similar requirements.

     

    Section
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 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.  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” mean calendar
days.

     

    (b) No
provision of this Agreement will be interpreted in favor of, or against, either
JV Party by reason of the extent to which (i) such JV 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.

     

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

     

    ARTICLE
2


     

    THE
JOINT VENTURE COMPANY

     

    Section
2.1 General
Matters.

     

    (a) Name.  The
JV Parties shall use best efforts to cause the Joint Venture Company to be named
Inotera Memories Inc.
[Translation from Chinese] in Chinese and “Inotera Memories, Inc.” in
English.  The JV Parties acknowledge and agree to use best efforts to
cause the Joint Venture Company to be continued as a company-limited-by-shares
under the laws of the ROC.

     

    (b) Purpose.  During
the period commencing on the date hereof and ending on the date that the Joint
Venture Company’s fabs are fully converted (as determined based on the delivery
of the final Trench DRAM Product manufactured by the Joint Venture Company) from
the manufacture of Trench DRAM Products to the manufacture of Stack DRAM
Products (the “Transition
Period”), the JV Parties shall use best efforts to cause the purpose of
the Joint Venture Company to be the manufacture and sale of certain Trench DRAM
Products exclusively for and to Micron, NTC and Qimonda and Stack DRAM Products
exclusively for and to Micron and NTC.  After the Transition Period,
the JV Parties shall use best efforts to cause the purpose of the Joint Venture
Company to be the manufacture and sale of certain Stack DRAM Products
exclusively for and to Micron and NTC; and the entry of, or engagement in, any
such lawful transactions or activities in furtherance of the foregoing
purpose.

     

    (c) Business
Scope.  Subject to amendment by the JV Parties from time to
time and any necessary approval from the relevant Governmental Entities, the JV
Parties shall use best efforts to cause the registered business scope of the
Joint Venture Company to be as set forth in its business license, other
incorporation documents and the Articles of Incorporation, all as mutually
agreed upon by the JV Parties.

     

    (d) Principal Place of
Business.  The JV Parties shall use best efforts to cause the
registered address and the principal place of business of the Joint Venture
Company to be at Hwa-Ya Technology Park, Taoyuan, Taiwan, ROC, unless the Board
of Directors changes the registered address or the principal place of business
of the Joint Venture Company to such other place as the Board of Directors may
from time to time determine.  The Joint Venture Company may maintain
offices and places of business at such other place or places within or outside
of Taiwan as the Board of Directors may deem to be advisable.

     

    Section
2.2 Articles of
Incorporation.  In case of any conflict or inconsistency
between the provisions of the Articles of Incorporation and the terms of this
Agreement, the terms of this Agreement shall prevail as between the JV Parties
to the extent permitted under the Applicable Laws.  The JV Parties
shall exercise all rights available to them to give effect to the terms of this
Agreement to the extent permissible under the Applicable Laws and to take such
reasonable steps to amend the Articles of Incorporation as soon as practicable
to the extent necessary to remove any such conflict or
inconsistency.

     

    
      
        
          
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    Section
2.3 Maintenance of Joint Venture
Company.  The JV Parties shall use best efforts to cause the
Board of Directors, or officers of the Joint Venture Company, to make or cause
to be made, from time to time, filings and applications to the relevant
Governmental Entities in the ROC to amend any registration, license or permit of
the Joint Venture Company as the Board of Directors reasonably considers
necessary or appropriate under the Applicable Laws so as to ensure (a) the
continuation of the Joint Venture Company as a company-limited-by-shares under
the laws of the ROC and (b) compliance with the terms of this
Agreement.

     

    Section
2.4 Governmental
Approvals.  In the event that either JV Party takes or desires
to take any action contemplated by this Agreement that could reasonably be
expected to result in an event or transaction, including the purchase by either
JV Party of Shares pursuant to Section 9.3, 12.3, 12.6 or 13.1, which event or
transaction, as to each of the foregoing, would require either JV Party to make
a filing, notification or any other required or requested submission under
antitrust, competition, foreign investment, company or fair trade law (any such
event or transaction, a “Filing
Event” and any such filing, notification, or any such other required or
requested submission, a “Filing” and any such law, a
“Regulatory Law”),
then:

     

    (a) the JV
Party taking such action, in addition to complying with any other applicable
notice provisions under this Agreement, shall promptly notify the other JV Party
of such Filing Event, which notification shall include an indication that
Filings under the Regulatory Law will be required;

     

    (b) notwithstanding
any provision to the contrary in this Agreement, a Filing Event may not occur or
close until after any applicable waiting period (including any extension
thereof) under the Regulatory Law, as applicable to such Filing Event, shall
have expired or been terminated, and all approvals under regulatory Filings in
any jurisdiction that shall be necessary for such Filing Event to occur or close
shall have been obtained, and any applicable deadline for the occurrence or
closing of such Filing Event contained in this Agreement shall be delayed, so
long as both JV Parties are proceeding diligently in accordance with this
Section 2.4 to seek any such expiration, termination or approval, and so long as
there are no other outstanding conditions preventing the occurrence or closing
of the Filing Event;

     

    (c) the JV
Parties shall, and shall cause any of their relevant Affiliates to:

     

    (i) as
promptly as practicable, make their respective Filings under the applicable
Regulatory Law;

     

    (ii) promptly
respond to any requests for additional information from the applicable
Governmental Entity;

     

    (iii) subject
to applicable Regulatory Laws, use commercially reasonable efforts to cooperate
with each other in the preparation of, and coordinate, such Filings (including
the exchange of drafts between each party’s outside counsel) so as to reduce the
length of any review periods;

     

    
      
        
          
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    (iv) subject
to applicable Regulatory Laws, cooperate and use their respective commercially
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary under Regulatory Law in connection with
such Filing Event, including using commercially reasonable efforts to provide
information, obtain necessary exemptions, rulings, consents, clearances,
authorizations, approvals and waivers, and effect necessary registrations and
filings;

     

    (v) subject
to applicable Regulatory Laws, use their commercially reasonable efforts to (a)
take actions that are necessary to prevent the applicable Governmental Entity
from filing an action with a court or Governmental Entity that, if the
Governmental Entity prevailed, would restrict, enjoin, prohibit or otherwise
prevent or materially delay the consummation of the Filing Event, including an
action by any such Governmental Entity seeking a requirement to (i) sell,
license or otherwise dispose of, or hold separate and agree to sell or otherwise
dispose of, assets, categories of assets or businesses of either JV Party, the
Joint Venture Company, or any of their respective Subsidiaries; (ii) terminate
existing relationships and contractual rights and obligations of either JV
Party, the Joint Venture Company or any of their respective Subsidiaries; (iii)
terminate any relevant joint venture or other arrangement; or (iv) effectuate
any other change or restructuring of either JV Party or the Joint Venture
Company (as to each of the foregoing, a “Divestiture Action”), and (b)
contest and resist any action, including any legislative, administrative or
judicial action, and to have vacated, lifted, reversed or overturned any order
that restricts, enjoins, prohibits or otherwise prevents or materially delays
the occurrence or closing of such Filing Event; and

     

    (vi) subject
to applicable Regulatory Laws, prior to the making or submission of any
analysis, appearance, presentation, memorandum, brief, argument, opinion or
proposal by or on behalf of either JV Party in connection with proceedings under
or relating to the applicable Regulatory Law, consult and cooperate with one
another, and consider in good faith the views of one another, in connection with
any such analyses, appearances, presentations, memoranda, briefs, arguments,
opinions and proposals, and provide one another with copies of all material
communications from and filings with, any Governmental Entities in connection
with any Filing Event;

     

    (d) notwithstanding
anything to the contrary in this Section 2.4, nothing in this Section 2.4 shall
require either JV Party or its respective Affiliates, or the Joint Venture
Company, to take any Divestiture Action; and

     

    (e) if the
Filing Event is prevented from occurring or closing as a result of any
applicable Regulatory Laws, after exhausting all efforts required under this
Section 2.4 to obtain the necessary approval of any applicable Governmental
Entity, then the JV Parties shall negotiate in good faith to agree upon an
alternative event or transaction that would be permissible under applicable
Regulatory Laws, and would approximate, as closely as possible, the intent and
contemplated effect of the original Filing Event.

     

    
      
        
          
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    ARTICLE
3


     

    CAPITALIZATION;
CONTRIBUTION OF CAPITAL

     

    Section
3.1 Authorized
Capital.  In accordance with Section 6.5, the JV Parties shall
use best efforts to cause the authorized capital of the Joint Venture Company to
be amended from time to time, as may be necessary or desirable to consummate the
transactions contemplated herein and in accordance with the Applicable Laws of
the ROC.

     

    Section
3.2 Capital
Contributions.

     

    (a) No
Obligation.  Unless otherwise agreed by the JV Parties in
writing, neither JV Party shall be obligated to make any contribution of capital
to the Joint Venture Company.

