Exhibit 10.164


    
      
        

      

      Exhibit
        10.164

      


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

       

      INTEL/MICRON
        CONFIDENTIAL

      


      


      SUPPLY
        AGREEMENT

       

      


      This
        SUPPLY AGREEMENT (the “Agreement”),
        is
        made and entered into as of this 27th day of February, 2007 (the “Effective
        Date”),
        by
        and between Intel Technology Asia Pte Ltd, a Singapore private limited company
        (“Intel
        Singapore”),
        and
IM
        Flash
        Singapore, LLP, a Singapore limited liability partnership
        (the
“Joint
        Venture Company”).

      


      RECITALS

       

      A.  The
        Joint
        Venture Company is engaged in the manufacturing, assembly and testing of
        NAND
        Flash Memory Products (as defined hereinafter) for Intel Singapore.

      


      B.  Intel
        Singapore and the Joint Venture Company (each, a “Party”
and
        collectively, the “Parties”)
        desire
        the Joint Venture Company to
        supply
Products,
        including Secondary Silicon,
        for
Intel
        Singapore in accordance with Intel Singapore’s Sharing Interest upon
        the
        terms and subject to the conditions set forth in this Agreement.

      


      AGREEMENT

      


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

       

      ARTICLE
        1

      DEFINITIONS;
        CERTAIN INTERPRETIVE MATTERS

      


      1.1  Definitions.
        In
        addition to the terms defined elsewhere in this Agreement, capitalized terms
        used in this Agreement shall have the respective meanings set forth in
Exhibit
        A.

      


      1.2  Certain
        Interpretive Matters.

      


      (a)  Unless
        the context requires otherwise, (1) all references to Sections, Articles,
        Exhibits, Appendices or Schedules are to Sections, Articles, Exhibits,
        Appendices or Schedules of or to this Agreement, (2) each of the Schedules
        will
        apply only to the corresponding Section or subsection of this Agreement,
        (3)
        each accounting term not otherwise defined in this Agreement has the meaning
        commonly applied to it in accordance with Modified GAAP, (4) words in the
        singular include the plural and visa versa, (5) the term “including”
means
        “including


      
        
          
          

        

        
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      without
        limitation,” and (6) the terms “herein,”
        “hereof,”
        “hereunder”
and
        words of similar import shall mean references to this Agreement as a whole
        and
        not to any individual Section or portion hereof. All references to $ or dollar
        amounts will be to lawful currency of the United States of America. All
        references to “day”
or
        “days”
will
        mean calendar days
        and all
        references to “quarter(ly),”
        “month(ly)”
or
        “year(ly)”
will
        mean Fiscal Quarter, Fiscal Month or Fiscal Year, respectively.

      


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

       

      ARTICLE
        2

      OBLIGATIONS
        OF THE JOINT VENTURE COMPANY; 

      PROCESSES
        AND CONTROLS

      


      2.1  General
        Obligations.
        The
        Joint Venture Company will (1)
        supply Product to Intel Singapore in accordance with the purchasing process
        set
        forth in Article
        4
        hereof;
        (2) develop its Facilities and operations to meet Capacity according to the
        Initial Business Plan, as may be amended thereafter, and the Operating Plan
        and
        the obligations set forth herein, including Sections
        2.2, 2.5 and 2.9;
        (3)
        supply Products which meet the Specification(s), Price, Yield, Cycle-Time,
        and
        Quality and Reliability as agreed by the Parties; and (4) operate its Facilities
        so that Product output from any one Facility matches the other Facilities
        in
        form, fit and function, in accordance with Section
        2.14.

      


      2.2  Products
        to Supply.
        The
        Joint Venture Company will manufacture, assemble and test Products for Intel
        Singapore in accordance with the Operating Plan and applicable Specifications,
        developed in response to Intel Singapore’s Demand Forecast provided to the Joint
        Venture Company in accordance with Article
        3
        below.

      


      2.3  Process
        and Design Information.
        Intel
        Singapore agrees to provide to the Joint Venture Company: (i) such process
        technology or information as is required to be disclosed under the Joint
        Development Program Agreement, and the Technology License Agreement; and
        (ii)
        design information reasonably required to manufacture NAND Flash Memory
        Wafers.

      


      2.4 Control;
        Processes.
        The
        Joint Venture Company and Intel Singapore will review the Joint Venture
        Company’s control and process mechanisms, including but not limited to such
        mechanisms that are utilized to ensure that all parameters of the Specification,
        including the Performance Criteria, are met or exceeded in the Joint Venture
        Company’s manufacture of Products by either the Joint Venture Company or its
        approved subcontractor for Intel Singapore. The Parties agree to work together
        in good faith to define mutually agreeable control and process mechanisms
        including the following:
        [***].


      


      2.4  Equipment,
        Systems, Materials.
        Except
        as
        provided in other Joint Venture Documents, the
        Joint
        Venture Company shall be responsible for procuring all manufacturing equipment,
        tools, automated material handling systems therein and materials, including
        Prime


      
        
          
          

        

        
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      Wafers,
        which are reasonably required for the Joint Venture Company to achieve the
        Operating Plan. The Joint Venture Company shall endeavor to manage the entire
        supply chain, including equipment, materials, systems, maintenance,
        subcontractors and vendors, to create efficiency and maximize the Performance
        Criteria.

      


      2.5  Production
        Masks.
        Unless
        otherwise agreed with Intel Singapore, the Joint Venture Company or its
        subcontractors will be responsible to obtain, maintain, repair and replace
        masks
        used in the production of Products.
        Such
        masks will only be used in the production of Products for Intel Singapore.
        Production masks will be repaired and replaced solely at mask operations
        which
        have been approved by Intel Singapore, and which approval shall not be
        unreasonably withheld. The Joint Venture Company or its subcontractors will
        retain possession, but not ownership of any underlying copyrights, maskworks
        or
        other intellectual property, of any physical production masks which the Joint
        Venture Company has made under this Section
        2.6.
        

      


      2.6  Designation
        of WIP.
        At
        Intel
        Singapore’s option, the Joint Venture Company will ensure that WIP at Facilities
        or its subcontractor’s facilities is designated for Intel Singapore from Wafer
        Start. If Intel Singapore does not elect to have WIP so designated, the Joint
        Venture Company will designate the WIP for Intel Singapore after Probe
        Testing.
        Custom
        Product of Intel Singapore, if any, must be designated as for Intel Singapore
        from Wafer Start at all the Facilities or its subcontractor’s
        facilities.

      


      2.7  Subcontractors.
        The
        Joint Venture Company may utilize subcontractors to perform any portion of
        the
        manufacture, assembly and test process in making Products for Intel Singapore,
        subject to all subcontractors being approved by the Members, and which approval
        shall not be unreasonably withheld. The
        Joint
        Venture Company will ensure that all contracts with subcontractors will provide
        the Joint Venture Company with the same level of access and controls as set
        forth in the Agreement, including Sections
        2.4, 2.9, 2.10, 2.11 and 2.12 and Article 5.

      


      2.8  Staffing.
        The
        Joint Venture Company shall adequately staff its Facilities, and ensure that
        its
        subcontractors adequately staff their facilities, to sustain and manage
        production of Product for Intel Singapore, including the obligations set
        forth
        in Section
        2.1
        and
        meeting scheduled commitments, including the Operating Plan and the Performance
        Criteria.

       

      2.9  Business
        Continuity Plan.
        The
        Joint Venture Company will develop a process (the “Business
        Continuity Plan”)
        to
        recover the production process in the event of a natural disaster or any
        other
        event that disrupts the production process or the ability of the Joint Venture
        Company to meet its delivery commitments to Intel Singapore or satisfy customer
        orders. If requested by Intel Singapore, the Joint Venture Company will review
        its Business Continuity Plan with Intel Singapore and make changes as agreed
        with Intel Singapore, subject to any confidentiality requirements. 

