IN THE UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF DELAWARE ) ) ) ) ) ) )

In re Elpida Memory, Inc., Debtor in a Foreign Proceeding.

Chapter 15 Case No. 12-10947 (CSS)

Obj. Deadline: October 12, 2012 at 4:00 p.m. (EDT) Hearing Date: October 24, 2012 at 2:00 p.m. (EDT)

FOREIGN REPRESENTATIVES MOTION TO APPROVE SALE OF CERTAIN PATENTS TO RAMBUS INC. Mr. Yukio Sakamoto and Mr. Nobuaki Kobayashi, as foreign representatives (the Foreign Representatives) of Elpida Memory, Inc. (Elpida), a Japanese company that is the subject of reorganization proceedings under Japanese law (the Japan Proceeding) currently pending before the Tokyo District Court, Eighth Civil Division, hereby submit this motion (the Motion) pursuant to sections 363 and 1520 of title 11 of the United States Code (the Bankruptcy Code), Rules 2002 and 6004 of the Federal Rules of Bankruptcy Procedure (the Bankruptcy Rules), and Rule 6004-1 of the Local Rules for the United States Bankruptcy Court for the District of Delaware (the Local Rules), for approval of patent purchase agreement between Elpida and Rambus Inc., a corporation incorporated in the State of Delaware (Rambus). In support of the Motion, the Foreign Representatives respectfully state as follows: JURISDICTION AND VENUE 1. This Court has jurisdiction over this Motion under 28 U.S.C. 157 and 1334.

This matter is a core proceeding within the meaning of 28 U.S.C. 157(b)(2). Venue of this proceeding and this Motion in this District is proper under 28 U.S.C. 1410.

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BACKGROUND A. Elpidas Insolvency Cases 2. Elpida is a corporation organized and existing under the laws of Japan. It is a

leading manufacturer of dynamic random access memory (DRAM) integrated circuits, which are used to store data in many devices, including personal computers, servers, mobile devices, and digital consumer electronics. Its principal office is located at 2-1, Yaesu 2-chome, Chuo-ku, Tokyo 104-0028, Japan. 3. On February 27, 2012, Elpida filed a petition for commencement of corporation

reorganization proceedings under the Japan Corporate Reorganization Act (Kaisha Kosei Ho) (the JCRA) in Tokyo District Court, Eighth Civil Division (the Tokyo Court). 4. On March 14, 2012, the Tokyo Court-appointed supervisor of the Japan

Proceeding, pursuant to the general powers conferred upon him under the JCRA and by order of the Tokyo Court, issued a consent empowering Mr. Yukio Sakamoto, Elpidas President and Chief Executive Officer and a member of its Board of Directors, to file this chapter 15 case as the foreign representative of Elpida. 5. On March 19, 2012, Mr. Sakamoto filed a verified petition pursuant to sections

1504 and 1515 of the Bankruptcy Code, commencing this chapter 15 case. On April 24, 2012, the Court entered its Order Pursuant to 11 U.S.C. 105, 1504, 1515, 1517, 1520, and 1521 Recognizing Foreign Representatives and Foreign Main Proceeding (the Recognition Order) [Docket No. 65]. Pursuant to the Recognition Order, the Foreign Representatives are authorized to administer Elpidas assets and affairs in the United States.

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B.

The Business Relationship between Elpida and Rambus 6. Rambus is a leading licensing company with a broad portfolio of patents,

including patents for memory and chip interfaces. In exchange for royalty payments, Rambus licenses its patents to other companies for use in the manufacture of the licensees own products. Since 2000, Elpida has licensed certain patents from Rambus in connection with Elpidas manufacture of DRAM products, and has also granted a product-design license to Rambus to allow Rambus to use certain Elpida patents in connection with Rambuss proprietary product designs. Since January 1, 2010, Elpida and Rambus have been operating under a Memory Products Patent License Agreement (the License Agreement). 7. Pursuant to Article 61, Section 1 of the JCRA, upon commencement of the