     

    (b) Future Cash
Requirements.  Until the second anniversary of the Closing, the
JV Parties shall use commercially reasonable efforts consistent with their
fiduciary duties to the Joint Venture Company, to cause the Joint Venture
Company to fund future cash requirements through cash flow generated by
operations of the Joint Venture Company or external debt financing rather than
the issuance of Shares or other equity or equity-linked securities of the Joint
Venture Company.

     

    Section
3.3 Unilateral Purchase of
Shares.  Except as otherwise provided herein, MNL shall not,
and shall not permit Micron or its Subsidiaries to, and NTC shall not, and shall
not permit its Subsidiaries to, directly or indirectly acquire Shares or any
other equity-linked securities of the Joint Venture Company from any Person
other than the Joint Venture Company, without the prior written consent of the
other JV Party.  MNL and NTC shall use their respective best efforts
to prevent the Joint Venture Company from issuing Shares or any other
equity-linked security of the Joint Venture Company, directly or indirectly, to
an Affiliate of MNL or NTC without the prior written consent of both JV
Parties.  If an Affiliate of MNL or of NTC acquires Shares or any
other equity-linked security of the Joint Venture Company, whether from the
Joint Venture Company or otherwise (except as a result of a Permitted Transfer
as contemplated by Section 9.2), the JV Parties shall, notwithstanding anything
to the contrary in Sections 5.1(b) or (c), use their respective commercially
reasonable efforts to cause the directors on the Board of Directors to be
allocated between them, consistent with the principles set forth in Sections
5.1(b) and (c), as if the Shares or equity-linked securities owned by such
Affiliates were owned one half by MNL and one half by NTC (and treating, for
purposes of this sentence, any director whose election was controlled by an
Affiliate of a JV Party as being a director designated by such JV
Party).  Notwithstanding the foregoing, if the JV Parties fail to
achieve the foregoing result after using such commercially reasonable efforts,
no JV Party shall be in breach of this section or have any liability for such
failure.

     

    
      
        
          
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    ARTICLE
4


     

    BANK
LOANS

     

    If the
Board of Directors shall at any time determine that there is a need for the
Joint Venture Company to obtain external financing, the JV Parties will assist
the Joint Venture Company to seek and obtain commercial loans or other financing
arrangements from banks and other financial institutions on competitive market
terms and otherwise as the Joint Venture Company may reasonably
require.  None of the JV Parties (or any of their representatives)
shall be obligated under this Agreement or otherwise to provide any guarantee or
security for any such loans in favor of the Joint Venture Company, unless
specifically agreed in writing by such JV Party (or its duly authorized
representative).

     

    ARTICLE
5


     

    MANAGEMENT
OF THE JOINT VENTURE COMPANY

     

    Section
5.1 Board of
Directors.

     

    (a) Power and
Authority.  The JV Parties shall use best efforts to cause the
Board of Directors to be responsible for the overall management of the business,
affairs and operations of the Joint Venture Company.  The JV Parties
shall use best efforts to cause the Board of Directors to have all the rights
and powers given to it under the Articles of Incorporation and the Applicable
Laws of the ROC, including without limitation, the ROC Company Law.

     

    (b) Number of
Directors.  The JV Parties shall use best efforts to cause the
Articles of Incorporation to provide for the Joint Venture Company to have a
Board of Directors consisting of twelve
(12) directors (provided that the JV Parties shall use best efforts to
reduce such number for each director withdrawn in accordance with Section
5.1(b)(iv)).  The JV Parties shall use best efforts to cause the
directors to be designated and elected as follows (subject, and giving effect,
to any prior withdraw of one or more directors in accordance with Section
5.1(b)(iv)):

     

    [***]

     

    
      
        
          
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    (c) Agreement to
Vote.

     

    (i) The JV
Parties agree to vote, in any meeting of the shareholders where directors are
elected, in a coordinated manner, to elect all of the Persons designated by the
JV Parties in accordance with Section 5.1(b) above.  As soon as
practicable after the Closing, the JV Parties shall use their best efforts to
cause a Shareholders’ Meeting in order to elect the Persons designated by MNL
pursuant to Sections 5.1(b)(i) and (iii), as directors.  From the
Closing until the date that the Persons designated by MNL pursuant to Sections
5.1(b)(i) and (iii) are first elected as directors of the Joint Venture Company
following the Closing, NTC shall not take or omit to take, and shall use best
efforts to prohibit the Joint Venture Company from taking or omitting to take,
any action or inaction, as applicable, that would require the approval of the
Board of Directors, unless NTC first obtains the prior written consent of MNL
for the Joint Venture Company to take or omit to take such action.

     

    (ii) If for
any reason the JV Parties shall be unable to elect twelve (12) Persons
(or such lesser number of Persons as is applicable after taking into account the
application of Section 5.1(b)(iv)) to be their representatives to serve as
directors pursuant to Section 5.1(b), the JV Parties shall vote, in a
coordinated manner, to elect as many of such Persons as possible, consistent
with the principles set forth in Section 5.1.

     

    (d) Removal and
Replacement.  Any of the representatives serving as directors
on the Board of Directors may be removed or replaced for any reason by the JV
Party that designated him or her.  If any such representative serving
on the Board of Directors is so removed or replaced or otherwise ceases to serve
as a director on the Board of Directors, the JV Party that designated such
representative shall be entitled to designate another Person to fill such
vacancy, and the JV Parties shall use best efforts to have such replacement
elected as a director.

     

    (e) Compensation.  The
directors, except for the independent directors, if any, shall not receive any
compensation for serving as such, although the Board of Directors may authorize
the reimbursement of expenses reasonably incurred in connection with the
performance of their duties.

     

    (f) Meetings of the Board of
Directors; Notice.  The JV Parties shall use best efforts to
cause or affect the following:

     

    (i) The Board
of Directors shall meet from time to time but at least once per Fiscal Quarter
in Taiwan (or such other place as the Board of Directors may decide) by not less
than fourteen (14) days notice in writing.  Emergency meetings of the
Board of Directors may be convened from time to time by the Chairman, or the
Vice-Chairman pursuant to Section 5.2(c), by not less than two (2) Business Days
notice in writing.

     

    (ii) A notice
of a meeting of the Board of Directors shall contain the time, date, location
and agenda for such meeting.  The presence of any director at a
meeting (including attendance by means of video conference) shall constitute a
waiver of notice of the meeting with respect to such director.

     

    (iii) The Board
of Directors shall cause written minutes to be prepared of all actions,
determinations and resolutions taken by the Board of Directors and a copy
thereof sent to each director and supervisor of the Joint Venture Company within
twenty (20) days of each meeting.

     

    
      
        
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    (g) Proxy and Video
Conference.  The JV Parties shall use best efforts to cause the
Joint Venture Company to allow that:  (i) in any case where a director
cannot attend a meeting of the Board of Directors, such director may appoint
another director as his or her proxy in accordance with the ROC Company Law;
(ii) all or any of the directors may participate in a meeting of the Board of
Directors by means of a video conference which allows all persons participating
in the meeting to see and hear each other; and (iii) a director so participating
shall be deemed to be present in person at the meeting and shall be entitled to
vote or be counted in a quorum accordingly.

     

    (h) Quorum.  The
JV Parties shall use best efforts to cause the presence of at least [***] of the
directors in office, in person, by proxy or by video conference, to be necessary
and sufficient to constitute a quorum for the purpose of taking action by the
directors at any meeting of the Board of Directors.  No action taken
by the Board of Directors at any meeting shall be valid unless the requisite
quorum is present.

     

    (i) Voting.  Unless
a higher majority of votes is specifically required under the ROC Company Law or
the Articles of Incorporation, the JV Parties shall use best efforts to cause
all actions, determinations or resolutions of the Board of Directors to require
the affirmative vote of a [***] majority of the directors present at any meeting
of the Board of Directors at which a quorum is present.

