þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
DELAWARE | 77-0191793 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
601 McCarthy Blvd. | ||
Milpitas, California | 95035 | |
(Address of principal executive offices) | (Zip Code) |
Large accelerated filer
þ
|
Accelerated
filer
o
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Non-accelerated filer
o
|
Page No. | ||||||||
PART I. FINANCIAL INFORMATION
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Item 1. | ||||||||
3 | ||||||||
4 | ||||||||
5 | ||||||||
6 | ||||||||
Item 2. | 34 | |||||||
Item 3. | 44 | |||||||
Item 4. | 44 | |||||||
|
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PART II. OTHER INFORMATION
|
||||||||
|
||||||||
Item 1. | 45 | |||||||
Item 1A. | 49 | |||||||
Item 2. | 67 | |||||||
Item 3. | 67 | |||||||
Item 4. | 67 | |||||||
Item 5. | 67 | |||||||
Item 6. | 68 | |||||||
70 | ||||||||
71 | ||||||||
EXHIBIT 10.1 | ||||||||
EXHIBIT 10.2 | ||||||||
EXHIBIT 10.3 | ||||||||
EXHIBIT 10.4 | ||||||||
EXHIBIT 10.5 | ||||||||
EXHIBIT 10.6 | ||||||||
EXHIBIT 10.8 | ||||||||
EXHIBIT 10.9 | ||||||||
EXHIBIT 31.1 | ||||||||
EXHIBIT 31.2 | ||||||||
EXHIBIT 32.1 | ||||||||
EXHIBIT 32.2 |
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
October 1, 2006
January 1, 2006*
(Unaudited)
$
1,474,155
$
762,058
1,077,257
935,639
304,934
329,014
396,220
331,584
99,610
95,518
80,814
121,922
3,432,990
2,575,735
419,916
256,437
211,092
480,868
265,074
150,114
160,681
5,415
92,299
4,608
57,450
58,263
$
5,050,755
$
3,120,187
$
147,009
$
231,208
100,852
74,121
169,714
115,525
133,079
150,283
550,654
571,137
1,150,000
36,729
25,259
1,737,383
596,396
197
188
2,166,309
1,621,819
1,140,661
906,624
6,205
2,635
(7,475
)
3,313,372
2,523,791
$
5,050,755
$
3,120,187
*
Information derived from the audited Consolidated Financial Statements.
The accompanying notes are an integral part of these condensed consolidated financial
statements.
Table of Contents
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
(In thousands, except per share amounts)
$
673,189
$
529,735
$
1,847,592
$
1,383,176
78,196
59,896
246,238
172,326
751,385
589,631
2,093,830
1,555,502
455,345
332,847
1,270,389
884,832
296,040
256,784
823,441
670,670
78,073
43,420
215,620
150,771
44,961
31,610
133,403
83,241
40,247
23,186
107,445
58,527
39,600
4,432
12,579
167,713
98,216
508,647
292,539
128,327
158,568
314,794
378,131
389
14
751
(41
)
29,943
11,128
68,462
28,822
1,600
468
3,854
(8,785
)
291
389
(367
)
2,618
32,223
11,999
72,700
22,614
160,550
170,567
387,494
400,745
57,269
63,109
153,457
148,275
$
103,281
$
107,458
$
234,037
$
252,470
$
0.53
$
0.59
$
1.20
$
1.39
$
0.51
$
0.55
$
1.15
$
1.32
196,317
183,047
194,974
181,716
202,747
194,321
202,660
191,527
Table of Contents
Nine months ended
October 1, 2006
October 2, 2005
(In thousands)
$
234,037
$
252,470
(24,021
)
(194
)
(1,364
)
8,752
89,709
46,906
2,760
(111
)
69,848
1,591
(64,080
)
39,600
3,201
9,468
28,276
(16,573
)
(57,765
)
(90,456
)
47,108
32,737
(88,363
)
61,342
28,380
16,355
95,837
79,697
403,163
401,984
(1,438,195
)
(491,282
)
881,772
455,758
(132,209
)
(123,443
)
(80,500
)
8,524
(34,249
)
(95,445
)
9,432
(889,564
)
(150,273
)
1,125,500
(386,090
)
308,672
86,108
48,243
64,080
1,198,270
48,243
228
863
712,097
300,817
762,058
463,795
$
1,474,155
$
764,612
$
260,908
$
Table of Contents
(Unaudited)
Table of Contents