Japanese Proceeding Elpida has the right to terminate the License Agreement in its business judgment. 1 As a result and in the ordinary course of their business operations, Elpida and Rambus entered into negotiations to amend the License Agreement. 8. As part of these negotiations, Rambus and Elpida discussed the sale of certain

patents to Rambus as part of a separate agreement. Because of the business relationship between Rambus and Elpida, and the ongoing negotiations regarding the amendment to the License Agreement, Elpida believed that Rambus was a logical purchaser of these patents and would be willing to provide more consideration for the patents than any other purchaser. The negotiations between Rambus and Elpida resulted in an amendment to the License Agreement which Elpida determined, in its business judgment, was in the best interest of its business and its creditors, and a separate Patent Purchase Agreement (the PPA). The PPA, generally, provides for the sale of

The right to terminate under Article 61, Section 1 of the JCRA is similar to a chapter 11 debtors right to reject an executory contract under section 365 of the Bankruptcy Code.

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certain Elpida patents, some of which are registered in the United States, to Rambus for xxxxxx xxxxxx.2 Under the PPA, Rambus will grant a royalty-free, perpetual license to Elpida for these patents, thus protecting Elpidas estate from patent infringement suits and permitting Elpida continued use of the technology. The PPA was approved by the Tokyo Court on August 10, 2012. A redacted copy of the PPA is attached hereto as Exhibit A.3 RELIEF REQUESTED 9. The sale and license-back of patents is common practice in the technology

industry; it is not uncommon in Elpidas business sector to sell and license back some or all of the patents covered by existing license agreements in the ordinary course. Moreover, the value of the patents that are being transferred to Rambus is de minimis when compared to the value of Elpidas entire patent portfolio as a whole. As a result, the Foreign Representatives believe that the PPA is in the ordinary course of Elpidas business, and therefore should not be subject to section 363 of the Bankruptcy Code. Nonetheless, the Foreign Representatives have determined that it is appropriate to seek approval of the PPA from this Court out of an abundance of caution. 10. By this Motion, the Foreign Representatives seek Court approval, under section

363 and 1520 of the Bankruptcy Code, of the PPA which provides for the sale of certain patents to Rambus. A proposed form of Order is attached hereto as Exhibit C. 11. Elpida believes, in its business judgment, that because the PPA was negotiated in

connection with the discussions regarding the amendment of the License Agreement, Rambus is

The consideration as provided in the PPA is for the entire portfolio of patents being sold. It is not possible to separate or carve-out the value of the United States registered patents. Due to the sensitive nature of patents and sale agreements, and as set forth more fully in the Foreign Representatives Motion for Authority to Redact this Motion and Exhibit A hereto, it is necessary that certain portions of this Motion as well as the PPA attached to this Motion be redacted to prevent Elpidas or Rambuss competitors from obtaining access to commercial information.
3

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providing Elpida with more consideration than any other purchaser will be able to provide, with less cost to the estate. Elpida and its advisors believe that xxxxxx xxxxxx. is fair and reasonable consideration for the patents and that entry into the PPA will improve Elpidas business relationship with a licensor of patented technology that is relevant to Elpidas ongoing business operations. SUMMARY OF AGREEMENTS AND LOCAL RULE 6004-1 REQUIREMENTS 12. Pursuant to Local Rule 6004-1(b)(i)-(ii), and as noted herein, the PPA is attached

hereto as Exhibit A, and a proposed form of Order is attached hereto as Exhibit C. Further, the Foreign Representatives do not believe that the appointment of a consumer privacy ombudsman is necessary in this instance, because the sale only involves patents and, in no way, implicates consumer privacy issues. See Local Rule 6004-1(b)(iii). In accordance with Local Rule 6004-1, the Foreign Representatives respectfully represent the following: 4 Sale to an Insider Agreements with Management Releases Private Sale / No Competitive Bidding Rambus is not an insider of Elpida within the meaning set forth in section 101(31) of the Bankruptcy Code. No agreements with management have been entered into in connection with the sale. The PPA does not contain any releases. Elpida has not solicited any competing bids for the sale of these assets due to the unique nature of the assets being sold, Elpidas belief that Rambus is providing more value to Elpida than any other purchaser will, and Elpidas belief that marketing of the assets will not materially increase the purchase price for the assets. Accordingly, Elpida has requested herein to undertake the sale without holding an auction.

These summaries are provided for informational purposes only, and to the extent there is a discrepancy between any summary and the terms of the applicable agreement, the terms of the agreement shall control.