       

      2.10  [***].
        In
        addition to the quarterly review and monthly report requirements set forth
        in
Sections
        3.2 and 3.3,
        the
        Joint Venture Company will promptly notify Intel Singapore of [***].
        

      


      2.11  Traceability
        and Data Retention.
        Intel
        Singapore and the Joint Venture Company shall review the Joint Venture Company’s
        process traceability system [***].
        The
        Joint Venture


      
        
          
          

        

        
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      Company
        agrees to maintain such data for a
        minimum
        of
        [***].
        The
        Joint
        Venture Company will endeavor to provide Intel Singapore [***].

       

      2.12  Additional
        Customer Requirements.
        Intel
        Singapore will inform the Joint Venture Company in writing of any auditable
        supplier requirements of
        any
        Intel Singapore customer relating
        to any Facility at which Product is manufactured, assembled or
        tested.
        The
        Parties will work together in good faith to resolve such requests.

      


      2.13  Transfer;
        Equivalency
        of Operations.
        Intel
        Singapore will cooperate in good faith with the Joint Venture Company to
        transfer Intel Singapore’s technology to the Joint Venture Company, if such
        technology transfer is required under the Joint Venture Documents. The Joint
        Venture Company will establish similar baseline Product performance standards,
        including form, fit and function, at Facilities and subcontracted facilities.
        Such efforts will include the provision of up to date equivalent materials
        (including correlation wafers), data and information. 

      


      ARTICLE
        3

      PLANNING
        MEETINGS AND FORECASTS; 

      PERFORMANCE
        REVIEWS AND REPORTS

      

        3.1    Planning
          and Forecasting


      

      (a)  Intel
        Singapore will quarterly provide the Joint Venture Company, in a timeframe
        to be
        mutually agreed by the Parties to meet customer expectations, with a written
        demand forecast for [***]
        ([***])
        quarters corresponding to the Joint Venture Company’s Fiscal Quarters or as may
        be otherwise agreed between the Parties. This demand will include desired
        finished product breakout by design id, technology node, wafer as finished
        goods
        or package type (“Demand
        Forecast”).
        

      


      (b)  The
        Joint
        Venture Company shall furnish Intel Singapore with a written response within
        [***]
        ([***])
        Business Days indicating a response regarding capacity and what portion of
        the
        demand that the Joint Venture Company can commit to meet. This written response
        (the “Planning
        Forecast”)
        will
        include:

      


      [***]

      


      (c)  Based
        on
        the Planning Forecast, the Joint Venture Company shall develop a [***]
        ([***])
        Fiscal
        Quarter proposed Product loading plan for such period (“Proposed
        Loading Plan”).
        The
        Joint Venture Company shall provide Intel Singapore with the Proposed Loading
        Plan at least [***]
        ([***])
        Business Days prior to its review by the Manufacturing Committee.

      


      (d)  The
        Joint
        Venture Company will submit the Proposed Loading Plan, Planning Forecast
        and
        other requested information to the Manufacturing Committee for endorsement.
        Once
        endorsed by the Manufacturing Committee, the Proposed Loading Plan shall
        become
        part of the Operating Plan. 

       

      3.2     Performance
        Reviews and Reports.
        The
        Joint Venture Company shall meet with


      
        
          
          

        

        
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      Intel
        Singapore each quarter to discuss the Performance Criteria and the most recent
        monthly report. The monthly report will be distributed to Intel Singapore
        monthly, on a date to be agreed by the Parties, and will include the following
        information:

      


      (a) Describes
        [***];

      


      (b) Describes
        [***];
        

      


      (c) Describes
        [***].

      


      (d) Identifies
        [***].

      


      3.3  Monthly
        Review.
        In
        addition, the Parties shall hold a monthly meeting, on a date to be agreed
        by
        the Parties, with the primary purpose of [***].

      


      ARTICLE
        4

      PURCHASE
        AND SALE OF PRODUCTS

       

      4.1  Product
        Quantity.
        Intel
        Singapore shall purchase from the Joint Venture Company a percentage, equal
        to
        Intel Singapore’s Sharing Interest (as the same may change from time to time),
        of all of the Joint Venture Company’s output of Products that meet the
        Specifications. The Joint Venture Company shall produce
        all Products in accordance with the Operating Plan developed in response
        to
Intel
        Singapore’s Demand Forecast under Article
        3
        above.
If
        Intel
        Singapore fails to purchase its full Sharing Interest of the Joint Venture
        Company’s output, produced in accordance with the Operating Plan (“Under-loading”),
        then
        the increased Prices associated with such Under-loading shall be isolated
        and
        charged solely to Intel Singapore, which Intel Singapore shall remain solely
        responsible for paying. Notwithstanding the foregoing, Intel Singapore may
        elect, but is not obligated, to purchase Product in excess of its Sharing
        Interest only by
        mutual
        agreement of the other Member. 

      


      4.2  Secondary
        Silicon.
        Any
        Secondary Silicon produced by the Joint Venture Company or its subcontractors
        will be provided [***]
        by the
        Joint Venture Company to the Members in a percentage equal to Intel Singapore’s
        Sharing Interest (as the same may change from time to time). ALL SECONDARY
        SILICON PROVIDED HEREUNDER IS PROVIDED ON AN “AS IS,” “WHERE IS” WITH ALL FAULTS
        AND DEFECTS BASIS WITHOUT WARRANTY OF ANY KIND.

      


      4.3  Placement
        of Purchase Orders.
        Prior
        to the commencement of every Fiscal Quarter or another time period agreed
        by the
        Parties in conjunction with the planning cycle specified in Article
        3,
        the
        Joint Venture Company shall place a non-cancelable blanket purchase order
        in
        writing (via e-mail or facsimile transmission) for the quantity of Product
        to be
        supplied by the Joint Venture Company in the following Fiscal Quarter as
        indicated in the Operating Plan (each such order, a “Purchase
        Order”).
        Intel
        Singapore may issue change orders to such Purchase Orders to reflect changes
        in
        the Operating Plan, provided that such changes can be reasonably accommodated
        by
        the Joint Venture Company
        without
        disrupting ongoing manufacturing operations. Intel Singapore may also elect
        to
        place out-of-cycle purchase order of Product, including expedited Probed
        Wafers,
        to the Joint Venture Company on an as-needed basis. The


      
        
          
          

        

        
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      terms
        and
        conditions of this Agreement supersede the terms and conditions contained
        in
        either Party’s sales or purchase documentation provided in connection herewith
        unless expressly agreed otherwise in a writing signed by each
        Party.

      


      4.4  Shortfall.
        The
        Joint Venture Company shall immediately notify Intel Singapore in writing
        of any
        inability to meet a Purchase Order commitment to Intel Singapore.

      


      4.5  Acceptance
        of Purchase Order.
        Each
        Purchase Order that corresponds to the Operating Plan in the manner contemplated
        by Section
        4.3
        and is
        otherwise free of errors shall be deemed accepted by the Joint Venture Company
        upon receipt and shall be binding on the Parties to the extent not inconsistent
        with the Operating Plan.

      


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

       

      	(a)  	
              Purchase
                Order number;

            


      


      	(b)  	
              Description
                and part number of each Product;

            


      


      	(c)  	
              Forecasted
                quantity of each different Product and the Sharing Interest portion
                thereof for the calendar month;

            


      


      	(d)  	
              Forecasted
                unit Price and total forecasted Price for each different Product,
                and
                total forecasted Price for all Products
                ordered;

            


      


      	(e)  	
              Level
                of Probe Testing;

            


      


      	(f)  	
              Marking
                specification and packaging requirements;

            


      


      	(g)  	
              Requested
                delivery date;

            


      


      	(h)  	
              Place
                of delivery; and

            


      


      	(i)  	
              Other
                terms (if any).