Table of Contents
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
None
None
None
None
0.50
0.47
0.53
0.53
4.85
%
4.02
%
4.63
%
3.90
%
3.3 years
4.2 years
3.8 years
4.6 years
$
20.34
$
16.70
$
26.70
$
12.33
Weighted
Weighted
Average
Average
Remaining
Aggregate
Exercise
Contractual
Intrinsic
Shares
Price
Term (Years)
Value
(In thousands, except exercise price and contractual term)
20,316
$
21.57
5,536
56.20
(4,414
)
17.41
(682
)
40.83
(7
)
48.09
20,749
31.06
6.5
$
502,031
19,640
30.22
6.5
$
489,475
9,059
$
17.39
5.8
$
328,108
Table of Contents
Weighted
Average Grant
Aggregate
Shares
Date Fair Value
Intrinsic Value
105,188
$
42.19
646,632
61.15
(81,547
)
51.31
(27,411
)
70.71
642,862
$
58.49
$
34,418,831
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
None
None
None
None
0.51
0.37
0.52
0.40
5.18
%
3.73
%
4.96
%
3.16
%
1
/
2
year
1
/
2
year
1
/
2
year
1
/
2
year
$
13.73
$
8.78
$
16.73
$
7.58
Table of Contents
Three months ended
Nine months ended
October 1, 2006
October 1, 2006
(In thousands)
$
2,621
$
5,098
10,269
29,476
4,623
13,788
7,679
21,486
$
25,192
$
69,848
$
21,262
$
59,010
2,888
8,127
1,042
2,711
$
25,192
$
69,848
Three months ended
Nine months ended
October 2, 2005
October 2, 2005
(In thousands, except per share amounts)
$
107,458
$
252,470
(10,268
)
(30,975
)
$
97,190
$
221,495
$
0.59
$
1.39
$
0.55
$
1.32
$
0.53
$
1.22
$
0.50
$
1.16
Table of Contents
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
$
9,661
$
11,725
$
11,258
$
11,380
1,836
(534
)
627
3,954
(924
)
(521
)
(1,312
)
(4,664
)
$
10,573
$
10,670
$
10,573
$
10,670
Table of Contents
October 1, 2006
January 1, 2006
$
158,776
$
99,006
87,067
61,900
150,377
170,678
$
396,220
$
331,584
October 1, 2006
January 1, 2006
$
53,385
$
61,927
93,212
160,557
161,080
169,411
42,067
4,303
$
480,868
$
265,074
October 1, 2006
January 1, 2006
$
15,323
$
11,013
6,457
4,709
35,670
42,541
$
57,450
$
58,263
October 1, 2006
January 1, 2006
$
54,127
$
55,614
36,497
2,165
5,850
4,200
73,240
53,546
$
169,714
$
115,525
Table of Contents
$
5,415
36
155,230
$
160,681
October 1, 2006
January 1, 2006
Gross Carrying
Accumulated
Net Carrying
Gross Carrying
Accumulated
Net Carrying
Amount
Amortization
Amount
Amount
Amortization
Amount
$
76,300
$
(7,721
)
$
68,579
$
$
$
12,900
(2,070
)
10,830
1,500
(542
)
958
14,100
(3,329
)
10,771
103,300
(13,120
)
90,180
1,500
(542
)
958
7,389
(5,270
)
2,119
7,389
(3,739
)
3,650
$
110,689
$
(18,390
)
$
92,299
$
8,889
$
(4,281
)
$
4,608
Estimated Amortization Expenses
Acquisition-
Related
Intangible
Assets
Technology
License
(In thousands)
$
4,432
$
591
17,687
903
17,229
625
12,724
12,529
25,579
$
90,180
$
2,119
Table of Contents
October 1, 2006
January 1, 2006
(In thousands)
$
(543
)
$
(4,233
)
807
(383
)
5,941
7,251
$
6,205
$
2,635
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
(In thousands)
$
103,281
$
107,458
$
234,037
$
252,470
(1,025
)
32
1,190
1,245
2,365
(688
)
3,690
(1,706
)
(6,109
)
(1,478
)
(1,310
)
(9,510
)
$
98,512
$
105,324
$
237,607
$
242,499
Table of Contents
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
$
103,281
$
107,458
$
234,037
$
252,470
196,317
183,047
194,974
181,716
$
0.53
$
0.59
$
1.20
$
1.39
$
103,281
$
107,458
$
234,037
$
252,470
196,317
183,047
194,974
181,716
6,430
11,274
7,686
9,811
202,747
194,321
202,660
191,527
$
0.51
$
0.55
$
1.15
$
1.32
34,478
468
32,679
5,629