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Effective Date Good Faith Deposit Interim Arrangements with Proposed Buyer Use of Proceeds Tax Exemption Record Retention

The PPA is effective upon approval of the PPA by the Tokyo Court and this Court. The PPA does not provide for a deposit. Rambus and Elpida have not entered into and are not entering into any interim arrangement regarding the sale of the patents set forth in the PPA. Elpida intends to use the proceeds to pay its administrative claim obligations, which will inure to the benefit of its creditors. Section 1146 of the Bankruptcy Code is not applicable to this sale. The PPA provides that Elpida must deliver to Rambus records related to the transferred patents, but that, subject to confidentiality conditions in the PPA, Elpida may retain copies of such records. The PPA does not involve the sale of avoidance actions. Inapplicable to the sale.

Sale of Avoidance Actions Requested Findings as to Successor Liability Sale Free and Clear of Unexpired Leases Credit Bid Relief from Bankruptcy Rule 6004(h) Transferred Assets

Inapplicable to the sale. Inapplicable to the sale. Inapplicable to the sale.

The PPA lists certain patents to be transferred to Rambus. Some of these patents are registered in the United States.

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Exclusive License and Assignment

The PPA grants Rambus and its subsidiaries an exclusive, worldwide, non-transferable, fully paid-up and royalty-free license in the transferred patent assets and provides that Elpida irrevocably sells, assigns, transfers and conveys all of its rights in the transferred patent assets to Rambus. Elpida covenants not to take any action or fail to take any action that would result in an encumbrance being placed on any of the transferred patent assets. Subject to certain conditions, under the PPA, Rambus grants to Elpida and its subsidiaries a worldwide, non-transferable, fully paid-up, royalty-free, irrevocable, perpetual license in the transferred patent assets, solely with respect to products made by or on behalf of Elpida. xxxxxx xxxxx in four equal quarterly installments beginning in the third calendar quarter of 2012 or shortly after approval of the PPA by the Court. BASIS FOR RELIEF REQUESTED

License Back

Purchase Price

A.

Entry into the PPA Is in the Ordinary Course of Elpidas Business 13. In order to determine whether a transaction is in the ordinary course of business,

the Third Circuit and other courts use a two-part inquiry. In re Nellson Nutraceutical, Inc., 369 B.R. 787, 797 (Bankr. D. Del. 2007); In re Dana Corp., 358 B.R. 567, 580 (Bankr. S.D.N.Y. 2006). First, the transaction is analyzed from the vantage point of a hypothetical creditor[,] and the inquiry is whether the transaction subjects the creditor to economic risk of a nature different from those he accepted when he decided to extend credit. Nellson, 369 B.R. at 797 (quoting In re Roth Am., Inc., 975 F. 2d 949, 953 (3d Cir. 1992)). This is known as the vertical dimension test, and the focus is on the debtors pre-petition business practices and conduct, although the court must also consider the changing circumstances inherent in the hypothetical creditors expectations. Roth, 975 F. 2d at 953 (internal citations omitted).

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14.

The second part of the inquiry is the horizontal dimension test. The horizontal

dimension test analyzes, whether from an industry-wide perspective, the transaction is of the sort commonly undertaken by companies in that industry. Id. 15. Because the PPA contains a license-back to Elpida of the patents being sold, in

terms of its effect on Elpidas business, the sale of the patents pursuant to the PPA is similar to Elpidas entry into a license agreement with Rambus. License agreements are, essentially, covenants not to sue for patent infringement, and because Elpida will hold a perpetual, royaltyfree license as part of the PPA, Elpida will be able to continue to use the patents in connection with its business operations and be protected from infringement liability in connection with such use. In other words, entry into the PPA will in no way negatively affect Elpidas business operations. At the same time, by selling the patents, Elpida is able to liquidate a portfolio of assets that was not material to its estate in exchange for xxxxxx xxxx. Because the PPA essentially has the same effect as entry into a license agreement, entry into the PPA should be deemed to be in the ordinary course of Elpidas business under the vertical dimension test. 16. Furthermore, entry into the PPA is certainly within the ordinary course of