            


       

      4.7    Taxes.

       

      (a)  General.
        All sales, use and other transfer taxes imposed directly on or solely as
        a
        result of the supplying of Products and the payments therefore provided herein
        shall be stated separately on the Joint Venture Company’s invoice, collected
        from Intel Singapore and shall
        be
        remitted by the Joint Venture Company to the appropriate tax authority
        (“Recoverable
        Taxes”),
        unless
        Intel Singapore provides valid proof of tax exemption
        prior
        to
        the effective date of the transfer of the Products or otherwise as permitted
        by
        law prior to the time the Joint Venture Company is required to pay such taxes
        to
        the appropriate tax authority.
        When
        property is delivered and/or services are provided or the benefit of
        services
        occurs
        within jurisdictions in which collection and remittance of taxes by Intel
        Singapore is required by law, the Joint Venture Company shall have sole
        responsibility for payment of said taxes to the appropriate tax authorities.
        


      
        
          
          

        

        
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      In
        the
        event such taxes are Recoverable Taxes and the Joint Venture Company does
        not
        collect tax from Intel Singapore or pay such taxes to the appropriate
        governmental entity on a timely basis, and is subsequently audited by any
        tax
        authority, liability of Intel Singapore will be limited to the tax assessment
        for such Recoverable Taxes with no reimbursement for penalty or interest
        charges
        or other amounts incurred in connection therewith. Notwithstanding anything
        herein to the contrary, taxes other than Recoverable Taxes shall not be
        reimbursed by Intel Singapore, and each Party is responsible for its own
        respective income taxes (including franchise and other taxes based on net
        income
        or a variation thereof), taxes based upon gross revenues or receipts, and
        taxes
        with respect to general overhead, including but not limited to business and
        occupation taxes, and such taxes shall not be Recoverable Taxes.

       

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

      


      4.8  Invoicing;
        Payment.
        The
        Joint Venture Company shall invoice Intel Singapore on a monthly basis for
        the
        Price of the Products provided and all overhead, interest, general and
        administrative and other costs, including all start-up costs for Facilities
        which shall be split between the Members based on Sharing Interest. All amounts
        owed under this Agreement are stated, calculated and shall be paid in United
        States Dollars. Except as otherwise specified in this Agreement, Intel Singapore
        shall pay the Joint Venture Company for the amounts due, owing, and duly
        invoiced under this Agreement within [***]
        ([***])
        days
        following delivery of an invoice therefor to such place as the Joint Venture
        Company may reasonably direct therein.

      


      4.9  Payment
        to Subcontractors.
        The
        Joint Venture Company shall be responsible for and shall hold Intel Singapore
        harmless for any and all payments to its vendors or subcontractors utilized
        in
        the performance of this Agreement.

      


      4.10  Delivery,
        Title and Risk of Loss.
        The
        Joint Venture Company, in order to ensure timely and complete shipment of
        Products to Intel Singapore, shall arrange for and pay for all shipping charges,
        insurance, taxes, customs charges and any fees and duties in connection with
        such shipment. The Joint Venture Company shall hold title to and risk of
        loss of
        Products
        under
        this Agreement, including WIP held by subcontractors,
        until
        tender to the carrier, at which time title and risk of loss and damage to
        Products shall transfer to Intel Singapore. 

      


      4.11  Packaging.
        All
        shipment packaging of the Products shall be in conformance with the
        Specifications, the Intel Singapore’s reasonable instructions, and general
        industry standards, and shall be resistant to damage that may occur during
        transportation. Marking on the packages shall be made by the Joint Venture
        Company in accordance with Intel Singapore’s reasonable instructions.


      


      4.12  Shipment.
        All
        Products shall be prepared for shipment in a manner that: (i) follows good
        commercial practice; (ii) is acceptable to common carriers for shipment at
        the
        lowest rate; and (iii) is adequate to ensure safe arrival. The Joint Venture
        Company shall mark all containers


      
        
          
          

        

        
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      with
        necessary lifting, handling, and shipping information, Purchase Order number,
        date of shipment, and the names of Intel Singapore and the applicable customer.
        If no instructions are given, the Joint Venture Company shall select the
        most
        price effective carrier, given the time constraints known to the Joint Venture
        Company. At Intel Singapore’s request, the Joint Venture will provide
        drop-shipment of Products to Intel Singapore’s customers. Such shipment service
        may be provided by a subcontractor to the Joint Venture Company provided
        that
        title remains with the Joint Venture Company and then passes to Intel Singapore
        upon tender to the carrier. 

      


      4.13  Customs
        Clearance.
        Upon
        Intel Singapore’s request, the Joint Venture Company will promptly provide Intel
        Singapore with a statement of origin for all Products and with applicable
        customs documentation for Products wholly or partially manufactured outside
        of
        the country of import.

       

      ARTICLE
        5

      VISITATIONS,
        AUDITS 

       

      5.1  Visits.
        The
        Joint Venture Company will support Intel Singapore’s reasonable requests for
        visits to Facilities and meetings for the purpose of reviewing performance
        of
        production of Products
        including requests for further information and assistance in troubleshooting
        performance issues.
        Such
        requests shall be reasonably granted by the Joint Venture Company so long
        as
        such visits and meetings do not unduly interfere with the Joint Venture
        Company’s operations and business affairs. 

      


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

       

      5.3  Financial
        Audit.
        Intel
        Singapore reserves the right to have the Joint Venture Company’s books and
        records related to the Pricing hereunder inspected and audited not more than
        [***]
        during
        any Fiscal Year to ensure compliance with Schedule
        4.8
        of this
        Agreement in regards to Pricing. Such audit will be performed by an independent
        third party auditor acceptable to both Parties at Intel Singapore’s expense.
        Intel Singapore shall provide [***]
        ([***])
        days
        advance written notice to the Joint Venture Company of its desire to initiate
        an
        audit and the audit shall be scheduled so that it does not adversely impact
        or
        interrupt the Joint Venture Company’s business operations. If the audit reveals
        any material discrepancies, the Joint Venture Company or Intel Singapore
        shall
        reimburse the other, as applicable, for any material discrepancies within
        [***]
        ([***])
        days
        after completion of the audit. The results of such audit shall be kept
        confidential by the auditor and only the discrepancies shall be reported
        to the
        Parties, and be limited to discrepancies identified by the audit.
        Notwithstanding the foregoing, any auditor reports shall not disclose any
        Joint
        Venture Company pricing or terms of purchase for any purchases of materials
        or
        equipment hereunder to Intel Singapore, absent written agreement from the
        Members’ respective legal counsel. If any audit reveals a material discrepancy,
        Intel Singapore may increase the frequency of such audits to [***]
        for the
        subsequent [***]
        ([***])
        month
        period.


      
        
          
          

        

        
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      5.4  Subcontractor;
        Vendor Visits.
        The
        Joint Venture Company
        will use
        commercially reasonable efforts to ensure that all
        contracts with vendors and subcontractors will provide the Joint Venture
        Company
        and Intel Singapore with the right to visit and audit rights similar to those
        set forth in this Article
        5.
        

       

      ARTICLE
        6

      WARRANTY;
        HAZARDOUS MATERIALS; DISCLAIMER 

       

      6.1  Product
        Warranty.
        The
        Joint Venture Company makes the following warranties regarding Products
        furnished hereunder, which warranties shall survive any delivery, inspection,
        acceptance, payment or resale of the Products:

      


      (a)  Products
        conform to all agreed Specifications;

      


      (b)  Products
        are free from defects in materials or workmanship; and

      


      (c)  The
        Joint
        Venture Company has the necessary right, title, and interest to provide
Products
        to the Joint Venture Company
        and the
        Products will be free of liens and encumbrances, not including any implied
        warranty of non-infringement.