Table of Contents
October 1, 2006
January 1, 2006
(In millions)
$1,150.0
$
Convertible Bond Hedge
. Counterparties agreed to sell to the Company up to approximately
14.0 million shares of the Companys common stock, which is the number of shares initially
issuable upon conversion of the 1% Notes in full, at a price of $82.36 per share. The
convertible bond hedge transaction will be settled in net shares and will terminate upon the
earlier of the maturity date of the 1% Notes or the first day none of the 1% Notes remain
outstanding due to conversion or otherwise. Settlement of the
convertible bond hedge in net shares, based on the number of shares issued upon conversion of the 1% Notes, on the
expiration date would result in the Company receiving net shares
equivalent to the number of shares issuable by the Company upon conversion of the 1% Notes. Should there be an early
unwind of the convertible bond hedge transaction, the number of net shares potentially
received by the Company will depend upon 1) the then existing overall market conditions, 2)
the Companys stock price, 3) the volatility of the Companys stock, and 4) the
Table of Contents
amount of
time remaining before expiration of the convertible bond hedge. The convertible bond hedge
transaction cost of $386.1 million has been accounted for as an equity transaction in
accordance with Emerging Issues Task Force No. 00-19, or EITF 00-19,
Accounting for
Derivative Financial Statements Indexed to, and Potentially Settled in, a
Companys Own Stock
. The Company recorded a tax benefit of approximately $145.6 million in
stockholders equity from the deferred tax assets related to the convertible bond hedge.
Sold Warrants.
The Company received $308.7 million from the same counterparties from the
sale of warrants to purchase up to approximately 14.0 million shares of the Companys common
stock at an exercise price of $95.03 per share. The warrants have an expected life of 7.25
years and expire in August 2013. At expiration, the Company may, at its option, elect to
settle the warrants on a net share basis. As of October 1, 2006, the warrants had not been
exercised and remained outstanding. The value of the warrants has been classified as equity
because they meet all the equity classification criteria of EITF 00-19.
Table of Contents
Table of Contents
Table of Contents
Master Lease Agreements by Execution Date
Lease Amounts
(1)
Expiration
(Yen in billions)
(Dollars in millions)
¥
6.6
$
56
2009
20.5
174
2010
15.8
134
2011
15.2
129
2011
2011
51.5
437
¥
58.1
$
493
(1)
The maximum amount of the Companys contingent indemnification or guarantee
obligation, net of payments and any lease adjustments.
(2)
In September 2006, Flash Partners entered into a master equipment lease agreement
providing for up to 98.0 billion Japanese yen, or approximately $830 million based upon the
exchange rate at October 1, 2006, of original lease obligations. On October 10, 2006, Flash
Partners utilized approximately 46.0 billion Japanese yen, or approximately $390 million
based upon the exchange rate at October 1, 2006 of the amount
provided under this lease line. The Companys guarantee
for half of this latest 46.0 billion Japanese yen draw-down was 23.0 billion Japanese yen, or
approximately $195 million based upon the exchange rate at October 1, 2006. See Note 14,
Subsequent Events.