Elpidas business under the horizontal dimension test. The sale and license-back of patents is a typical method by which license agreements are structured, either initially or upon amendment. 5 Moreover, with the increase in the number of non-practicing entities holding
5 By way of example, the transfer of patent rights in lieu of monetary compensation has been the basis for numerous cross-licensing deals. However, with the rise of non-practicing-entities (NPEs), much recent licensing activity has involved one-way transfers of patent rights and one-way transfers of monetary compensation. However, while an NPE generally has no products for which a license from its target is needed, NPEs do have a desire to acquire additional patent portfolios. Therefore, NPEs frequently accept patent transfers in lieu of a portion of monetary compensation, either directly in the license or in a side transaction. See, for example, the press releases regarding transactions of the latter type in the DRAM industry, attached as Exhibit B. In the transactions reported in the attached press releases, Hynix Semiconductor, Inc., Samsung Electronics Co., Ltd., and Micron Technology, Inc. each took a running royalty license to some of MOSAID Technologies Inc.'s patents and also transferred a patent portfolio to MOSAID in exchange for a one-time, and offsetting, fee.

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patents, license agreements have becoming increasingly one-way transfers in exchange for monetary compensation (as opposed to cross-licensing deals). However, although a non-

practicing entity has no products for which a patent license could be needed, such entities often want to acquire additional patents for their portfolios. Therefore non-practicing entities

frequently accept patent transfers in lieu of a portion of monetary compensation, either directly through the license agreement or as part of a side agreement, making the sale of patents in connection with patent license agreement increasingly common. Therefore, entry into the PPA satisfies both parts of the two-step inquiry and should be considered to be in the ordinary course of Elpidas business. B. Entry into the PPA Is Warranted Under Section 363(b) of the Bankruptcy Code 17. Although Elpida believes that entry into the PPA is an ordinary course transaction,

even if were not, approval is warranted under section 363 of the Bankruptcy Code. Section 363(b) provides, in pertinent part, that the trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate. 11 U.S.C. 363(b)(1). With respect to a case commenced under chapter 15 of the Bankruptcy Code, section 363 is made applicable to property of a debtor that is within the territorial jurisdiction of the United States pursuant to section 1520 of the Bankruptcy Code. 11 U.S.C. 1520(a)(2). 18. Although section 363 of the Bankruptcy Code does not specify a standard for

determining when it is appropriate for a court to authorize the use, sale or lease of property of the estate, courts in this district and elsewhere have found that a debtors sale or use of assets outside the ordinary course of business should be approved if the debtor can demonstrate a sound business justification for the proposed transaction. See, e.g., In re Eagle Picher Holdings, Inc., 2005 Bankr. LEXIS 2894, at 3 (Bankr. S.D. Ohio 2005); In re Martin, 91 F.3d 389, 395 (3d Cir.

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1996); In re Abbotts Dairies of Penn., Inc., 788 F.2d 143 (3d Cir. 1986); In re Lionel Corp., 722 F.2d 1063, 1071 (2d Cir. 1983). Once the Foreign Representatives, on behalf of Elpida,

articulate a valid business justification, [t]he business judgment rule is a presumption that in making the business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action was in the best interests of the company. In re S.N.A. Nut Co., 186 B.R. 98 (Bankr. N.D. Ill. 1995); see also In re Integrated Res., Inc., 147 B.R. 650, 656 (Bankr. S.D.N.Y. 1992); In re Johns-Manville Corp., 60 B.R. 612, 615-16 (Bankr. S.D.N.Y. 1986) (a presumption of reasonableness attaches to a Debtors management decisions). 19. The sale of a debtors assets is appropriate where there are sound business reasons

behind such a determination. See Myers v. Martin (In re Martin), 91 F.3d 389, 395 (3d Cir. 1996); see also Dai-Ichi Kangyo Bank, Ltd. v. Montgomery Ward Holding Corp., (In re Montgomery Ward Holding Corp.), 242 B.R. 147, 153 (Bankr. D. Del. 1999); In re Del. & Hudson Ry. Co., 124 B.R. 169, 176 (D.D.C. 1991); Stephens Indus., Inc. v. McClung, 789 F.2d 386 (6th Cir. 1986) (sale of substantially all assets of estate authorized where a sound business purpose dictates such action). Elpida has a sound business justification for entering into the PPA at this time. 20. The sale of the patents pursuant to the PPA benefits Elpida by providing Elpida

with significant upfront value for the patents, while, at the same time, enabling Elpida to enjoy the benefits of a license back with respect to the same patents, thereby ensuring that the sale will have no negative effect on Elpidas ongoing business operations. The xxxxxx xxxx

consideration can be used by Elpida to satisfy its administrative claims such as its continued