     

    (j) Matters Requiring the
Approval of the Board of Directors.  The JV Parties shall use
best efforts to cause each of the following actions to require the approval of
the Board of Directors by resolution adopted in accordance with Section 5.1(i)
above (which approval may be obtained through the adoption of a Business Plan by
the Board of Directors in accordance with Section 7.5, provided, that the
relevant Business Plan sets forth such action in reasonable
detail):

     

    (i) appointing
or removing the Chairman and, once the position has been created, the Vice
Chairman of the Board of Directors and appointing or removing the President and
Executive Vice President of the Joint Venture Company nominated by the Chairman,
and appointing  or removing any Vice Presidents of the Joint Venture
Company;

     

    (ii) approving
or amending any Business Plan, including the Annual Budget, any quarterly
budgets, the production plan, the profit and loss plan, the capital investment
plan and the financial plan;

     

    (iii) issuing
new Shares within the authorized capital of the Joint Venture Company or issuing
equity-linked securities;

     

    (iv) determining
long-term policies of the Joint Venture Company, including substantial change in
the organizational structure and business operation of the Joint Venture
Company;

     

    
      
        
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    (v) determining
employment terms, including compensation packages of the President, the
Executive Vice President, Vice Presidents and assistant Vice Presidents of the
Joint Venture Company;

     

    (vi) establishing
Subsidiaries, opening and closing branch offices, acquiring or selling all or
part of the assets of another entity or business, establishing new business
sites and closing of existing ones;

     

    (vii) setting
the limits of authorities of various employment positions and approving the
internal chart of authorities;

     

    (viii) making
capital expenditures (or a group of related capital expenditures) in an amount
equal to or greater than [***] individually or [***] in the aggregate in any one
Fiscal Quarter;

     

    (ix) borrowing
or lending to, or guaranteeing the obligations of, any Third Party;

     

    (x) pledging
or hypothecating, or creating any encumbrance or other security interest in, the
Joint Venture Company’s assets;

     

    (xi) issuing
any debt securities of the Joint Venture Company;

     

    (xii) entering
into an agreement for the purchase, transfer, sale or any other disposal of
assets valued at an amount greater than [***] other than transfers, sales or
dispositions of assets in the ordinary course of business of the Joint Venture
Company;

     

    (xiii) entering
into, amending or terminating any material agreement relating to intellectual
property rights or know how;

     

    (xiv) entering
into, amending or terminating any agreement or other arrangement with, or for
the benefit of, any director of the Joint Venture Company;

     

    (xv) establishing,
modifying or eliminating any significant accounting or tax policy, procedure or
principle;

     

    (xvi) creating
new product lines or discontinuing existing product lines;

     

    (xvii) commencing
any litigation as plaintiff or settling any litigation matters;

     

    (xviii) preparing
and submitting proposals for surplus earning distributions and loss offset to
the shareholders of the Joint Venture Company for approval;

     

    (xix) submitting
any matters to the shareholders of the Joint Venture Company for consideration
or approval as may be required by the law;

     

    
      
        
          
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    (xx) entering
into, modifying, extending or terminating any one-time service or purchase of
goods agreement in the amount of more than [***] or any long-term service or
purchase agreement for goods between the Joint Venture Company and a shareholder
holding more than 10% of the issued share capital of the Joint Venture Company,
or an Affiliate of such shareholder;

     

    (xxi) redeeming
or repurchasing Shares;

     

    (xxii) deciding
other important matters related to the Joint Venture Company that arise other
than in the ordinary course of business.

     

    Section
5.2 Chairman and
Vice-Chairman.

     

    (a) Chairman.  The
JV Parties shall use best efforts to cause the Chairman of the Board of
Directors to be a director designated by NTC, subject to the consent of MNL,
which consent shall not be unreasonably withheld.  The JV Parties
shall use best efforts to cause the Chairman to have such duties and
responsibilities as may be assigned to him or her by the Board of
Directors.  The JV Parties shall use best efforts to cause the
Chairman to not have a second or casting vote.

     

    (b) Vice-Chairman.  The
JV Parties shall use best efforts to cause the Articles of Incorporation to be
amended to provide that there shall be a Vice-Chairman of the Board of Directors
who shall be a director designated by MNL, subject to the consent of NTC, which
consent shall not be unreasonably withheld.  The JV Parties shall use
best efforts to cause the Vice-Chairman to not have a second or casting
vote.

     

    (c) Convening of the Board of
Directors Meeting.  The JV Parties shall use best efforts to
cause meetings of the Board of Directors to be convened by the
Chairman.  The JV Parties shall use best efforts to cause each
director of the Joint Venture Company to have the right to request the Chairman
to convene a meeting of the Board of Directors indicating the proposed
agenda.  If the Chairman does not, within one week (or within three
(3) days for convening an emergency meeting of the Board of Directors), comply
with such director’s request, the JV Parties shall use best efforts to cause the
Vice-Chairman to have the right to convene the meeting of the Board of Directors
as requested by such director.

     

    Section
5.3 Supervisors.

     

    (a) Number of
Supervisors.  The JV Parties shall use best efforts to cause
the Articles of Incorporation to provide for the Joint Venture Company to
have four (4) supervisors.  The JV Parties agree to vote, in
any meeting of the shareholders where supervisors are elected, in a coordinated
manner, to elect as supervisors two (2) Persons designated by MTT and
two (2)Persons designated by Pei Jen Co., Ltd.  From and after the
Closing, MNL shall cause MTT, and NTC shall cause Pei Jen Co., Ltd., to hold,
respectively, a number of Shares that is equal to or greater than one-half (1/2)
of the minimum number of Shares required to be held by all supervisors of the
Joint Venture Company in accordance with Applicable Laws.

     

    
      
        
          
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    (b) Agreement to
Vote.  The JV Parties agree to vote, in any meeting of the
shareholders where supervisors are elected, in a coordinated manner, to elect
all of the Persons designated by the JV Parties in accordance with Section
5.3(a) above.  As soon as practicable after the Closing, the JV
Parties shall elect the two (2) Persons designated by MNL, and the two
(2) Persons designated by NTC, to serve as supervisors of the Joint Venture
Company.

     

    (c) Removal and
Replacement.  The JV Parties shall use best efforts to provide
that any of the supervisors may be removed or replaced for any reason by the JV
Party that designated him or her.  If any supervisor is so removed or
replaced or otherwise ceases to serve as a supervisor, the JV Parties shall use
best efforts to cause the JV Party that designated such supervisor to be
entitled to designate another Person to fill such vacancy.

     

    (d) Compensation.  The
JV Parties shall use best efforts to cause the supervisors, except for the
independent supervisors, if any, to not receive any compensation for serving as
such, although the Board of Directors may authorize the reimbursement of
expenses reasonably incurred in connection with the performance of their
duties.

     

    (e) Restriction on
Employment.  The JV Parties shall use best efforts to cause the
supervisors to not be concurrently employed by the Joint Venture Company in any
other capacity.

     

    Section
5.4 President and Executive Vice
President.

     

    (a) President.  The
JV Parties shall use best efforts to cause the Articles of Incorporation to
provide for the Joint Venture Company to have a president (the “President”), who shall report
to the Board of Directors and serve at its pleasure.  The President
shall have such daily operation and management responsibilities of the Joint
Venture Company as may be assigned or delegated by the Board of Directors from
time to time.  [***]

     

    (b) Executive Vice
President.  The JV Parties shall use best efforts to cause the
Articles of Incorporation to provide for the Joint Venture Company to have an
executive vice president (the “Executive Vice President”),
who shall also report to the Board of Directors and serve at its
pleasure.  The Executive Vice President shall work with and assist the
President in executing the daily operation and management responsibilities of
the Joint Venture Company and shall have such other responsibilities as may be
assigned or delegated by the Board of Directors from time to
time.  [***]

     

    (c) Termination and
Vacancy.  The JV Parties shall use best efforts to cause the
Board of Directors to have the exclusive right to terminate the services of the
President and the Executive Vice President with or without cause.  In
the event of any such termination or in the event of any vacancy as a result of
death, resignation, retirement or any other reason, the JV Parties shall use
best efforts to cause the JV Party that nominated the President or the Executive
Vice President, as the case may be, to be entitled to nominate another Person,
subject to the same consent requirement set forth in Sections 5.4(a) or (b)
above, as the case may be, to fill such vacancy for appointment by the Board of
Directors.

     

    (d) Authority.  With
respect to the execution of the daily operation and management of the Joint
Venture Company, the JV Parties shall use best efforts to cause the President
and the Executive Vice President to have the authority to, among other
things:

     

    
      
        
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    (i) propose
the annual budget and business plan of the Joint Venture Company;

     

    (ii) approve
capital expenditures of the Joint Venture Company of [***] or less in a single
event, or an aggregate of [***] or less in any Fiscal Quarter;

     

    (iii) approve
borrowing and lending of the Joint Venture Company and dispositions of assets of
the Joint Venture Company, in each case less than [***]; and

     

    (iv) execute
annual budgets of the Joint Venture Company approved by the Board of
Directors.

     

    (e) Work as a
Team.  The President and the Executive Vice President shall
work as a team in executing their duties and responsibilities.

     

    Section
5.5 Other
Officers.  The JV Parties shall use best efforts to allow the
President and the Executive Vice President to appoint, subject to the approval
of the Board of Directors, and be assisted by such other officers of the Joint
Venture Company as the President and the Executive Vice President may consider
necessary or desirable from time to time.  Such other officers shall
perform such duties and have such powers specifically delegated to them by the
Board of Directors from time to time.  The JV Parties shall use best
efforts to cause the Board of Directors to determine, from time to time, the
compensation, including any incentive compensation, for which such officers may
be offered.  The JV Parties shall use best efforts to allow the Board
of Directors to, from time to time, also appoint, and assign titles to, other
officers of the Joint Venture Company, and delegate to such officers such
authorities and duties as the Board of Directors may deem
advisable.