Table of Contents
Table of Contents
More than 5
Less than
2 - 3 Years
3 5 Years
Years
1 Year
(Fiscal 2007
(Fiscal 2009
(Beyond
Total
(3 months 2006)
and 2008)
and 2010)
Fiscal 2010)
$
40,453
$
1,572
$
11,129
$
10,583
$
17,169
230,678
(4)
23,140
137,614
67,129
2,795
2,713,192
(4)
76,377
1,110,887
755,895
770,033
70,500
(4)
5,500
65,000
67,373
67,373
interest
(2)
1,229,016
5,750
23,000
23,000
1,177,266
88,399
88,399
commitments
(3)
310,832
(4)
310,832
$
4,750,443
$
578,943
$
1,347,630
$
856,607
$
1,967,263
As of
October
1,
2006
$
55,664
$
436,921
(1)
In July 2006, the Company and Toshiba agreed to expand Fab 3 to 110,000 wafers per
month and agreed to an additional investment in Fab 3 of which the Companys share is
approximately $350 million.
(2)
In May 2006, the Company issued and sold $1.15 billion in aggregate principal
amount of 1% Convertible Senior Notes due May 15, 2013. The Company will pay cash interest
at an annual rate of 1%, payable semi-annually on May 15 and November 15 of each year,
beginning November 15, 2006.
(3)
Includes Toshiba foundries, FlashVision, Flash Partners, related parties vendors
and other silicon sources vendors purchase commitments.
(4)
Includes amounts denominated in Japanese yen which are subject to fluctuation in
exchange rates prior to payment and have been translated using the exchange rate at October
1, 2006.
(5)
The Companys contingent indemnification obligation is 6.6 billion Japanese yen,
or approximately $56 million based upon the exchange rate at October 1, 2006.
(6)
The Companys guarantee obligation, net of cumulative lease payments, is 51.5
billion Japanese yen, or approximately $437 million based upon the exchange rate at October
1, 2006.
Table of Contents
Table of Contents
Table of Contents
$
9,432
6,956
4,010
1,919
1,786
24,103
(2,302
)
(23,081
)
(25,383
)
$
(1,280
)
$
(1,280
)
39,600
(17,462
)
3,928
155,230
76,300
11,400
14,100
281,816
14,563
$
296,379
Table of Contents
Table of Contents
Three months
ended
Nine months ended
October 2, 2005
October 1, 2006
October 2, 2005
(In thousands, except per share amounts)
$
593,531
$
2,094,671
$
1,565,941
$
98,088
$
263,329
$
221,452
$
0.53
$
1.35
$
1.19
$
0.49
$
1.29
$
1.13
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Three months ended
Nine months ended
October 1,
% of
October 2,
% of
October 1,
% of
October 2,
% of
2006
Revenue
2005
Revenue
2006
Revenue
2005
Revenue
(In millions, except percentages)
$
673.2
89.6
%
$
529.7
89.8
%
$
1,847.6
88.2
%
$
1,383.2
88.9
%
78.2
10.4
%
59.9
10.2
%
246.2
11.8
%
172.3
11.1
%
751.4
100.0
%
589.6
100.0
%
2,093.8
100.0
%
1,555.5
100.0
%
455.4
60.6
%
332.8
56.4
%
1,270.4
60.7
%
884.8
56.9
%
296.0
39.4
%
256.8
43.6
%
823.4
39.3
%
670.7
43.1
%
78.0
10.4
%
43.4
7.4
%
215.6
10.3
%
150.8
9.7
%
45.0
6.0
%
31.6
5.4
%
133.4
6.4
%
83.2
5.3
%
40.2
5.3
%
23.2
3.9
%
107.4
5.1
%
58.5
3.8
%
39.6
1.9
%
4.4
0.6
%
12.6
0.6
%
167.6
22.3
%
98.2
16.7
%
508.6