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royalty obligations under the License Agreement which will enhance Elpidas overall liquidity to the benefit of its business and its creditors. 21. Importantly, under the terms of the PPA, Rambus will grant Elpida and its current

and future subsidiaries a worldwide, non-exclusive, non-transferable, fully paid-up, royalty-free, irrevocable perpetual license with respect to the patents being sold under the PPA. PPA 4.1. Therefore, the sale of the assets to Rambus will in no way harm Elpidas ongoing business operations or its ability to reorganize because it has no effect on Elpida's continued use of the technology covered by the patents or its ability to be free from potential lawsuits with respect to these patents.6 C. A Private Sale of the Patents Pursuant to the PPA Is Warranted Under the Circumstances 22. There is no requirement that sales pursuant to section 363 of the Bankruptcy Code

be conducted pursuant to a formal auction. Rather, Bankruptcy Rule 6004, which addresses the use, sale, or lease of property of the estate, specifically provides that asset sales outside the ordinary course of business may be effected by either public or private sale. Fed. R. Bankr. P. 6004(f)(1); see also Local Rule 6004-1(iv)(D). Accordingly, a debtor, or, in this case, the Foreign Representatives, may sell assets outside of the ordinary course of business without conducting a public auction of the assets or soliciting higher bids for the assets. See In re

As the Court is aware, Elpida has filed a plan of reorganization in the Japan Proceeding, which incorporates a sponsorship arrangement (the Micron Sponsorship) funded by Micron Technology, Inc. (Micron) and which had obtained the approval of the Tokyo Court on July 2, 2012. Elpidas plan of reorganization, as of the date of this filing, is still under review by the Examiner appointed in the Japan Proceeding and by the Tokyo Court and has not yet been submitted to Elpidas creditors for their approval. In connection with the Micron Sponsorship, and as required thereunder, Elpida was required to obtain Microns consent in order to enter into the PPA with Rambus. For this reason, Elpida and Micron entered into that certain Patent License Agreement, dated as of August 10, 2012 (the Micron Patent License Agreement), and Micron provided its consent to Elpidas entry into the PPA. Although Elpida believes that the Micron Patent License Agreement was entered by Elpida within the ordinary course of its business, out of an abundance of caution by separate motion Elpida is presenting the Micron Patent License Agreement to the Courts approval.

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Woodscape Ltd. Pship, 134 B.R. 165, 174 (Bankr. D. Md. 1991) (There is no prohibition against a private sale and there is no requirement that the sale be by public auction.) 23. A bankruptcy court may exercise wide latitude in approving even a private sale

of all or substantially all of the estate assets not in the ordinary course of business under 363(b). In re Ancor Exploration Co., 30 B.R. 802, 808 (N.D. Okla. 1983). As such, courts in this district and other districts often permit a debtor to sell assets outside the ordinary course of business by private sale when the debtor demonstrates that the sale is permissible under section 363(b) of the Bankruptcy Code. Courts consider four factors when evaluating an asset sale under section 363: (1) that there is a sound business purpose for the sale, (2) the proposed sale price is fair, (3) the debtor has provided adequate and reasonable notice and (4) the buyer has acted in good faith. In re Delaware & Hudson Ry Co., 124 B.R. 169, 176 (D. Del. 1991); In re Exaris, 380 B.R. 741, 744 (Bankr. D. Del. 2008). Additionally, debtors authorized to conduct private

sales often face unique circumstances resulting in the potential for increased value through a private sale. For example, in In re Capmark Financial Group Inc., the court approved a private sale of all of the issued and outstanding shares held by debtor Capmark Capital Inc. in Capmark Securities Inc. (Capmark Securities), noting that the sale was supported by good business reasons, it served in the best interests of debtors and creditors, and the consideration was fair and reasonable and constituted reasonably equivalent value and fair consideration. See In re Capmark Financial Group Inc., No. 09-13684 (CSS) (Bankr. D. Del. July 14, 2010) [Docket No. 1444]. The debtors, in their private sale motion, identified several justifications for a prompt, private sale: that liquidation of the shares would be more costly than a sale, the monthly expenses of continuing to operate Capmark Securities would only increase from prolonged efforts to market or auction the shares, the buyers demonstrated desire to move quickly towards a sale, its