     

    ARTICLE
6

     

    SHAREHOLDERS’
MEETINGS

     

    Section
6.1 Annual
Meeting.  The JV Parties shall use best efforts to cause the
annual meetings of the shareholders of the Joint Venture Company to be convened
at least once annually by not less than thirty (30) days prior notice in writing
accompanied by an agenda specifying the business to be transacted.

     

    Section
6.2 Special
Meeting.  The JV Parties shall use best efforts to cause
special meetings of the shareholders of the Joint Venture Company to be held
from time to time and to be convened by the Board of Directors by not less than
fifteen (15) days prior notice in writing accompanied by an agenda specifying
the business to be transacted.  (Any annual meetings of the
shareholders and any special meetings of the shareholders shall individually be
referred to as a “Shareholders’
Meeting” and collectively be referred to as “Shareholders’
Meetings.”)

     

    Section
6.3 Quorum.  Unless
a higher quorum is required under the Applicable Laws, the JV Parties shall use
best efforts to cause the presence of the shareholders of the Joint Venture
Company representing [***] or more of the issued and outstanding Shares of the
Joint Venture Company to be necessary and sufficient to constitute a quorum for
the purpose of taking action at any Shareholders’ Meeting of the Joint Venture
Company.  The JV Parties shall use best efforts to provide that no
action taken at a Shareholders’ Meeting shall be valid unless the requisite
quorum is present.

     

    Section
6.4 Voting.  The
JV Parties shall use best efforts to cause each Share to entitle its holder to
one vote.  Unless a higher vote is required under the Applicable Laws,
the JV Parties shall use best efforts to cause all actions, determinations or
resolutions of the shareholders at any Shareholders’ Meeting of the Joint
Venture Company to require the affirmative vote of [***] or more of the votes
represented in person or by proxy at the Shareholders’ Meeting at which a quorum
is present.

     

    
      
        
          
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    Section
6.5 Matters Requiring the
Approval of the Shareholders.  The JV Parties shall use best
efforts to cause each of the following actions to require the approval of the
shareholders of the Joint Venture Company by resolution adopted in accordance
with Section 6.4 above:

     

    (a) amending,
restating or revoking the Articles of Incorporation;

     

    (b) electing
or removing the directors or the supervisors;

     

    (c) determining
the compensation of any director or supervisor;

     

    (d) approving
the balance sheet and other financial statements received from the Board of
Directors;

     

    (e) appointing
and removing the auditors of the Joint Venture Company;

     

    (f) approval
of surplus earning distribution or loss offset proposals;

     

    (g) any
merger, consolidation or other business combination to which the Joint Venture
Company is a party, or any other transaction to which the Joint Venture Company
is a party (other than where the Joint Venture Company is merged or combined
with or consolidated into a Wholly-Owned Subsidiary of the Joint Venture
Company), resulting in (i) a change of control of the Joint Venture Company,
other than a change of control that may occur pursuant to Section 9.3, 12.3,
12.6 or 13.1 or (ii) the sale of all or substantially all assets of the Joint
Venture Company;

     

    (h) voluntary
submission by the Joint Venture Company to receivership, bankruptcy or any
similar status;

     

    (i) liquidation
or dissolution of the Joint Venture Company; and

     

    (j) other
actions reserved to the determination of the shareholders of the Joint Venture
Company by the ROC Company Law.

     

    ARTICLE
7

     

    OPERATIONS

     

    Section
7.1 Manufacturing Facility; Fab
Equipment.

     

    
      
        
          
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    (a) Fab
Equipment.  Subject to the mutual agreement of the JV Parties,
the Joint Venture Company may purchase, at fair market value, NTC’s idle
equipment that is suitable for use in connection with the manufacturing of Stack
DRAM Products.

     

    (b) Upgrade and
Enhancements.  [***]

     

    Section
7.2 Manufacturing
Operations.

     

    (a) Front-End Manufacturing
Operations.  The JV Parties shall use best efforts to cause the
Joint Venture Company to operate, at all times, within the Boundary
Conditions.

     

    (b) Manufacturing
Committee.

     

    (i) The JV
Parties shall jointly establish a manufacturing committee (the “Manufacturing Committee”),
[***].  The members of the Manufacturing Committee shall serve at the
pleasure of the JV Party appointing them and may be removed from the
Manufacturing Committee and replaced by such JV Party at any time with or
without cause.

     

    (ii) NTC’s
members of the Manufacturing Committee shall be employees of NTC, and MNL’s
members of the Manufacturing Committee shall be employees of Micron, in each
case who are responsible for product loading and planning decisions and who can
coordinate the loading of product at the Joint Venture Company
level.

     

    (iii) The JV
Parties shall use best efforts to cause the Manufacturing Committee to be
responsible for [***].  In reaching such decisions, the Manufacturing
Committee may take advice and input from such sources as it deems
appropriate.

     

    (iv) In the
event that the members of the Manufacturing Committee cannot agree on product
loading decisions, then the Manufacturing Committee will permit, with respect to
each Process Node, [***].

     

    (v) The
allocation of Trench DRAM Manufacturing Capacity shall be based on [***] (“Baseline Flow”).  On
a quarterly basis, or as otherwise determined by the Manufacturing Committee,
the Manufacturing Committee shall determine the Baseline Flow.  If,
during any quarter, the Manufacturing Committee cannot agree on a Baseline Flow,
[***].

     

    (vi) Requests
of Micron and NTC for products or product mixes different from the pre-planned
Baseline Flow with respect to a fab shall be honored, except to the extent
honoring such request would lead to wafer starts for the non-Baseline Flow
products at such fab resulting in Micron or NTC receiving more than the Trench
DRAM Manufacturing Capacity and or Stack DRAM Manufacturing Capacity allocated
to such Person under the current Baseline Flow for such fab.  To the
extent that both Micron and NTC request changes in products or product mixes at
a given fab that result in [***], the Manufacturing Committee shall re-determine
the allocation of Trench DRAM Manufacturing Capacity and Stack DRAM
Manufacturing Capacity based on [***], which shall then be the basis for its
loading plans with respect to such fab.

     

    
      
        
          
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    (vii) The JV
Parties shall use best efforts to cause the Joint Venture Company to ensure that
Trench DRAM Manufacturing Capacity and Stack DRAM Manufacturing Capacity at each
fab is allocated as provided for in this Section 7.2.

     

    (viii) The
Manufacturing Committee shall meet at such times as may be helpful or necessary
for the efficient operation of the Company but in no event less than
monthly.  The Manufacturing Committee shall provide an annual report
to the Joint Venture Company for use in a Business Plan and the Manufacturing
Plan.

     

    (c) Manufacturing
Plan.  The JV Parties shall use best efforts to cause the Joint
Venture Company to prepare an annual manufacturing plan (the “Manufacturing Plan”) under the
direction of the President, with input from the Executive Vice President, the JV
Parties and the Manufacturing Committee (or such other persons or committees
charged with such responsibility from time to time by the JV
Parties).  The Manufacturing Plan shall seek to optimize the
efficiency and output of the Joint Venture Company and shall be updated monthly
by the Manufacturing Committee.  The Manufacturing Plan shall address
various manufacturing issues, including without limitation, the DRAM Products to
be manufactured, priority of wafer starts and weekly output.

     

    Section
7.3 Output Rights and
Obligations.

     

    (a) Supply
Agreement.  Effective as of the Closing, Micron and NTC will
enter into the Supply Agreement with the Joint Venture Company.  No
amendment or modification of the terms or conditions of the Supply Agreement
shall be made without prior written notice to and the prior written consent of
NTC and Micron.

     

    (b) Output
Percentage.  [***].

     

    Section
7.4 Marketing and
Sales.  With respect to DRAM Products purchased from the Joint
Venture Company, each of Micron and NTC shall be free to compete against each
other, anywhere in the world and with any customers, using its own marketing and
sales channels and personnel.  The JV Parties agree that appropriate
safeguards shall be put in place by each JV Party, and the JV Parties shall use
best efforts to cause the Joint Venture Company to put in place such safeguards,
to ensure compliance with all applicable competition or anti-trust
laws.

     

    Section
7.5 Business Plans and
Budgets.

     

    (a) Annual Business Plan; Annual
Budget.

     

    (i) For each
Fiscal Year, the JV Parties shall use best efforts to cause the President, in
consultation with the Executive Vice President and with input from the
Manufacturing Committee or such other relevant Persons or committees charged by
the JV Parties with responsibility for such matters from time to time, to
prepare and submit to the Board of Directors for approval, an annual business
plan (the “Annual Business
Plan”) [***].

     

    (ii) The
Annual Business Plan shall include an annual budget (“Annual Budget”) which shall
cover [***].

     

    
      
        
          
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    (iii) The JV
Parties shall use best efforts to cause the Annual Business Plan, including the
Annual Budget, to not be amended, updated, modified or superseded without the
approval of the Board of Directors.