24.3
%
292.5
18.8
%
128.4
17.1
%
158.6
26.9
%
314.8
15.0
%
378.2
24.3
%
32.2
4.3
%
12.0
2.0
%
72.7
3.5
%
22.6
1.5
%
160.6
21.4
%
170.6
28.9
%
387.5
18.5
%
400.8
25.8
%
57.3
7.7
%
63.1
10.7
%
153.5
7.3
%
148.3
9.6
%
$
103.3
13.7
%
$
107.5
18.2
%
$
234.0
11.2
%
$
252.5
16.2
%
Three months ended
Nine months ended
Percent
Percent
October 1, 2006
October 2, 2005
Change
October 1, 2006
October 2, 2005
Change
(In millions, except percentages)
$
445.5
$
401.4
11
%
$
1,263.8
$
1,094.5
15
%
227.7
128.3
77
%
583.8
288.7
102
%
$
673.2
$
529.7
27
%
$
1,847.6
$
1,383.2
34
%
Table of Contents
Three months ended
Nine months ended
October 1, 2006
October 2, 2005
October 1, 2006
October 2, 2005
% of
% of
% of
% of
Product
Product
Percent
Product
Product
Percent
Revenue
Revenue
Revenue
Revenue
Change
Revenue
Revenue
Revenue
Revenue
Change
(In millions, except percentages)
$
281.7
42
%
$
256.6
48
%
10
%
$
775.1
42
%
$
695.0
50
%
12
%
207.4
31
%
160.9
30
%
29
%
557.3
30
%
444.2
32
%
25
%
184.1
27
%
112.2
22
%
64
%
515.2
28
%
244.0
18
%
111
%
$
673.2
100
%
$
529.7
100
%
27
%
$
1,847.6
100
%
$
1,383.2
100
%
34
%
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
78.2
$
59.9
31
%
$
246.2
$
172.3
43
%
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
217.8
$
196.9
11
%
$
577.2
$
498.3
16
%
32.4
%
37.2
%
31.2
%
36.0
%
39.4
%
43.6
%
39.3
%
43.1
%
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
78.0
$
43.4
80
%
$
215.6
$
150.8
43
%
10.4
%
7.4
%
10.3
%
9.7
%
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Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
45.0
$
31.6
42
%
$
133.4
$
83.2
60
%
6.0
%
5.4
%
6.4
%
5.3
%
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
40.2
$
23.2
73
%
$
107.4
$
58.5
84
%
5.3
%
3.9
%
5.1
%
3.8
%
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
$
n/a
$
39.6
$
n/a
1.9
%
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
4.4
$
n/a
$
12.6
$
n/a
0.6
%
0.6
%
Table of Contents
Three months ended
Nine months ended
October 1,
October 2,
Percent
October 1,
October 2,
Percent
2006
2005
Change
2006
2005
Change
(In millions, except percentages)
$
0.4
$
n/a
$
0.8
$
n/a
29.9
11.1
169
%
68.5
28.8
138
%
1.6
0.5
220
%
3.8
(8.8
)
143
%
0.3
0.4
(25
)%
(0.4
)
2.6
(115
)%
$
32.2
$
12.0
168
%
$
72.7
$
22.6
222
%
Three months ended
Nine months ended
October 1,
October 2,
October 1,
October 2,
2006
2005
2006
2005
35.7
%
37.0
%
39.6
%
37.0
%
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Convertible Bond Hedge
. Counterparties agreed to sell to us up to approximately 14.0
million shares of our common stock, which is the number of shares initially issuable upon
conversion of the 1% Notes in full, at a price of $82.36 per share. The convertible bond
hedge transaction will be settled in net shares and will terminate upon the earlier of the
maturity date of the 1% Notes or the first day none of the 1% Notes remain outstanding due
to conversion or otherwise.