      


      6.2  Warranty
        Claims.
        Within
        a period of time, not to exceed the lesser of the actual warranty period
        applicable to the end customer for the NAND Flash Memory Product at issue
        or
        eighteen (18) months from the date of the delivery of the Products at issue
        to
        the Intel Singapore (“Warranty
        Claim Period”),
        Intel
        Singapore shall notify the Joint Venture Company if it believes that any
        Product
        does not meet the Product warranty set forth in Section
        6.1.
        Intel
        Singapore shall return such Products to the Joint Venture Company as
        directed
        by the Joint Venture Company. If a Product is determined not to be in compliance
        with such warranty, then Intel Singapore shall be entitled to return such
        Product and cause the Joint Venture Company to replace at the Joint Venture
        Company’s expense or, at Intel Singapore’s option, receive a credit or refund of
        any monies paid to the Joint Venture Company in respect of such Product,
        save
        that such credit or refund shall in no event exceed on a per-unit basis the
        final price paid for the Product under this Agreement. The basis for such
        refund
        or credit shall be the Price on a per-unit basis in the month in which the
        returned Product was invoiced to the Intel
        Singapore. THE FOREGOING REMEDY IS INTEL SINGAPORE’S SOLE AND EXCLUSIVE REMEDY
        FOR THE JOINT VENTURE COMPANY’S FAILURE TO MEET ANY WARRANTY OF SECTION
        6.1.

       

      6.3  Inspections.
        Members
        may, upon reasonable advance written notice, request samples of Products
        (including WIP) during production for purposes of determining compliance
        with
        the requirements and Specification(s) hereunder, provided that the provision
        of
        such samples shall not materially impact the Joint Venture Company’s performance
        to the Operating Plan or its ability to meet delivery requirements under
        any
        accepted Purchase Order. Any samples provided hereunder shall be: (i) limited
        in
        quantity to the amount reasonably necessary for the purposes hereunder; (ii)
        included in the pricing; and (iii) included in any performance requirements,
        if
        any. The Joint Venture Company shall provide reasonable assistance for the
        safety and convenience of Intel Singapore in obtaining the samples in such
        manner as shall not unreasonably hinder or delay the Joint Venture Company’s
        performance. 


      
        
          
          

        

        
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      6.4  Hazardous
        Materials.
        

      


      (a)  If
        Products provided hereunder include Hazardous Materials as determined in
        accordance with Applicable Law, the
        Joint
        Venture Company represents and
        warrants
        that the
        Joint Venture Company and the Joint Venture Company’s employees,
        agents,
        and subcontractors
        actually
working
        with
        such
        materials in providing the Products hereunder to Intel Singapore shall
        be
        trained in accordance with Applicable Law regarding
        the
        nature of and hazards associated with the handling, transportation, and use
        of
        such Hazardous Materials, as applicable to the Joint Venture Company.


      


      (b)  To
        the
        extent required by Applicable
        Law, the
        Joint Venture Company shall provide Intel Singapore with Material Safety
        Data
        Sheets (MSDS) either prior to or accompanying any delivery of Products to
        Intel
        Singapore.

      


      6.5  Disclaimer.
        EXCEPT
        AS OTHERWISE EXPRESSLY PROVIDED IN THIS ARTICLE
        6,
        THE
        JOINT VENTURE COMPANY HEREBY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND
        WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
        WARRANTIES OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR
        PURPOSE, NON-INFRINGEMENT OR OTHERWISE, WITH RESPECT TO THE PRODUCTS
        PROVIDED UNDER THIS AGREEMENT. THE WARRANTIES WILL NOT APPLY TO:
        (i) ANY
        WARRANTY CLAIM OR ISSUE, OR DEFECT TO THE EXTENT CAUSED BY TECHNICAL MATERIALS
        PROVIDED OR SPECIFIED BY, THROUGH OR ON BEHALF OF THE MEMBERS OR COMMITTEES
        OF
        MEMBERS, INCLUDING BUT NOT LIMITED TO PRODUCT DESIGNS, TECHNOLOGY AND TEST
        PROGRAMS; OR (ii) THE WARRANTIES WILL NOT APPLY TO
        ANY OF
        THE PRODUCTS THAT HAVE BEEN REPAIRED OR ALTERED, EXCEPT AS AUTHORIZED BY
        THE
        JOINT VENTURE COMPANY, OR WHICH ARE SUBJECTED
        TO
        MISUSE, NEGLIGENCE, ACCIDENT OR ABUSE.

       

      ARTICLE
        7

      CONFIDENTIALITY;
        OWNERSHIP

      


      7.1  Protection
        and Use of Confidential Information.
        All
        information provided, disclosed or obtained in the performance of any of
        the
        Parties’ activities under this Agreement shall be subject to all applicable
        provisions of the Confidentiality Agreement. Furthermore, the terms and
        conditions of this Agreement shall be considered “Confidential
        Information”
under
        the Confidentiality Agreement for which each Party is considered a “Receiving
        Party”
under
        such agreement. To the extent there is a conflict between this Agreement
        and the
        Confidentiality Agreement, the terms of this Agreement shall
        control.

      


      7.2  Masks.
        Any
        masks produced pursuant to this Agreement will be based on Product designs
        owned
        by Intel and shall be treated as Confidential Information of Intel.

      


      7.3  Intellectual
        Property Ownership.
        Ownership of any intellectual property developed by the Joint Venture Company
        will be governed by the Omnibus IP Agreement.


      
        
          
          

        

        
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      ARTICLE
        8

      INDEMNIFICATION

      


      8.1  Mutual
        General Indemnity.
        Subject
        to Article
        9,
        each
        Party (“Indemnifying
        Party”)
        shall
        indemnify, defend and hold harmless the other Party (“Indemnified
        Party”)
        from
        and against any and all Indemnified Losses based on or attributable to any
        Third
        Party Claim or threatened Third Party Claim arising under this Agreement
        and as
        a result of the Indemnifying Party’s negligence, gross negligence or willful
        misconduct of the Indemnifying Party or any of its respective officers,
        directors, employees, agents or subcontractors. Notwithstanding the foregoing,
        this Section
        8.1
        shall
        not apply to any claims or losses based on or attributable to intellectual
        property infringement. 

       

      8.2  Indemnification
        Procedures.
        

       

      (a)  Promptly
        after the receipt by any Indemnified Party of a notice of any Third Party
        Claim
        that an Indemnified Party seeks to be indemnified under this Agreement, such
        Indemnified Party shall give written notice of such Third Party Claim to
        the
        Indemnifying Party, stating in reasonable detail the nature and basis of
        each
        allegation made in the Third Party Claim and the amount of potential Indemnified
        Losses with respect to each allegation, to the extent known, along with copies
        of the relevant documents received by the Indemnified Party evidencing the
        Third
        Party Claim and the basis for indemnification sought. Failure of the Indemnified
        Party to give such notice shall not relieve the Indemnifying Party from
        liability on account of this indemnification, except if and only to the extent
        that the Indemnifying Party is actually prejudiced by such failure or delay.
        Thereafter, the Indemnified Party shall deliver to the Indemnifying Party,
        promptly after the Indemnified Party’s receipt thereof, copies of all notices
        and documents (including court papers) received by the Indemnified Party
        relating to the Third Party Claim. The Indemnifying Party shall have the
        right
        to assume the defense of the Indemnified Party with respect to such Third
        Party
        Claim upon written notice to the Indemnified Party delivered within thirty
        (30)
        days after receipt of the particular notice from the Indemnified Party. So
        long
        as the Indemnifying Party has assumed the defense of the Third Party Claim
        in
        accordance herewith and notified the Indemnified Party in writing thereof,
        (i)
        the Indemnified Party may retain separate co-counsel at its sole cost and
        expense and participate in the defense of the Third Party Claim, it being
        understood that the Indemnifying Party shall pay all reasonable costs and
        expenses of counsel for the Indemnified Party after such time as the Indemnified
        Party has notified the Indemnifying Party of such Third Party Claim and prior
        to
        such time as the Indemnifying Party has notified the Indemnified Party that
        it
        has assumed the defense of such Third Party Claim, (ii) the Indemnified Party
        shall not file any papers or, other than in connection with a settlement
        of the
        Third Party Claim, consent to the entry of any judgment without the prior
        written consent of the Indemnifying Party (not to be unreasonably withheld,
        conditioned or delayed) and (iii) the Indemnifying Party will not consent
        to the
        entry of any judgment or enter into any settlement with respect to the Third
        Party Claim (other than a judgment or settlement that is solely for money
        damages and is accompanied by a release of all indemnifiable claims against
        the
        Indemnified Party) without the prior written consent of the Indemnified Party
        (not to be unreasonably withheld, conditioned or delayed). Whether or not
        the
        Indemnifying Party shall have assumed the defense of the Indemnified Party
        for a
        Third Party Claim, such Indemnifying Party shall not be obligated to indemnify
        and hold harmless the Indemnified Party hereunder for any consent to the
        entry
        of 

       


      
        
          
          

        

        
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      judgment
        or settlement entered into with respect to such Third Party Claim without
        the
        Indemnifying Party’s prior written consent, which consent shall not be
        unreasonably withheld, conditioned or delayed.