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familiarity with Capmark Securities business history, and its willingness to forgo a financing contingency and post-closing indemnities made the offer more attractive, and the debtors had already conducted an informal marketing process which allowed them to conclude that a public bidding process would not create more value. See In re Capmark Financial Group Inc., No. 0913684 (CSS) (Bankr. D. Del. June 23, 2010) [Docket No. 1345]. 24. Courts in this district have approved other private sale orders on similar grounds.

See, e.g., In re. Visteon Corp., No. 09-11786 (CSS) (Bankr. D. Del. Jan. 20, 2010) [Docket No. 1709] (approving private sale where debtors established, among other things, that the assets were not necessary to the reorganization effort and that an auction process would likely not result in a higher or better offer); In re IH 1 Inc. (f/k/a Indalex Holdings Fin., Inc.), No. 09-10982 (PJW) (Bankr. D. Del. Sept. 28, 2009) [Docket No. 673] (approving a private sale of non-residential real property); In re Printing Solutions LP, No. 09-10266 (CSS) (Bankr. D. Del. July 22, 2009) [Docket No. 436] (approving private sale of assets related to the debtors controller business where consideration was fair and reasonable, was the highest and best offer, and constituted reasonably equivalent value and fair consideration); In re Goodys, LLC, No. 09-10124 (CSS) (Bankr. D. Del. Mar. 18, 2009) [Docket No. 507] (approving private sale of certain merchandise); In re KB Toys, Inc., No. 08-13269 (KJC) (Bankr. D. Del. Jan. 14, 2009) [Docket No. 265] (approving private sale where consideration was fair and reasonable, was the highest or best offer, provided a greater recovery for creditors than would be provided by any other available alternative, and constituted reasonably equivalent value and fair consideration). 25. When a debtor concludes that a private purchase offer is the most advantageous

to the estate, a court should defer to the debtors business judgment. See In re Bakalis, 220 B.R. 525, 532 (Bankr. E.D.N.Y. 1998). The Foreign Representatives have the responsibility to protect

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and preserve Elpidas assets for the benefit of Elpidas creditors, and, have determined, in their business judgment, that the best means of doing so is through a private sale of the patents to Rambus pursuant to the PPA. This is because, as set forth in more detail herein, (a) Elpida has determined that the price being provided by Rambus is fair and reasonable, and moreover believes that the consideration, both monetary and non-monetary, being provided by Rambus is more than Elpida will receive from any other purchaser of the patents, (b) the sale will maintain and enhance Elpidas business relationship with an important licensor of technology, and (c) patents are unique assets, and Elpida believes that a formal sales process for the patents would be costly and could, in fact, result in a decreased purchase price for the patents or, worse, could impair the value of Elpidas patent portfolio as a whole. 26. The Foreign Representatives and their advisors have analyzed recent patent sales

and have determined that, based on the average cost in these sales and sales price of patents based on the expected profits earned by the patent, Elpida is receiving reasonable value for the patents being sold pursuant to the PPA. Moreover, the consideration for the assets is more than simply the monetary consideration provided for in the PPA. Indeed the PPA was negotiated in connection with the parties amendment of the License Agreement. By entering into the PPA with Rambus, Elpida is able to maintain a business relationship with an important licensor of technology. In fact, Elpida believes that because the PPA was negotiated at the same time as the amendment of the License Agreement, Elpida was able to obtain maximum value for the patents, with a substantially higher price obtained as a result of the timing of such negotiations. 27. Furthermore, because of the unique nature of patents, Elpida believes that public

marketing of the patents would not increase the purchase price for the patents and could, in fact, result in a lower purchase price for the patents. In particular, Elpida is concerned that lack of