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Settlement of the convertible bond hedge in net shares on the
expiration date would result in us receiving net shares equivalent to the number of shares
issuable by us upon conversion of the 1% Notes. Should there be an
early unwind of the convertible bond hedge transaction, the number of net shares potentially received by us
will depend upon 1) the then existing overall market conditions, 2) our stock price, 3) the
volatility of our stock, and 4) the amount of time remaining before expiration of the
convertible bond hedge. The convertible bond hedge transaction cost of $386.1 million has
been accounted for as an equity transaction in accordance with Emerging Issues Task Force No.
00-19, or EITF 00-19,
Accounting for Derivative Financial Statements Indexed to, and
Potentially Settled in, a Companys Own Stock
. We recorded a tax benefit of approximately
$145.6 million in stockholders equity from the deferred tax assets related to the convertible
bond hedge.
Sold Warrants.
We received $308.7 million from the same counterparties from the sale of
warrants to purchase up to approximately 14.0 million shares of our common stock at an
exercise price of $95.03 per share. The warrants have an expected life of 7.25 years and
expire in August 2013. At expiration, we may, at our option, elect to settle the warrants on a
net share basis. As of October 1, 2006, the warrants had not been exercised and remained
outstanding. The value of the warrants has been classified as equity because they meet all
the equity classification criteria of EITF 00-19.
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45
46
47
48
49
50
51
52
53
54
55
56
57
58
59
60
61
62
63
64
65
66
67
68
69
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decline in the average selling prices, net of promotions, for our products due to
strategic price reductions initiated by us or our competitors, excess supply and competitive
pricing pressures;
addition of new competitors, expansion of supply from existing competitors and ourselves
creating excess market supply, which could cause our average selling prices to decline
faster than our costs decline;
purchase accounting, business integration and other challenges related to our proposed
acquisition of msystems;
timing, volume and cost of wafer production from the FlashVision, Flash Partners and
Flash Alliance ventures as impacted by fab start-up delays and costs, technology
transitions, yields or production interruptions due to natural disasters, power outages,
equipment failure or other factors;
disruption in the manufacturing operations of suppliers, including for sole sourced
components;
unpredictable or changing demand for our products, particularly demand for certain types
or capacities of our products or demand for our products in certain markets or geographies;
excess supply from captive sources due to output increasing faster than the growth in
demand;
insufficient supply from captive and non-captive sources or insufficient capacity from
our test and assembly sub-contractors to meet demand;
slowdown in price elasticity for some of our more mature markets for NAND flash memory;
potential delay in the emergence of new markets and products for NAND flash memory and
acceptance of our products in these markets;
our license and royalty revenues may decline significantly in the future as our existing
license agreements and key patents expire;
timing of sell-through by our distributors and retail customers;
increased purchases of flash memory products from our non-captive sources, which
typically cost more than products from our captive sources;
difficulty in forecasting and managing inventory levels; particularly due to
noncancelable contractual obligations to purchase materials such as flash memory and
controllers, and the need to build finished product in advance of customer purchase orders;
errors or defects in our products caused by, among other things, errors or defects in the
memory or controller components, including memory and non-memory components we procure from
third-party suppliers;
write-downs of our investments in fabrication capacity, equity investments and other assets;
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expensing of share-based compensation; and
the factors listed elsewhere under Risk Factors.
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price, quality and on-time delivery to our customers;
product performance, availability and differentiation;
success in developing new applications and new market segments;
sufficient availability of supply;
efficiency of production;
timing of new product announcements or introductions by us, our customers and our competitors;
the ability of our competitors to incorporate standards or develop formats which we do not offer;
the number and nature of our competitors in a given market;
successful protection of intellectual property rights; and
general market and economic conditions.
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any of our existing patents will not be invalidated;
patents will be issued for any of our pending applications;
any claims allowed from existing or pending patents will have sufficient scope or strength;
our patents will be issued in the primary countries where our products are sold in order
to protect our rights and potential commercial advantage; or
any of our products or technologies do not infringe on the patents of other companies.