       

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

       

      (c)  Treatment
        of Indemnification Payments; Insurance Recoveries.
        Any
        indemnity payment under this Agreement shall be decreased by any amounts
        actually recovered by the Indemnified Party under third party insurance policies
        with respect to such Indemnified Losses (net of any premiums paid by such
        Indemnified Party under the relevant insurance policy), each Party agreeing
        (i)
        to use all reasonable efforts to recover all available insurance proceeds
        and
        (ii) to the extent that any indemnity payment under this Agreement has been
        paid
        by the Indemnifying Party to the Indemnified Party prior to the recovery
        by the
        Indemnified Party of such insurance proceeds, the amount of such insurance
        proceeds actually recovered by the Indemnified Party shall be promptly paid
        to
        the Indemnifying Party. 

       

      (d)  Certain
        Additional Procedures.
        The
        Indemnified Party shall cooperate and assist the Indemnifying Party in
        determining the validity of any Third Party Claim for indemnity by the
        Indemnified Party and in otherwise resolving such matters. The Indemnified
        Party
        shall cooperate in the defense by the Indemnifying Party of each Third Party
        Claim (and the Indemnified Party and the Indemnifying Party agree with respect
        to all such Third Party Claims that a common interest privilege agreement
        exists
        between them), including: (i) permitting the Indemnifying Party to discuss
        the
        Third Party Claim with such officers, employees, consultants and representatives
        of the Indemnified Party as the Indemnifying Party reasonably requests; (ii)
        providing to the Indemnifying Party copies of documents and samples of products
        as the Indemnifying Party reasonably requests in connection with defending
        such
        Third Party Claim; (iii) preserving all properties, books, records, papers,
        documents, plans, drawings, electronic mail and databases of the Joint Venture
        Company and relating to matters pertinent to the conduct of the Joint Venture
        Company under the Indemnified Party’s custody or control in accordance with such
        Party’s corporate documents retention policies, or longer to the extent
        reasonably requested by the Indemnifying Party; (iv) notifying the Indemnifying
        Party promptly of receipt by the Indemnified Party of any subpoena or other
        third party request for documents or interviews and testimony; (v) providing
        to
        the Indemnifying Party copies of any documents produced by the Indemnified
        Party
        in response to or compliance with any subpoena or other third party request
        for
        documents; and (vi) except to the extent inconsistent with the Indemnified
        Party’s obligations under applicable law and except to the extent that to do so
        would subject the Indemnified Party or its employees, agents or representatives
        to criminal or civil sanctions, unless ordered by a court to do otherwise,
        not
        producing documents to a third party until the Indemnifying Party has been
        provided a reasonable opportunity to review, copy and assert privileges covering
        such documents.

       

      ARTICLE
        9

      LIMITATION
        OF LIABILITY


      
        
          
          

        

        
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      9.1  Damages
        Limitation.
        SUBJECT
        TO SECTION
        9.4,
        IN NO
        EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
        CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES OR ANY PUNITIVE OR EXEMPLARY
        DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH
        DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER
        THEORY OF LIABILITY, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY
        OF
        SUCH DAMAGES. 

       

      9.2  THE
        PARTIES AGREE THAT TO THE EXTENT A CLAIM ARISES UNDER THIS AGREEMENT, THE
        CLAIM
        SHALL BE BROUGHT UNDER THIS AGREEMENT.

       

      9.3  Damages
        Cap.
        SUBJECT
        TO SECTION
        9.4,
        IF
        EITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY MATTER ARISING FROM
        THIS
        AGREEMENT, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT, WARRANTY, EQUITY,
        NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION OR CLAIM
        ARISING
        FROM AN ACT OR OMISSION, NEGLIGENT OR OTHERWISE, OF THE LIABLE PARTY), THE
        AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE PARTY WITH RESPECT TO ANY
        BREACH, PERFORMANCE, NONPERFORMANCE, ACT OR OMISSION HEREUNDER WILL NOT EXCEED
        THE LESSER OF THE ACTUAL DAMAGES ALLOWED HEREUNDER; OR (i) IN THE CASE OF
        THE
        JOINT VENTURE COMPANY BRINGING A CLAIM FOR TEN MILLION DOLLARS ($10,000,000)
        PER
        CLAIM OR SERIES OF RELATED CLAIMS ARISING FROM THE SAME CAUSE; OR (ii) IN
        THE
        CASE OF PARENT BRINGING A CLAIM: (a) NON-CUSTOM PRODUCTS SOLD BY THE JOINT
        VENTURE COMPANY TO BOTH MEMBERS, TEN MILLION DOLLARS ($10,000,000) PER CLAIM
        OR
        SERIES OF RELATED CLAIMS ARISING FROM THE SAME CAUSE; OR (b) IN THE CASE
        OF
        CUSTOM PRODUCTS, THE AMOUNT OF DAMAGES, IF ANY, ACTUALLY RECOVERED BY THE
        JOINT
        VENTURE COMPANY FROM ANY THIRD PARTY RELATING TO THE PARENT’S CLAIM OR SERIES OF
        RELATED CLAIMS ARISING FROM THE SAME CAUSE.

      


      9.4  Exclusions
        and Mitigation.
        Section
        9.1
        and
Section
        9.3
        will not
        apply to either Party’s breach of Article
        7.
        Section
        9.3 will
        not
        apply to Intel Singapore’s failure to meet either an Under-loading charge
        under
        Section 4.1
        or a
        payment obligation which is due and payable under this Agreement. Each Party
        shall have a duty to use commercially reasonable efforts to mitigate damages
        for
        which the other Party is responsible.

      


      9.5  Losses. Except
        as
        provided under Section
        8.1,
        the
        Joint Venture Company and Intel Singapore each shall be responsible for Losses
        to their respective, tangible, personal or real property (whether owned or
        leased), and each Party agrees to look only to their own insurance arrangements
        with respect to such damages. The Joint Venture Company and Intel Singapore
        waive all rights to recover against each other, including each Party’s insurers’
subrogation rights, if any, for any loss or damage to their respective tangible
        personal property or real property (whether owned or leased) from any cause
        covered by insurance maintained by each of them, including their respective
        deductibles or self-insured retentions. Notwithstanding the foregoing, in
        the
        event of a loss hereunder involving a property, transit or crime event or
        occurrence that: (i) is 


      
        
          
          

        

        
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      insured
        under Intel Singapore’s insurance policies; (ii) a single insurance deductible
        and/or limits applies; and (iii) the loss event or occurrence affects the
        insured ownership or insured legal interests of both Parties, then the Parties
        shall share the cost of the deductible and share the limits in proportion
        to
        each Party’s insured ownership or legal interests in relative proportion to the
        total insured ownership or legal interests of the Parties.