     

    (b) Transition Supply
Obligation. With respect to a Share Disposition of all (but not less than
all) of the Shares then owned by a JV Party as contemplated under
Sections 9.3, 12.3, 12.6 and 13.1, the JV Party that remains a shareholder
of the Joint Venture Company after such Share Disposition shall,
[***].

     

    ARTICLE
8


     

    EMPLOYEE
MATTERS

     

    Section
8.1 Employees.

     

    (a) Employees of the Joint
Venture Company.  The JV Parties shall use best efforts to
cause the Joint Venture Company to employ its own personnel, including
administrative staff, operators, technicians and engineers, and, except with
respect to employees assigned to the Joint Venture Company pursuant to the
Micron Assigned Employee Agreement or NTC Assigned Employee Agreement, to be
their exclusive employer.

     

    (b) Hiring.  The
JV Parties shall use best efforts to cause the number, position and compensation
of the employees of the Joint Venture Company to be as determined by the
President in consultation with the Executive Vice President, consistent with the
Annual Business Plan and other employee policies, program and benefits approved
by the Board of Directors or as otherwise expressly authorized by the Board of
Directors.

     

    (c) Employee
Policies.  The JV Parties shall use best efforts to cause,
subject to the approval of the Board of Directors, the Joint Venture Company to
put in place and implement such employee policies, programs and benefits as
determined by the President in consultation with the Executive Vice President or
as may otherwise be required by Applicable Laws.

     

    Section
8.2 Assigned
Employees.

     

    (a) Micron Assigned Employee
Agreement.  Certain employees of Micron may be assigned or
transferred to work at or with the Joint Venture Company.  In
connection therewith, Micron and the Joint Venture Company shall enter into the
Micron Assigned Employee Agreement.

     

    (b) NTC Assigned Employee
Agreement.  Certain employees of NTC may be assigned
or transferred to work at or with the Joint Venture Company.  In
connection therewith, NTC and the Joint
Venture Company shall enter into the NTC Assigned Employee
Agreement.

     

    Section
8.3 Employment and
Service-Related Forms.  The JV Parties shall use best efforts
to cause the Joint Venture Company to have policies applicable to, and ensure
that all of its officers, employees and third-party independent contractors,
third-party consultants, and other third-party service providers enter into
appropriate agreements with respect to, (a) protection of confidential
information of the Joint Venture Company, (b) compliance with Applicable Laws,
(c) other matters related to the delivery of services to, or employment of such
Person by, the Joint Venture Company, (d) intellectual property creation and
assignment documents, including invention disclosures, pursuant to which
ownership to any intellectual property created in the course of employment with
(or service to) the Joint Venture Company shall be transferred and assigned to
the Joint Venture Company or its designee, as appropriate.

     

    
      
        
          
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    Section
8.4 [***]

     

    (a) [***].  During
the [***], MNL shall not, and shall cause Micron and its Affiliates not to,
without the prior written consent of NTC, [***], provided that such Affiliate of
Micron does not do so with information or assistance provided by Micron,
[***].

     

    (b) [***].  During
the [***], NTC shall not, and shall cause its Affiliates not to, without the
prior written consent of MNL and Micron, [***], provided that such Affiliate of
NTC does not do so with information or assistance provided by NTC,
[***].

     

    ARTICLE
9

     

    TRANSFER
RESTRICTIONS

     

    Section
9.1 Restrictions on
Transfer.

     

    (a) Transfer
Prohibitions.

     

    (i) A JV
Party shall in no event sell, exchange, transfer, dispose of, encumber, pledge,
mortgage or hypothecate (each a “Transfer”), whether directly
or indirectly, any part of the Shares of the Joint Venture Company owned by it
to any Person if immediately after such Transfer such JV Party’s Equity Interest
would be below [***].

     

    (ii) The JV Parties agree
that:

     

    (A) MNL shall
in no event Transfer any part of the Shares of the Joint Venture Company owned
by it to a [***] without the prior written consent of NTC; and

     

    (B) NTC shall
in no event Transfer any part of the Shares of the Joint Venture Company owned
by it to a [***] without the prior written consent of MNL; provided,
however, the provisions of this Section 9.1(a)(ii) shall not apply to any
Transfer of Shares conducted on, and through the normal, public trading
procedures of, the Taiwan Stock Exchange or any other stock exchange upon which
the Shares are listed, in each case other than Transfers conducted through
after-hours trading on such exchanges.

     

    (b) Change of Control
Event.  [***].

     

    (c) Transferee to be
Bound.  Notwithstanding consent being given by one JV Party to
the other JV Party for the Transfer of any part of the Shares of the Joint
Venture Company owned by the transferring JV Party to any Person, the
transferring JV Party shall cause and procure the transferee to agree in writing
to perform and be bound by all duties and obligations of the transferring JV
Party, including the any transfer restrictions under Section 9.1 of this
Agreement, except where the Transfer is conducted on, and through the normal,
public trading procedures of, the Taiwan Stock Exchange or any other stock
exchange upon which the Shares are listed, in each case other than Transfers
conducted through after-hours trading on such exchanges.

     

    
      
        
          
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    Section
9.2 Permitted
Transfers.  Notwithstanding Section 9.1, a JV Party may
Transfer all (but not less than all) of its shares in the Joint Venture Company
to [***] (a “Permitted
Transfer”); provided, that:

     

    (a) such
transferee shall agree in writing to perform and be bound by all duties and
obligations of the transferring JV Party, including the obligations set forth in
this Agreement and any Joint Venture Documents to which the transferring JV
Party is a party;

     

    (b) the
transferring JV Party shall not be released from its duties and obligations
under this Agreement or any other Joint Venture Documents and shall remain fully
liable for the performance thereof by such transferee;

     

    (c) [***];
and

     

    (d) at least
[***] days prior written notice of any such Transfer by a JV Party of shares in
the Joint Venture Company shall be provided to the other JV Party.

     

    (e) prior to
the effectiveness of a Transfer permitted under this Section 9.2, the
transferring JV Party shall deliver to the Board of Directors and the other JV
Party a certificate stating that:

     

    (i) the
transferring JV Party is not in breach of any provisions of this Agreement or
any other Joint Venture Documents to which the transferring JV Party is a
party;

     

    (ii) immediately
after giving effect to such Transfer, there will exist no event of default or an
event or condition that, with the giving of notice or lapse of time or both,
would constitute an event of default of the Transferor or such transferee under
this Agreement or any of the Joint Venture Documents; and

     

    (iii) the
Transfer will not, and could not reasonably be expected to, cause an adverse
effect on the Joint Venture Company or the other JV Party, including any
material adverse tax consequences or an adverse effect due to the loss of
intellectual property rights.

     

    Section
9.3 Right of First
Refusal.

     

    (a) Transfer
Notice.  At any time during the term of this Agreement, and
further subject to Section 9.1, if a JV Party proposes to Transfer all or any
part of the Shares in the Joint Venture Company in one or more related
transactions (such JV Party a “Transferor”) to any party
other than a Wholly-Owned Subsidiary of Micron or the Transferor, then the
Transferor shall give the other JV Party (the “Receiving Party”) a written
notice of the Transferor’s intention to make the Transfer (the “Transfer Notice”), which shall
include [***].  The Transfer Notice shall also certify that the
Transferor has received a firm offer from the prospective transferee and in good
faith believes a binding agreement for such Transfer is obtainable on the terms
set forth in the Transfer Notice.

     

    
      
        
          
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    (b) Option to
Purchase.  The Receiving Party shall have the first right and
option, at its sole discretion, but not the obligation, to purchase all (but not
less than all) of the Offered Shares pursuant to the Sale Offer by delivering a
written notice to the Transferor within [***] days from the date of the Sale
Offer (such period, the “Option
Period”) stating the Receiving Party’s intention to exercise its right
and option to purchase the Offered Shares.

     

    (c) Closing of Transfer to
Receiving Party.  The Transfer of Offered Shares resulting from
acceptance of the Sale Offer by the Receiving Party in accordance with paragraph
(b) above shall take place at a closing on a date designated by the Receiving
Party within [***] days following such acceptance (or, if any governmental or
regulatory approvals, consents, filings or authorizations are required in
connection with such Transfer, within [***] days following the receipt of all
such approvals, consents, filings or authorizations), or at such other time as
the Transferor and the Receiving Party may otherwise agree.  At such
closing, the Transferor shall be obligated to sell and Transfer the Offered
Shares and the Receiving Party shall pay the purchase price for such shares in
accordance with the terms and conditions set forth in the Sale
Offer.

     

    (d) Sale to Third
Party.  If the Receiving Party elects not to, or fails to give
any notice of its intention to, purchase all of the Offered Shares within the
Option Period, then, subject to Section 9.1, the Transferor shall have the right
for [***] days thereafter (hereinafter the “Transfer Period”) to Transfer
the Offered Shares to the prospective transferee identified in the Transfer
Notice; provided, however, [***].  If such Transfer is not completed
within the Transfer Period, the Transferor shall no longer be permitted to sell
such Offered Shares except to again comply with the provisions of this Section
9.3.