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the need to comply with foreign government regulation;
general geopolitical risks such as political and economic instability, potential
hostilities and changes in diplomatic and trade relationships;
natural disasters affecting the countries in which we conduct our business, particularly
Japan, such as the earthquakes experienced in Taiwan in 1999, in Japan in 2004, 2003 and
previous years, and in China in previous years;
reduced sales to our customers or interruption to our manufacturing processes in the
Pacific Rim that may arise from regional issues in Asia;
imposition of regulatory requirements, tariffs, import and export restrictions and other
barriers and restrictions;
imposition of additional duties, charges and/or fees related to customs entries for our
products, which are all manufactured offshore;
inability to successfully manage our foreign exchange exposures;
longer payment cycles and greater difficulty in accounts receivable collection;
adverse tax rules and regulations;
weak protection of our intellectual property rights; and
delays in product shipments due to local customs restrictions.
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increase our vulnerability to general adverse economic and industry conditions;
limit our ability to obtain additional financing;
require the dedication of a substantial portion of any cash flow from operations to the
payment of principal of, and interest on, our indebtedness, thereby reducing the
availability of such cash flow to fund our growth strategy, working capital, capital
expenditures and other general corporate purposes;
limit our flexibility in planning for, or reacting to, changes in our business and our industry; and
place us at a competitive disadvantage relative to our competitors with less debt.
have entered into various over-the-counter cash-settled derivative transactions with
respect to our common stock, concurrently with, and shortly after, the pricing of the
notes; and
may enter into, or may unwind, various over-the-counter derivatives and/or purchase
or sell our common stock in secondary market transactions following the pricing of the
notes, including during any observation period related to a conversion of notes.
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retaining the customers and sales distribution channels of both companies, including
msystems OEM customers who compete with our branded products in retail channels;
maintaining employee morale and retaining key employees;
retaining the main sources of supply;
incorporating msystems technology and products into our business and future product lines;
integrating msystems sales force into our worldwide product sales network;
demonstrating to msystems customers that the merger will not result in adverse changes
in pricing, customer service standards or product support;
coordinating research and development activities to enhance introduction of new products and technologies;
integrating msystems internal control over financial reporting with our internal control over financial reporting;
migrating both companies to a common enterprise resource planning information system to
integrate all operations, sales and administrative activities for the combined companies in
a timely and cost effective way;
integrating msystems international operations with ours;
integrating the business cultures of both companies; and
ensuring there are no delays in releasing new products to market.
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Exhibit
Number
Exhibit Title
Agreement and Plan of Merger, dated as of October 20, 2005, by and among SanDisk Corporation, Mike
Acquisition Company LLC, Matrix Semiconductor, Inc. and Bruce Dunlevie as the stockholder
representative for the stockholders of Matrix Semiconductor, Inc.(1)
Agreement and Plan of Merger, dated as of July 30, 2006, by and among SanDisk Corporation, Project
Desert, Ltd. and msystems Ltd.(2)
Restated Certificate of Incorporation of the Registrant.(3)
Certificate of Amendment of the Restated Certificate of Incorporation of the Registrant dated
December 9, 1999.(4)
Certificate of Amendment of the Restated Certificate of Incorporation of the Registrant dated May
11, 2000.(5)
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the
Registrant dated May 26, 2006.(6)
Restated Bylaws of the Registrant, as amended to date.(7)
Certificate of Designations for the Series A Junior Participating Preferred Stock, as filed with
the Delaware Secretary of State on October 14, 1997.(8)
Amendment to Certificate of Designations for the Series A Junior Participating Preferred Stock, as