       

      ARTICLE
        10

      TERM
        AND TERMINATION;

      SUPPLY
        OBLIGATIONS FOLLOWING TRIGGERING EVENT

      


      10.1  Term.
        The
        term of this Agreement commences on the Effective Date and continues in effect
        until the first to occur of (a) the Liquidation Date or (b) a Minority Closing,
        unless terminated sooner solely by mutual agreement (such period of time,
        the
“Term”).

      


      10.2  Termination.
        This
        Agreement may not be terminated for any reason, including breach by a Party,
        before termination pursuant to Section
        10.1.

      


      10.3  Masks.
        On
        the
        Liquidation Date, the Joint Venture Company shall immediately transfer
        possession of production masks possessed by it at each Facility to the Member
        that then owns that Facility as of the Liquidation Date.

      


      10.4  Survival.
        Termination of this Agreement shall not affect any of the Parties’ respective
        rights accrued or obligations owed before termination, including any rights
        or
        obligations of the Parties in respect of any accepted Purchase Orders existing
        at the time of termination. In addition, the following shall survive termination
        of this Agreement for any reason: Sections
        2.12, 6.2 and 6.5,
        and
Articles
        4, 7, 8, 9, 10 and 11.
        

      


      10.5  Supply
        Obligations Following Triggering Event.
        Upon
        the occurrence of a Triggering Event any supply obligations of the Parties
        will
        be as set forth in Article
        13
        of the
        IMFS Agreement.

      


      ARTICLE
        11

      MISCELLANEOUS

      


      11.1  Force
        Majeure Events.
        The
        Parties shall be excused from any failure to perform any obligation hereunder
        to
        the extent such failure is caused by a Force Majeure Event. A Force Majeure
        Event shall operate to excuse a failure to perform an obligation hereunder
        only
        for the period of time during which the Force Majeure Event renders performance
        impossible or infeasible and only if the Party asserting Force Majeure as
        an
        excuse for its failure to perform has provided written notice to the other
        Party
        specifying the obligation to be excused and describing the events or conditions
        constituting the Force Majeure Event. As used herein, “Force
        Majeure Event”
means
        the occurrence of an event or circumstance beyond the reasonable control
        of the
        party failing to perform, including, without limitation: (a) explosions,
        fires,
        flood, earthquakes, catastrophic weather conditions, or other elements of
        nature
        or acts of God; (b) acts of war (declared or undeclared), acts of terrorism,
        insurrection, riots, civil disorders, rebellion or sabotage; (c) acts of
        federal, state, local or foreign governmental authorities or courts; (d)
        labor



      
        
          
          

        

        
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      disputes,
        lockouts, strikes or other industrial action, whether direct or indirect
        and
        whether lawful or unlawful; (e) failures or fluctuations in electrical power
        or
        telecommunications service or equipment; and (f) delays caused by the other
        Party’s nonperformance hereunder.

      


      11.2  Specific
        Performance.
        The
        Parties agree that irreparable damage will result if this Agreement is not
        performed in accordance with its terms, and the Parties agree that any damages
        available at law for a breach of this Agreement would not be an adequate
        remedy.
        Therefore, the provisions hereof and the obligations of the Parties hereunder
        shall be enforceable in a court of equity, or other tribunal with jurisdiction,
        by a decree of specific performance, and appropriate preliminary or permanent
        injunctive relief may be applied for and granted in connection therewith.
        Such
        remedies and all other remedies provided for in this Agreement shall, however,
        be cumulative and not exclusive and shall be in addition to any other remedies
        that a Party may have under this Agreement. 

      


      11.3  Assignment.
        This
        Agreement shall be binding upon and inure to the benefit of the permitted
        successors and assigns of each Party hereto. Neither this Agreement nor any
        right or obligation hereunder may be assigned or delegated by either Party
        in
        whole or in part to any other Person, other than a Wholly-Owned Subsidiary
        of
        such Party, without the prior written consent of the non-assigning Party.
        Any
        purported assignment in violation of the provisions of this Section
        11.3
        shall be
        null and void and have no effect.

      


      11.4  Compliance
        with Laws and Regulations.
        Each of
        the Parties shall comply with, and shall use reasonable efforts to require
        that
        its respective subcontractors comply with, Applicable Laws relating to this
        Agreement and the performance of a Party’s rights hereunder.

      


      11.5  Notice.
        All
        notices and other communications hereunder shall be in writing and shall
        be
        deemed given upon (a) a transmitter’s confirmation of a receipt of a facsimile
        transmission, (b) confirmed delivery by a standard overnight carrier or when
        delivered by hand, (c) the expiration of five (5) Business Days after the
        day
        when mailed in the United States by certified or registered mail, postage
        prepaid, or (d) delivery in Person, addressed at the following addresses
        (or at
        such other address for a party as shall be specified by like
        notice):

      


      In
        the
        case of the IM Flash Singapore, LLP:

      


      
        	
                IM
                  Flash Singapore, LLP

                c/o
                  Allen & Gledhill

                One
                  Marina Boulevard #28-00

                Singapore
                  018989

              
	
                Attention:
                  Lee Kim Shin / Oh Hsiu Hau

              
	
                Facsimile
                  Number: +65 6327 3800

              
	
                 

                With
                  a mandatory copy to:

              
	 
	
                Micron
                  Technology, Inc.

              
	
                8000
                  S. Federal Way

                Boise,
                  Idaho 83716

              


      

       

      
        
          
          

        

        
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            15
            -

          
            

          

        

        
          
          

        

      

      
        	
                Attention:
                  General Counsel

              
	
                Facsimile
                  Number: (208) 368-4540

                 

              
	
                In
                  the case of Intel Singapore:

              
	 
	
                Intel
                  Technology Asia Pte Ltd

                #06-01/02
                  StarHub Centre

                Singapore
                  229469

                Attention:
                  Intel Legal Department

                Facsimile:
                  +65 62131018

              
	
                 

                With
                  a mandatory copy to:

                 

              
	
                Intel
                  Corporation

                2200
                  Mission College Blvd. 

                Mail-Stop
                  SC4-203

                Santa
                  Clara, CA 95054

              
	
                Attention:
                  General Counsel

              
	
                Facsimile
                  Number: (408)
                  653-8050

                 

                and

                 

                Intel
                  Corporation

                2200
                  Mission College Blvd.

                Mail-Stop
                  SC4-203

                Santa
                  Clara, CA 95054

                Attention:
                  Treasurer

                Facsimile
                  Number: (408) 765-4793

              


      

      


      Either
        Party may change its address for notices upon giving ten (10) days’ written
        notice of such change to the other Party in the manner provided
        above.

      


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

      


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


      
        
          
          

        

        
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      faith
        appropriate modifications to this Agreement to reflect those changes that
        are
        required by Applicable Law.

      


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

      


      11.9  Amendment.
        This
        Agreement may not be modified or amended except by a written instrument executed
        by or on behalf of each of the Parties to this Agreement.

      


      11.10  Entire
        Agreement.
        This
        Agreement and the applicable provisions of the Confidentiality Agreement,
        which
        are incorporated herein and made a part hereof, together with the Exhibits
        and
        Schedules hereto and the agreements and instruments expressly provided for
        herein, constitute the entire agreement of the Parties hereto with respect
        to
        the subject matter hereof and supersede all prior agreements and understandings,
        oral and written, between the Parties hereto with respect to the subject
        matter
        hereof.

      


      11.11  Choice
        of Law.
        This
        Agreement shall be construed and enforced in accordance with and governed
        by the
        laws of the Republic of Singapore, without giving effect to the principles
        of
        conflict of laws thereof.

      


      11.12  Jurisdiction;
        Venue.
        Any
        suit, action or proceeding seeking to enforce any provision of, or based
        on any
        matter arising out of or in connection with, this Agreement shall be brought
        in
        a state or federal court located in Delaware and each of the Parties to this
        Agreement hereby consents and submits to the exclusive jurisdiction of such
        courts (and of the appropriate appellate courts therefrom) in any such suit,
        action or proceeding and irrevocably waives, to the fullest extent permitted
        by
        Applicable Law, any objection which it may now or hereafter have to the laying
        of the venue of any such suit, action or proceeding in any such court or
        that
        any such suit, action or proceeding which is brought in any such court has
        been
        brought in an inconvenient forum. Process in any such suit, action or proceeding
        may be served on any party anywhere in the world, whether within or without
        the
        jurisdiction of any such court.