     

    (e) Excluded
Transfers.  Notwithstanding the forgoing, the provisions of
this Section 9.3 shall not apply to any Transfer of Shares or depository
receipts representing the Shares by a JV Party conducted on, and through the
normal, public trading procedures of, the Taiwan Stock Exchange or any other
stock exchange upon which the Shares or depository receipts are listed, in each
case other than Transfers conducted through after-hours trading on such
exchanges.

     

    ARTICLE
10

     

    ACCOUNTING;
FINANCIAL MATTERS

     

    Section
10.1 Accounting.  The
JV Parties shall use reasonable efforts to cause the Joint Venture Company’s
books of account and records to be kept and maintained in accordance with Taiwan
GAAP applied on a consistent basis.  The JV Parties shall use
reasonable efforts to cause the fiscal year of the Joint Venture Company to be
from January 1 to December 31 (“Fiscal Year”) and the Fiscal
Quarter of the Joint Venture Company to be based on calendar months (ending on
the last day of each three-month period).

     

    
      
        
          
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    Section
10.2 Access to
Information.

     

    (a) Inspection.  To
the extent not in violation of Applicable Laws, the JV Parties shall use best
efforts to cause each JV Party and its agents (which may include employees of
the JV Party (or, in the case of MNL, of Micron) or the JV Party’s independent
certified public accountants (or, in the case of MNL, Micron’s independent
certified public accountants)) to have the right, at any reasonable time, to
inspect, review, copy and audit (or cause to be audited) at the expense of the
inspecting JV Party any and all properties, assets, books of account, corporate
records, contracts, documentation and any other material of the Joint Venture
Company or any of its Subsidiaries, at the request of the inspecting JV Party,
whether in the possession of the foregoing or its (or their) independent
certified public accountants.  Upon such request, the JV Parties shall
use reasonable efforts to cause the Joint Venture Company and each of its
relevant Subsidiaries to use reasonable efforts to make available (or cause to
make available) to such inspecting JV Party the Joint Venture Company’s
accountants and key employees for interviews to verify information furnished or
to enable such JV Party to otherwise review the Joint Venture Company or any of
its Subsidiaries and their operations.

     

    (b) Competitively Sensitive
Information.  The JV Parties recognize that the Joint Venture
Company may, from time to time, be in possession of Competitively Sensitive
Information belonging to a JV Party, and in no event shall a JV Party be
entitled to access any Competitively Sensitive Information of the other JV Party
in the possession of the Joint Venture Company.  The JV Parties shall
use reasonable efforts to cause the Joint Venture Company to maintain procedures
reasonably acceptable to both JV Parties (including requiring that the JV
Parties use reasonable efforts to label or otherwise identify Competitively
Sensitive Information as such) to ensure that the Joint Venture Company will not
disclose or provide Competitively Sensitive Information of one JV Party to the
other JV Party (other than to a Joint Venture Company employee or to an assigned
employee of the other JV Party to the extent required for such employee or
assigned employee to perform his or her duties for the Joint Venture Company) or
any third party unless such disclosure is specifically requested by the JV Party
providing such Competitively Sensitive Information.

     

    (c) Information
Right.  The JV Parties shall use reasonable efforts to cause
the Joint Venture Company to, and to cause the Board of Directors to cause the
Joint Venture Company to, provide to each JV Party, without cost to the JV
Parties (except as otherwise provided below), the following:

     

    (i) Monthly
Reports.  At the end of each fiscal month, the Joint Venture
Company, and, if requested, each of its Subsidiaries, if any, shall provide each
JV Party with the following monthly reports prepared in accordance with Taiwan
GAAP consistently applied, in each case within the time period specified
below:

     

    (A) monthly
cash flow report as soon as practicable, but not later than [***] days after the
end of each fiscal month;

     

    (B) month-end
balance sheet as soon as practicable, but not later than [***] days after the
end of each fiscal month;

     

    
      
        
          
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    (C) monthly
income statement as soon as practicable, but not later than [***] days after the
end of each fiscal month;

     

    (D) monthly
operational spending summary as soon as practicable, but not later than [***]
days after the end of each fiscal month; and

     

    (E) such
other reports as may be reasonably requested by each JV Party.

     

    (ii) Quarterly
Reports.  As soon as practicable, but not later than [***] days
after the end of each Fiscal Quarter, a consolidated balance sheet of the Joint
Venture Company as of the end of such period and consolidated statements of
income, cash flows and changes in shareholders’ equity, as applicable, for such
Fiscal Quarter and for the period commencing at the end of the previous Fiscal
Year and ending with the end of such period, setting forth in each case in
comparative form the corresponding figures for the corresponding period of the
preceding fiscal year, each prepared in accordance with Taiwan
GAAP.  The quarterly financial statements shall be reviewed by a firm
of independent certified public accountants selected from time to time by the
Board of Directors (the “Accountants”).  As
soon as practicable, but not later than [***] days after the end of each Fiscal
Quarter, the Joint Venture Company shall also prepare a reconciliation of its
quarterly financial statements to U.S. GAAP as of the end of each Fiscal
Quarter.  The Joint Venture Company and MNL shall cooperate with
respect to the preparation of the quarterly financial statements and related
reconciliation for the Joint Venture Company’s current Fiscal Quarter, and the
presentation thereof shall be as mutually agreed by the Joint Venture Company
and MNL.

     

    (iii) Annual Financial
Statements.

     

    (A) As soon
as practicable, but not later than [***] days after the end of each Fiscal Year
of the Joint Venture Company, audited consolidated financial statements of the
Joint Venture Company and its Subsidiaries, which shall include statements of
income, cash flows and of changes in shareholders’ equity, as applicable, for
such Fiscal Year and a balance sheet as of the last day thereof, each prepared
in accordance with Taiwan GAAP, consistently applied, and accompanied by the
report of the Accountants.

     

    (B) As soon
as practicable, but not later than [***] days after the end of each Fiscal Year
of the Joint Venture Company, audited consolidated financial statements of the
Joint Venture Company and its Subsidiaries, which shall include statements of
income, cash flows and of changes in shareholders’ equity, as applicable, for
such Fiscal Year and a balance sheet as of the last day thereof, each prepared
in accordance with U.S. GAAP, consistently applied, and accompanied by the
report of the Accountants. Notwithstanding the first sentence of this Section
10.2(c), unless MNL requests that an audit of such U.S. GAAP financial statement
not be undertaken, MNL will bear the cost of such audit.

     

    Section
10.3 Other Information
Rights. The Joint Venture Company shall provide to MNL and its Affiliates
such financial, accounting and other information as MNL may reasonably request
in connection with the accounting and financial reporting obligations of MNL or
any of its Affiliates relating to the ownership of Shares.  If MNL
requests that the Accountants or MNL’s own auditors perform audit, review or
other agreed upon procedures in connection therewith, the fees and expenses of
the Accountants or MNL’s auditors relating thereto shall be borne by
MNL.

     

    
      
        
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    Section
10.4 Reportable
Events.  The JV Parties shall use reasonable efforts to cause
the Joint Venture Company to provide notice to the JV Parties of any Joint
Venture Company Reportable Event as soon as practicable and in any event not
later than [***] days after the Joint Venture Company becomes aware of such
Joint Venture Reportable Event.  The following events shall be “Joint Venture Reportable
Events”:

     

    (a) Receipt
by the Joint Venture Company or any of its Subsidiaries of an offer by any
Person to buy an equity interest in the Joint Venture Company or any of its
Subsidiaries or a significant amount of its assets or to merge or consolidate
with the Joint Venture Company or any of its Subsidiaries, or any indication of
interest from any Person with respect to any such transaction;

     

    (b) The
commencement, or threat delivered in writing, of any lawsuit involving the Joint
Venture Company or any of its Subsidiaries;

     

    (c) The
receipt by the Joint Venture Company or any of its Subsidiaries of a notice that
the Joint Venture Company or any of its Subsidiaries is in default under any
loan agreement to which the Joint Venture Company or any of its Subsidiaries is
a party;

     

    (d) Any
breach by the Joint Venture Company or any of its Subsidiaries or a JV Party or
an Affiliate of a JV Party of any contract between the Joint Venture Company or
any of its Subsidiaries and a JV Party or an Affiliate of a JV
Party;

     

    (e) The
removal or resignation of the auditor for the Joint Venture Company, or any
adoption, or material modification, of any significant accounting policy or tax
policy other than those required by Taiwan GAAP; or

     

    (f) Any other
event that has had or could reasonably be expected to have a material adverse
effect on the business, results of operations, financial condition or assets of
the Joint Venture Company or any of its Subsidiaries.

     

    Section
10.5 Distributions and Dividend
Policy.