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familiarity by market participants with the technology of the patents subject to the sale would induce them to take a conservative approach in their risk analyses and as a result would induce them to offer a much lower purchase price than the price offered by Rambus. For this reason, Elpida believes that Rambus is the logical purchaser of these patents because of Rambus familiarity with them. Through protracted negotiations, Elpida was able to significantly and materially increase the compensation being provided by Rambus and believes that marketing of the patents is not practical and will not result in any increased value for the estates. Moreover, if Elpida were to publically market the patents, and the market were to respond negatively (by assigning a lower value to the patents subject to the PPA), this result could impair the value of Elpidas portfolios as a whole. Through a private sale to Rambus, Elpida is not only insulated from this risk but is also saved the cost, time, and uncertainty of a public sale process. 28. Finally, patents are not a simple asset to publically market or sell, in particular,

when the patents are subject to cross-license agreements, as is the case with the patents subject to the PPA. Publicly bidding on patents involves substantial risks to potential acquirers. Public disclosure of such a bid could signal the potential acquirers product or business development efforts in the field of the inventions covered by the applicable patents and therefore reveal critical strategic information to the potential acquirers competitors. Such a public bid could also signal perceived gaps in the potential acquirers freedom to operate its business without the applicable patents and invite litigation for patent infringement should the potential acquirer fail in its attempted acquisition. Additionally, because these patents may already be subject to a license, any purchaser of the patents (other than Rambus) will take ownership of the patents subject to the license, which decreases the value other potential purchasers would ascribe to the patents.

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29.

For these reasons, the Foreign Representatives do not believe that a public

marketing or auction process will materially increase the funds received by Elpida for these patents and that a private sale is warranted under the circumstances. D. Rambus Is Entitled to the Protections of Section 363(m) of the Bankruptcy Code 30. Pursuant to section 363(m) of the Bankruptcy Code, a good faith purchaser is one

who purchases assets for value, in good faith, and without notice of adverse claims. See In re Abbotts Dairies, 788 F.2d at 147; In re Mark Bell Furniture Warehouse, Inc., 992 F.2d 7, 9 (1st Cir. 1993); In re Willemain V. Kivitz, 764 F.2d 1019, 1023 (4th Cir. 1985). 31. The value both monetary and non-monetary being provided by Rambus for

the patents set forth in the PPA is fair and reasonable, and the PPA was negotiated at arms length, with both Rambus and Elpida represented by their own counsel. Accordingly, the proposed order granted the relief requested herein includes a provision that Rambus is a good faith purchaser within the meaning of section 363(m) of the Bankruptcy Code. The Foreign Representatives believe that such relief is proper and customary under the circumstances. NOTICE 32. Notice of this Motion has been given via first-class United States mail to (i) the

United States Trustee for the District of Delaware, (ii) United States counsel to the Steering Committee for the Ad Hoc Group Bondholders of Elpida, (iii) United States counsel to Rambus, and (iv) all parties entitled who have requested notice pursuant to Bankruptcy Rule 2002. The Foreign Representatives submit that no other or further notice need be given in light of the circumstances of this chapter 15 case.

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NO PRIOR REQUEST 33. other court. CONCLUSION WHEREFORE, the Foreign Representatives respectfully request that the Court enter an order, substantially in the form attached hereto as Exhibit C, (i) granting the relief sought herein and (ii) granting the Foreign Representatives such other and further relief as the Court deems just and proper. [SIGNATURE PAGE FOLLOWS] No previous request for the relief requested herein has been made to this or any

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Dated: September 28, 2012 Wilmington, Delaware

RICHARDS, LAYTON & FINGER, P.A.

By: /s/ Lee E. Kaufman Mark D. Collins (No. 2981) Lee E. Kaufman (No. 4877) 920 North King Street Wilmington, Delaware 19801 Telephone: (302) 651-7700 Facsimile: (302) 651-7701 and DAVIS POLK & WARDWELL LLP Timothy Graulich (admitted pro hac vice) James I. McClammy (admitted pro hac vice) Giorgio Bovenzi (admitted pro hac vice) 450 Lexington Avenue New York, New York 10017 Telephone: (212) 450-4000 Facsimile: (212) 701-5800 Theodore A. Paradise (admitted pro hac vice) Izumi Garden Tower 33F 1-6-1 Roppongi Minato-ku Tokyo 106-6033, Japan Telephone: +813 5561 4421 Facsimile: +813 5561 4425 Attorneys for Foreign Representatives

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