      


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

      


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

      


      11.15  Insurance.
        Without
        limiting or qualifying the Joint Venture Company’s liabilities, obligations, or
        indemnities otherwise assumed by the Joint Venture Company pursuant to this
        Agreement, the Joint Venture Company shall maintain, at no charge to Intel
        Singapore, with companies acceptable to Intel Singapore:

      


      	(a)  	
               
                Commercial General Liability with limits of liability not less than
                $[***] 

            



      
        
          
          

        

        
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      per
        occurrence and including liability coverage for bodily injury or property
        damage
        (1) assumed in a contract or agreement pertaining to The Joint Venture Company’s
        business and (2) arising out of The Joint Venture Company’s products, Services,
        or work. The Joint Venture Company’s insurance shall be primary with respect to
        liabilities assumed by The Joint Venture Company in this Agreement to the
        extent
        such liabilities are the subject of the Joint Venture Company’s insurance, and
        any applicable insurance maintained by Intel Singapore shall be excess and
        non-contributing. The above coverage shall name Intel Singapore as additional
        insured as respects The Joint Venture Company’s work or services provided to or
        on behalf of Intel Singapore.

      


      (b)  Automobile
        Liability Insurance with limits of liability not less than $[***]
        per
        accident for bodily injury or property damage. 

      


      (c)  Statutory
        Workers’ Compensation coverage, including a Broad Form All States Endorsement in
        the amount required by law, and Employers’ Liability Insurance in the amount of
        $[***]
        per
        occurrence. Such insurance shall include mutual insurer’s waiver of
        subrogation.

      


      [Signature
        page follows]


      


      
        
          
          

        

        
          -
            18
            -

          
            

          

        

        
          
          

        

      

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

      


      
        	
                INTEL
                  TECHNOLOGY ASIA
                  PTE LTD

                 

              	
                IM
                  FLASH SINGAPORE, LLP

              
	
                By:___/s/
                  Ravi Jacob_________________

                 

              	
                By:___/s/
                  Jen Kwong Hwa             

              
	
                Name:___
                  Ravi Jacob                 

                 

              	
                Name:___Jen
                  Kwong Hwa            
                   

              
	
                Title:___Treasurer                   


              	
                Title:___Interim
                  Authorized Signatory    
                  

              


      

      


      


      THIS
        IS THE SIGNATURE PAGE FOR THE SUPPLY AGREEMENT ENTERED INTO BY AND BETWEEN
        INTEL
        TECHNOLOGY ASIA
        PTE
        LTD AND IM
        FLASH SINGAPORE, LLP


      
        
          
            


          

          
          

        

        
          
          

          
            

          

        

        
          
          

          
          

        

      



      EXHIBIT
        A

      DEFINITIONS

      


      “Affiliate”
means,
        with respect to any specified Person, a Person that directly or indirectly,
        including through one or more intermediaries, controls, or is controlled
        by, or
        is under common control with, the Person specified.

      


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

      


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

      


      “Approved
        Business Plan” shall
        have the meaning set forth in the IMFS Agreement.

      


      “Assembly
        Outs”
shall
        mean a Product for which the Assembly Services have been completed and meets
        all
        of the Assembly Specification applicable at such time and is not Secondary
        Silicon or Rejects.

      


      “Business
        Continuity Plan”
shall
        have the meaning set forth in Section
        2.10
        hereof.

      


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

      


      “Capacity” means
        the
        rate of output (defined in terms of units per time period), at a particular
        point in time, at which a particular Facility or set of Facilities of the
        Joint
        Venture Company (or of a third party on the Joint Venture Company’s behalf) is
        capable of producing such units.

      


      “Confidential
        Information”
shall
        have the meaning set forth in Section
        7.1
        hereof.

      


      “Confidentiality
        Agreement”
means
        that Amended and Restated Mutual Confidentiality Agreement by and among the
        Joint Venture Company, Intel, Micron, Intel Singapore, Micron Singapore and
        IMFT
        dated as of the Effective Date.

      


      “Custom
        Products”
shall
        have the meaning set forth in the Product Designs Committee
        Agreement.

      


      “Cycle-Time”
means
        the time required to process a unit through a portion of the manufacturing
        process (e.g., fab, assembly, or final test) or through the manufacturing
        process as a whole.

      


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

      


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


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


      “Excursion”
means
        an occurrence, either during production or after customer delivery that is
        outside normal historical behavior as established by both Parties in writing
        in
        the applicable Specifications which may impact performance, Quality and
        Reliability, or customer delivery commitments for Probed Wafers, NAND Flash
        Memory Product or Known Good Die.

      


      “Facilities”
shall
        mean all of the Joint Venture Company’s facilities at which it may perform
        manufacturing, assembly or test services, including subcontractors.

      


      “Fiscal
        Quarter”
means
        any of the four financial accounting quarters within the Joint Venture Company’s
        Fiscal Year.

       

       

      “Fiscal
        Month”
means
        any of the twelve financial accounting months within the Joint Venture Company’s
        Fiscal Year.

       

       

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

       

      “Flash
        Memory Integrated Circuit”
shall
        have the meaning set forth in the IMFS Agreement. 

      


      “Force
        Majeure Event”
shall
        have the meaning set forth in Section
        11.1.
        

      


      “GAAP”
means
        United States generally accepted accounting principles as in effect from
        time to
        time.

       

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

      


      “Hazardous
        Materials”
means
        dangerous goods, chemicals, contaminants, substances, pollutants or any other
        materials that are defined as hazardous by relevant local, state, national,
        or
        international law, regulations and standards.

       

      “IMFS
        Agreement”
means
        the Limited Liability Partnership Agreement of the Joint Venture Company
        by and
        between Intel Singapore and Micron Singapore dated as of the Effective
        Date.

       

      “IMFT”
means
        IM Flash Technologies, LLC, a Delaware limited liability company.

       

      “Indemnified
        Party”
        shall
        mean any of the following to the extent entitled to seek indemnification
        under
        this Agreement: Intel Singapore, the Joint Venture Company, and their respective
        Affiliates, officers, directors, employees, agents, assigns and
        successors.

       

      “Indemnified
        Losses” shall
        mean all direct, out-of-pocket liabilities, damages, losses, costs and expenses
        of any nature incurred by an Indemnified Party, including reasonable attorneys’
fees and consultants’ fees, and all damages, fines, penalties and judgments
        awarded or


      
        
          
          

        

        
          Exhibit
            A -
            2

          
            

          

        

        
          
          

        

      

      entered
        against an Indemnified Party, but specifically excluding any special,
        consequential or other types of indirect damages.

       

      “Indemnifying
        Party”
shall
        mean the Party owing a duty of indemnification to another Party with respect
        to
        a particular Third Party Claim.

       

      “Initial
        Business Plan”
shall
        have the meaning set forth in the IMFS Agreement.

      


      “Intel”
means
        Intel Corporation, a Delaware corporation.

      


      “Intel
        Singapore”
means
        Intel Technology
        Asia Pte Ltd,
        a
        Singapore private limited company.

      


      “Joint
        Development Program Agreement”
shall
        mean the Joint Development Program Agreement by and between Micron and Intel
        dated January 6, 2006.

      


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

      


      “Joint
        Venture Documents”
shall
        have the meaning set forth in the IMFS Agreement.

      


      “Known
        Good Die”
means
        a
        raw wafer that has been processed to the point of containing functional and/or
        operational NAND Flash Memory Integrated Circuits that has undergone Probe
        Testing (a.k.a. “Sort” procedure), meeting predefined performance and quality
        criteria and singulated to individual semiconductor die. Die will have been
        fully tested but will not been assembled into final packaging or undergone
        final
        product testing.