     

    [***]

     

    Section
10.6 Bank Accounts and
Funds.  The JV Parties shall use reasonable efforts to cause
the funds of the Joint Venture Company, including any cash capital
contributions, to be deposited in an interest-bearing account or accounts in the
name of the Joint Venture Company and to not be commingled with the funds of any
JV Party or any other Person.  The JV Parties shall use reasonable
efforts to cause the checks, orders or withdrawals to be signed by any one or
more Persons as authorized by the Board of Directors.

     

    
      
        
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    Section
10.7 Internal
Controls.  The JV Parties shall use reasonable efforts to cause
the Joint Venture Company to have in place a system of internal accounting
controls, in accordance with the policies agreed by the JV Parties, which shall
be approved by the Board of Directors and monitored by the President and the
Executive Vice President.  The JV Parties shall use best efforts to
provide that changes to the Joint Venture Company’s system of internal
accounting controls shall be made at the request of either JV Party, subject to
the approval of the Board of Directors; provided, however, that in the event one
JV Party is required to consolidate the financial results of the Joint Venture
Company under applicable GAAP, the internal controls and accounting systems of
the Joint Venture Company shall be modified as necessary to satisfy that JV
Party’s requirements relating to internal controls and financial reporting and
such JV Party shall be entitled to receive the information and perform the
testing that it deems necessary or advisable to satisfy its responsibilities
related thereto.  At the request of a JV Party, the JV Parties shall
use their best efforts to cause the Joint Venture Company to (i) permit an
independent auditor retained by such requesting JV Party and reasonably
acceptable to the Joint Venture Company to perform a reasonable evaluation of
the internal controls and accounting systems of the Joint Venture Company,
provided that such evaluation is undertaken at the cost of the requesting JV
Party and (ii) cooperate with such evaluation.

     

    Section
10.8 FCPA.  The
JV Parties shall use their best efforts to cause the Joint Venture Company to
comply with, and establish appropriate procedures to ensure compliance with, the
United States Foreign Corrupt Practices Act of 1977, as amended.

     

    ARTICLE
11


     

    OTHER
AGREEMENTS AND COVENANTS

     

    Section
11.1 Tax
Cooperation.  The JV Parties shall cooperate in a good faith,
commercially reasonable manner to maximize tax benefits and minimize tax costs
of the Joint Venture Company and of the JV Parties or their Affiliates with
respect to the activities of the Joint Venture Company, consistent with the
overall goals of the Joint Venture Documents.  Such cooperation shall
include (a) NTC’s use of reasonable efforts to assist Micron, MNL and the Joint
Venture Company in applying for applicable tax incentives and for a tax
withholding exemption in Taiwan, the Netherlands and such other jurisdictions as
may be relevant, with respect to payments made by either, NTC or the Joint
Venture Company to Micron or MNL, or by MNL or an Affiliate of MNL to the Joint
Venture Company and (b) MNL’s use of reasonable efforts to assist NTC in
applying for applicable tax incentives and for a tax withholding exemption in
Taiwan, the Netherlands and such other jurisdictions as may be relevant, with
respect to payments made by either, the Joint Venture Company to NTC, or by NTC
or an Affiliate of NTC to the Joint Venture
Company.  [***].

     

    Section
11.2 Use of JV Party
Names.  Except as may be expressly provided in the Joint
Venture Documents, nothing in this Agreement shall be construed as conferring on
the Joint Venture Company, any Subsidiary of the Joint Venture Company or either
JV Party the right to use in advertising, publicity, marketing or other
promotional activities any name, trade name, trademark, service mark or other
designation, or any derivation thereof, of the JV Parties (in the case of a JV
Party, the other JV Party).

     

    Section
11.3 JV Parties’
Covenants.  Each JV Party agrees and covenants that it will
not, without the prior written consent of the other JV Party:

     

    
      
        
          
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    (a) confess
any judgment against the Joint Venture Company;

     

    (b) enter
into any agreement on behalf of, or otherwise purport to bind, the other JV
Party or the Joint Venture Company;

     

    (c) cause the
Joint Venture Company to take any action in contravention of the Articles of
Incorporation;

     

    (d) cause the
Joint Venture Company to dispose of the goodwill or the business opportunities
of the Joint Venture Company; or

     

    (e) cause the
Joint Venture Company to assign or place its property in trust for creditors or
on the assignee’s promise to pay any indebtedness of the Joint Venture
Company.

     

    Section
11.4 Contractual Relationship
Between the Joint Venture Company and Any JV Party.  With
respect to any contract (including under the Fab Lease or the Supply Agreement)
between the Joint Venture Company and a JV Party (or an Affiliate of a JV
Party), the other JV Party shall have the right to demand that the Joint Venture
Company, and shall have the right to cause the Joint Venture Company to, take
any action, pursue any right, enforce any obligation or seek recourse pursuant
to or under such contract, including with respect to the assertion of any claim
or cause of action for breach of contract against the JV Party (or an Affiliate
of the JV Party) involved in such contractual relationship with the Joint
Venture Company.  In respect thereof, each JV Party agrees that it
will not, and it shall cause its representatives elected as directors of the
Joint Venture Company to not, interfere with or otherwise obstruct in any
respect such action, pursuit, enforcement or recourse.

     

    Section
11.5 [***]

     

    [***]

     

    Section
11.6 [***]

     

    ARTICLE
12

     

    DEADLOCK;
EVENTS OF DEFAULT

     

    Section
12.1 Deadlock.  A
“Deadlock” shall [***]
is required for approval, and such matter is not approved because, in the case
of a [***] is not obtained.

     

    Section
12.2 Resolution of a
Deadlock.  If a Deadlock occurs, the JV Parties
shall:

     

    (a) first,
submit the matter that was the subject of the Deadlock to the president of each
of Micron and NTC by providing notice of the Deadlock to such Persons, and the
JV Parties shall use reasonable efforts to cause such Persons to make a good
faith effort to hold at least [***] in-person meetings between them to resolve
the Deadlock within sixty (60) days of their receipt of the notice of
Deadlock;

     

    
      
        
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    (b) next, if
the president of each of Micron and NTC are unable to resolve the Deadlock in
the given [***] days, then submit the matter to the chairman of each of Micron
and NTC for resolution, and the JV Parties shall use reasonable efforts to cause
such Persons to make a good faith effort to hold at least [***] in-person
meeting between them to resolve the Deadlock within [***] days following the
submission of the Deadlock to them;

     

    (c) next, if
the chairman of each of Micron and NTC are unable to resolve the Deadlock in the
given [***] days, either JV Party may commence mediation by providing to ICDR
and the other JV Party a written request for mediation, setting forth the
subject of the Deadlock and the relief requested.  The JV Parties will
cooperate with ICDR and with one another in selecting a mediator from an ICDR
panel of neutrals, and in scheduling the mediation proceedings to be held in
[***] during the [***] days following the commencement of
mediation.  The JV Parties covenant that they will participate in the
mediation in good faith, and that they will share equally in its
costs.  All offers, promises, conduct and statements, whether oral or
written, made in the course of the mediation by any of the JV Parties, by any of
their respective agents, employees, experts and attorneys and by the mediator
and any ICDR employees are confidential, privileged and inadmissible for any
purpose, including impeachment, in any litigation or other proceeding involving
the JV Parties, provided, that evidence that is otherwise admissible or
discoverable shall not be rendered inadmissible or non-discoverable as a result
of its use in the mediation.  Either JV Party may seek equitable
relief prior to the mediation to preserve the status quo pending the completion
of that process.  The provisions of this Section 12.2(c) may be
enforced by any court of competent jurisdiction, and the JV Party seeking
enforcement shall be entitled to an award of all costs, fees and expenses,
including attorneys’ fees, to be paid by the JV Party against whom enforcement
is ordered.

     

    Section
12.3 Buyout from
Deadlock.

     

    [***]

     

    Section
12.4 Event of
Default.  An “Event of Default” shall occur
if (a) a JV Party (the “Defaulting JV Party”) breaches
or fails to perform in any material respect any material obligation under this
Agreement and (b) at the end of the Cure Period therefor such breach or failure
remains uncured.

     

    Section
12.5 Cure
Period.  Upon a JV Party’s breach or failure to perform an
obligation under this Agreement, the other JV Party (the “Non-Defaulting JV Party”)
shall have the right to deliver to the Defaulting JV Party a notice of default
(a “Notice of
Default”).  The Notice of Default shall set forth the nature of
the Defaulting JV Party’s breach or failure of performance.  If the
Defaulting JV Party fails to cure the breach or failure within the Cure Period,
the Non-Defaulting JV Party shall be entitled to take such action as set forth
in Section 12.6.  For purposes hereof, “Cure Period” means a period
commencing on the date that the Notice of Default is provided by the
Non-Defaulting JV Party and ending (a) [***] days after Notice of Default is so
provided, or (b) in the case of any obligation (other than an obligation to pay
money) which cannot reasonably be cured within such [***] day period, such
longer period not to exceed [***] days after the Notice of Default is so
provided as is necessary to effect a cure of the Event of Default, so long as
the Defaulting JV Party diligently attempts to effect a cure throughout such
period.