      “Liquidation
        Date”
shall
        have the meaning set forth in the IMFS Agreement.

       

      “Losses”
shall
        mean, collectively, any and all insurable liabilities, damages, losses, costs
        and expenses (including reasonable attorneys’ and consultants’ fees and
        expenses).

      


      “Manufacturing
        Committee”
shall
        have the meaning set forth in the Omnibus Agreement.

      


      “Members”
means
        Micron Singapore and Intel Singapore.

      


      “Micron”
shall
        mean Micron Technology, Inc., a Delaware Company.

      


      “Micron
        Singapore”
shall
        mean Micron Semiconductor Asia Pte. Ltd., a Singapore private limited
        company.

      


      “Minority
        Closing” shall
        have the meaning set forth in the IMFS Agreement. 

      


      “Modified
        GAAP”
shall
        have the meaning set forth in the IMFS Agreement.

      


      “NAND
        Flash Memory Integrated Circuit”
        means
        a
        Flash Memory Integrated Circuit,


      
        
          
          

        

        
          Exhibit
            A -
            3

          
            

          

        

        
          
          

        

      


      in
        the
        memory cells included in the Flash Memory Integrated Circuit are arranged
        in
        groups of serially connected memory cells (each such group of serially connected
        memory cells called a “string”) in which the drain of each memory cell of a
        string (other than the first memory cell in the string) is connected in series
        to the source of another memory cell in such string, the gate of each memory
        cell in such string is directly accessible, and the drain of the uppermost
        bit
        of such string is coupled to the bitline of the memory array.

      


      “NAND
        Flash Memory Product”
shall
        have the meaning set forth in the IMFS Agreement.

       

      “NAND
        Flash Memory Wafer”
        means a
        raw wafer that has been processed to the point of containing NAND Flash Memory
        Integrated Circuits organized in multiple semiconductor die and that has
        undergone Probe Testing, but before singulation of said die into individual
        semiconductor die.

      


      “Omnibus
        Agreement”
shall
        mean the Omnibus Agreement by and between Intel and Micron dated as of the
        Effective Date.

      


      “Omnibus
        IP Agreement”
shall
        mean the Omnibus IP Agreement by and among Micron,
        Micron Singapore, Intel, Intel Singapore, the Joint Venture Company and
        IMFT
        dated as
        of the Effective Date.

       

      “Operating
        Plan”
means
        the Manufacturing Plan, Assembly Plan and Testing Plan developed pursuant
        to the
        Definitions in the IMFS Agreement.

      


      “Optional
        Purchase Agreement”
shall
        mean the Optional Purchase Agreement by and between Micron and Intel dated
        January 6, 2006, as amended. 

      


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

      


      “Performance
        Criteria”
        means
        [***].

      


      “Person”
shall
        have the meaning set forth in the IMFS Agreement.

       

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

      


      “Price”
or
        “Pricing”
means
        the calculation set forth on Schedule
        4.8
        hereof.


      


      “Prime
        Wafer”
means
        the raw silicon wafers required, on a product-by-product basis, for the
        manufacturer. 

      


      “Probe
        Testing” means
        testing, using a wafer test program as set forth in the applicable
        Specifications, of a wafer that has completed all processing steps deemed
        necessary to complete the creation of the desired NAND Flash Memory Integrated
        Circuits in the die on such wafer, the purpose of which test is to determine
        how
        many and which of the die meet the applicable criteria for such die set forth
        in
        the Specifications.


      
        
          
          

        

        
          Exhibit
            A -
            4

          
            

          

        

        
          
          

        

      


      “Probed
        Wafer”
means
        a
        Prime Wafer that has been processed to the point of containing NAND Flash
        Memory
        Integrated Circuits organized in multiple semiconductor die and that has
        undergone Probe Testing, but before singulation of said die into individual
        semiconductor dice.

      


      “Products”
means
        a
        Probed Wafer, Known Good Die, or NAND Flash Memory Product, or such other
        products that are manufactured by the Joint Venture Company under Section
        2.2
        hereof.

       

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

      


      “Purchase
        Order”
shall
        have the meaning set forth in Section
        4.3
        hereof.

       

      “Quality
        and Reliability”
or
        “Q&R” means
        building and sustaining relationships which assess, anticipate, and fulfill
        the
        quality and reliability standards as set forth in the Specification or Operating
        Plan for Products.

       

      “Receiving
        Party”
shall
        have the meaning set forth in Section
        7.1
        hereof.

       

      “Recoverable
        Taxes”
shall
        have the meaning set forth in Section
        4.7
        hereof.


      


      “Secondary
        Silicon”
shall
        mean: i) a Prime Wafer that has been processed to the point of containing
        NAND
        Flash Memory Integrated Circuits organized in multiple semiconductor die
        and
        that has undergone Probe Testing would otherwise constitute a Probed Wafer
        but
        for failure to achieve qualification; or (ii) singulated and/or packaged
        die
        that would otherwise constitute Assembly Outs or Test Outs but for failure
        to
        achieve qualification; and otherwise conform to the applicable Secondary
        Silicon
        Specification.

      


        “Semiconductor
        Manufacturing Technology”
shall
        have the meaning set forth in the Omnibus IP Agreement.

      


      “Sharing
        Interest”
shall
        have the meaning set forth in the IMFS Agreement.

       

      “Specifications”
means
        those specifications used to describe, characterize, and define the quality
        and
        performance of NAND Flash Memory Products and Known Good Die, including any
        interim performance specifications at Probe Testing or other testing, as
        such
        specifications may be determined from time to time by the Joint Venture
        Company.

       

      “Subsidiary” shall
        have the meaning set forth in the IMFS Agreement.

      


      “Technology
        License Agreement”
shall
        mean the Technology License Agreement by and among Micron, Intel and IMFT
        dated
        January 6, 2006, as amended.

       

      “Term”
shall
        have the meaning set forth in Section
        10.1
        hereof.


      
        
          
          

        

        
          Exhibit
            A -
            5

          
            

          

        

        
          
          

        

      


       

      “Test
        Outs” shall
        mean a Product Candidate for which Testing Services have been completed and
        meets all of the Testing Specification applicable at such time and is not
        Secondary Silicon or Rejects.

       

      “Third
        Party Claim”
        shall
        mean any claim, demand, action, suit or proceeding, and any actual or threatened
        lawsuit, complaint, cross-complaint or counter-complaint, arbitration or
        other
        legal or arbitral proceeding of any nature, brought in any court, tribunal
        or
        judicial forum anywhere in the world, regardless of the manner in which such
        proceeding is captioned or styled, by any Person other than Intel Singapore,
        the
        Joint Venture Company and Affiliates of the foregoing, against an Indemnified
        Party, in each case alleging entitlement to any Indemnified Losses pursuant
        to
        any indemnification obligation under this Agreement.

       

      


      “Triggering
        Event” shall
        have the meaning set forth in the IMFS Agreement. 

       

      “Under-loading”
shall
        have the meaning set forth in Section
        4.1.

       

      “Wafer
        Start”
shall
        mean the initiation of manufacturing services with respect to a Prime
        Wafer. 

      


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

       

      “Wholly-Owned
        Subsidiary”
shall
        have the meaning set forth in the IMFS Agreement.

      


      “WIP”
means
        work in process. This includes all wafers and Product in wafer fabrication,
        sort, assembly, and/or final test, including prime and secondary wafers,
        and all
        completed Product units not yet delivered to Intel Singapore.

       

      “Yield”
means
        anticipated output of Product from WIP at a particular point in time, including
        line yield, die yield, assembly yield and final testing yield.


      
        
          
            


          

          
          

        

        
          Exhibit
            A -
            6

          
            

          

        

        
          
          

          
          

        

      



      SCHEDULE
        4.8

      PRICE

      


      .