     

    
      
        
          
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    Section
12.6 Default
Remedy.

     

    (a) Upon the
occurrence of an Event of Default, the Non-Defaulting JV Party shall have the
right, but not the obligation, by notice delivered in writing to the Defaulting
JV Party not later than [***] after the expiration of the applicable Cure Period
(the “Exercise Notice”),
to require the Defaulting JV Party to:

     

    [***]

     

    (b) The JV
Parties shall in good faith complete the sale and purchase transaction
contemplated under Section 12.6(a) as soon as practicable, but in no event later
than 180 days after the determination of Fair
Value.  [***]

     

    (c) Notwithstanding
anything to the contrary and in addition to the remedies provided under this
Section 12.6, the Joint Venture Company and the Non-Defaulting JV Party may also
pursue all other legal and equitable rights and remedies against the Defaulting
JV Party available to it.  The Defaulting JV Party shall pay all
costs, including reasonable attorneys’ fees, incurred by the Joint Venture
Company and the Non-Defaulting JV Party in pursuing any and all such legal
remedies.

     

    ARTICLE
13

     

    BUYOUT

     

    Section
13.1 Buyout
Right.

     

    (a) Exercise of Buyout
Right.  If at any time, the Equity Interest of a JV Party (for
purposes of this Section 13.1, the “Non-compliant JV Party”) falls
below the lesser of (i) [***] and (ii) [***] (for purposes of this Section 13.1,
the “Compliant JV
Party”), the Compliant JV Party  shall have the right, but not
the obligation, by notice to the Non-compliant JV Party in writing (such notice,
the “Buyout Notice”), to
purchase all (but not less than all) of the Shares of the Joint Venture Company
then owned by the Non-compliant JV Party and its Subsidiaries (such Shares, the
“Buyout Shares”) at the
Fair Value, [***] and such Buyout Notice is delivered to the Non-compliant JV
Party no later than [***] after such JV Party first becomes a Non-compliant JV
Party.

     

    (b) Completion of
Buyout.

     

    (i) The JV
Parties shall in good faith complete the sale and purchase transaction
contemplated under Section 13.1(a) as soon as practicable, but in no event later
than [***] after deliver of the Buyout Notice.

     

    (ii) [***]

     

    
      
        
          
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    Section
13.2 Buyout
Subsidiary.  In the event of a buyout of Shares as contemplated
under Sections 9.3, 12.3, 12.6 and/or 13.1, the JV Party subject to the buyout
of its Shares shall use its best efforts to transfer, prior to consummation of
the proposed buyout, all of the Shares subject to the buyout under Section 9.3,
12.3, 12.6 or 13.1, as applicable to a wholly-owned Subsidiary of such JV Party
(the “Buyout
Subsidiary”) that has no liabilities and holds no assets other than the
Shares subject to the buyout under Section 9.3, 12.3, 12.6 or 13.1, as
applicable.  If the Shares subject to the buyout under Section 9.3,
12.3, 12.6 or 13.1, as applicable, are transferred to the Buyout Subsidiary, the
JV Party acquiring such Shares shall have the right to acquire all of the
outstanding equity interests of the Buyout Subsidiary for the same price and on
the same terms as the JV Party would otherwise have acquired the Shares subject
to the buyout under Section 9.3, 12.3, 12.6 or 13.1, as applicable.

     

    ARTICLE
14

     

    TERMINATION

     

    Section
14.1 Effective
Date.  Subject to obtaining relevant regulatory approvals as
may be required, this Agreement shall become effective on the Closing Date, and
continue in force unless terminated in accordance with this
Agreement.

     

    Section
14.2 Termination.  This
Agreement shall terminate upon the Transfer of all of the Shares owned by one JV
Party and its Affiliates to the other JV Party and/or its Affiliates in
accordance with Section 12.3, 12.6 and 13.1; provided, that the following
provisions shall survive termination of this Agreement:  Sections 7.2
(to the extent Micron and NTC both continue to purchase Stack DRAM Products from
the Joint Venture Company under the Supply Agreement), 7.3 (to the extent Micron
and NTC both continue to purchase Stack DRAM Products from the Joint Venture
Company under the Supply Agreement), 11.2 and 14.2 and Article 15.

     

    ARTICLE
15

     

    GENERAL
PROVISIONS

     

    Section
15.1 Notices.  All
notices and other communications hereunder shall be in writing and shall be
deemed duly 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 JV 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

    Attn:  Legal  department

    Facsimile:
886-3-396-2226

    


    
      
        
          
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    if to
MNL:

     

    Micron
Semiconductor B.V.

    Naritaweg
165 Telestone 8

    1043BW
Amsterdam

    The
Netherlands

    Attn:  Managing
Director

    Facsimile:  020-5722650

    


     

    with a
mandatory copy to Micron:

     

    Micron
Technology, Inc.

    8000 S.
Federal Way

    Mail Stop
1-507

    Boise, ID
83716

    Attn:
General Counsel

    Facsimile:
(208) 368-4537

    


     

    Section
15.2 Waiver.  The
failure at any time of a JV Party to require performance by the other JV Party
of any responsibility or obligation required by this Agreement shall in no way
affect a JV Party’s right to require such performance at any time thereafter,
nor shall the waiver by a JV Party of a breach of any provision of this
Agreement by the other JV 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.

     

    Section
15.3 Assignment.  [***]

     

    Section
15.4 Amendment.  This
Agreement may not be amended or modified without the written consent of the JV
Parties.

     

    Section
15.5 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 JV Parties, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or other provision contained herein.

     

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

     

    Section
15.7 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 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.

     

    
      
        
          
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    Section
15.8 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.

     

    Section
15.9 Entire
Agreement.  This Agreement, together with the Appendices,
Exhibits and Schedules hereto and the agreements (including the Joint Venture
Documents) and instruments referred to herein, constitute the entire agreement
of the JV Parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, oral and written, between the JV Parties
with respect to the subject matter hereof.

     

    Section
15.10 Taxes and
Expenses.  Except as otherwise set forth in this Agreement, all
taxes, fees and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the JV Party incurring such
expenses.

     

    Section
15.11 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 and effect in all other respects.  Should any provision of
this Agreement be or become ineffective because of changes in Applicable Law or
interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of
this Agreement shall not be affected thereby.  If such circumstances
arise, the JV Parties shall negotiate in good faith appropriate modifications to
this Agreement to reflect those changes that are required by Applicable
Law.

     

    Section
15.12 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.

     

    Section
15.13 Confidential
Information.

     

    (a) The JV
Parties shall abide by the terms of that certain Second Amended and Restated
Mutual Confidentiality Agreement among Micron, MNL, NTC, MeiYa Technology
Corporation and the Joint Venture Company, dated as of the date of the 2nd
Closing, as may be amended or replaced from time to time (the “Confidentiality Agreement”),
which agreement is incorporated herein by reference.  The JV Parties
agree that the Confidentiality Agreement shall govern the confidentiality,
non-disclosure and non-use obligations between the JV Parties respecting the
information provided or disclosed in connection with this
Agreement.

     

    (b) If the
Confidentiality Agreement is terminated or expires and is not replaced, such
Confidentiality Agreement shall continue with respect to confidential
information provided in connection with this Agreement, notwithstanding such
expiration or termination, for the duration of the term of this Agreement or
until a new Confidentiality Agreement is entered into between the JV
Parties.  To the extent there is a conflict between this Agreement and
the Confidentiality Agreement, the terms of this Agreement shall
control.

     

    (c) The terms
and conditions of this Agreement shall be considered “Confidential Information”
under the Confidentiality Agreement for which each of Micron and NTC is
considered a “Receiving
Party” under such Confidentiality Agreement.

     

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

    


      
        	 
      	
                NANYA
      TECHNOLOGY CORPORATION

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                 /s/ Jih Lien

              
	 
      	 
      	
                Jih
      Lien

              
	 
      	 
      	
                President

              


      






    
 

     

    THIS
IS A SIGNATURE PAGE FOR THE JOINT VENTURE AGREEMENT

    ENTERED
INTO BY AND BETWEEN NTC AND MNL

     


    
      
        
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                MICRON
      SEMICONDUCTOR B.V.

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                By:

              	
                 /s/ Thomas L. Laws

              
	 
      	 
      	
                Thomas
      L. Laws

              
	 
      	 
      	
                Managing
      Director A

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/ Stefan Boermans / /s/Clemens van den
      Broek

              
	 
      	 
      	
                Name:   Stefan
      Boermans  /  Clemens van den Broek

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

              
	 
      	 
      	
                Managing
      Director B

              


      




    


    


     

     

    THIS
IS A SIGNATURE PAGE FOR THE JOINT VENTURE AGREEMENT

    ENTERED
INTO BY AND BETWEEN NTC AND MNL

     


     

    
      
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