filed with the Delaware Secretary of State on September 24, 2003.(9)
Reference is made to Exhibits 3.1,
3.2 and 3.3.(3), (4), (5)
Rights Agreement, dated as of September 15, 2003, between the Registrant and Computershare Trust
Company, Inc.(9)
Amendment No. 1 to Rights Agreement, dated as of November 6, 2006,
by and between the Registrant and Computershare Trust Company, Inc.(11)
Flash Alliance Master Agreement, dated as of July 7, 2006, by and among the Registrant, Toshiba
Corporation and SanDisk (Ireland) Limited.(*), (+)
Operating Agreement of Flash Alliance, Ltd., dated as of July 7, 2006, by and between Toshiba
Corporation and SanDisk (Ireland) Limited.(*), (+)
Second Amended and Restated Common R&D and Participation Agreement, dated as of July 7, 2006, by
and between the Registrant and Toshiba Corporation.(*), (+)
Second Amended and Restated Product Development Agreement, dated as of July 7, 2006, by and
between the Registrant and Toshiba Corporation.(*), (+)
Flash Alliance Mutual Contribution and Environmental Indemnification Agreement, dated as of July
7, 2006, by and between Toshiba Corporation and SanDisk (Ireland) Limited.(*), (+)
Patent Indemnification Agreement, dated as of July 7, 2006, by and among the Registrant and the
other parties thereto.(*), (+)
Form of Voting Undertaking.(2)
Guarantee Agreement, dated as of September 22, 2006, by and among the Registrant, SMBC Leasing
Company, Limited and Toshiba Finance Corporation.(*)
Master Lease Agreement, dated as of September 22, 2006, by and among Flash Partners Limited
Company, SMBC Leasing Company, Limited, Toshiba Finance Corporation, Sumisho Lease Co., Ltd., Fuyo
General Lease Co., Ltd., Tokyo Leasing Co., Ltd., STB Leasing Co., Ltd. and IBJ Leasing Co.,
Ltd.(*), (+)
Agreement, dated as of September 28, 2006, by and among the Registrant, Bank Leumi Le Israel B.M.,
The Israel Corporation
Ltd., Alliance Semiconductor Corporation and Macronix International Co. Ltd.(10)
Agreement, dated as of September 28, 2006, by and among the Registrant, Bank Hapoalim B.M., The Israel Corporation Ltd.,
Alliance Semiconductor Corporation and Macronix International Co. Ltd.(10)
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
*
Filed herewith.
+
Confidential treatment has been requested with respect to certain portions hereof.
(1)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed with
the SEC on January 20, 2006.
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(2)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K/A filed
with the SEC on August 1, 2006.
(3)
Previously filed as an Exhibit to the Registrants Registration Statement on Form S-1
(No. 33-96298).
(4)
Previously filed as an Exhibit to the Registrants Form 10-Q for the quarter ended June
30, 2000.
(5)
Previously filed as an Exhibit to the Registrants Registration Statement on Form S-3
(No. 333-85686).
(6)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed with
the SEC on June 1, 2006.
(7)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed with
the SEC on April 10, 2006.
(8)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K/A dated
April 18, 1997.
(9)
Previously filed as an Exhibit to the Registrants Registration Statement on Form 8-A
dated September 25, 2003.
(10)
Previously filed as an Exhibit to the Registrants Form 13D/A dated October 12, 2006.
(11)
Previously filed as an Exhibit to the Registrants Registration Statement
on Form 8-A/A dated November 8, 2006.
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70
SANDISK CORPORATION
(Registrant)
By:
/s/ Judy Bruner
Judy Bruner
Executive Vice President, Administration and
Chief Financial Officer
(On behalf of the Registrant and as Principal
Financial and Accounting Officer)
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71
72
Exhibit
Number
Exhibit Title
Agreement and Plan of Merger, dated as of October 20, 2005, by and among SanDisk Corporation, Mike
Acquisition Company LLC, Matrix Semiconductor, Inc. and Bruce Dunlevie as the stockholder
representative for the stockholders of Matrix Semiconductor, Inc.(1)
Agreement and Plan of Merger, dated as of July 30, 2006, by and among SanDisk Corporation, Project
Desert, Ltd. and msystems Ltd.(2)
Restated Certificate of Incorporation of the Registrant.(3)
Certificate of Amendment of the Restated Certificate of Incorporation of the Registrant dated
December 9, 1999.(4)
Certificate of Amendment of the Restated Certificate of Incorporation of the Registrant dated May
11, 2000.(5)
Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the
Registrant dated May 26, 2006.(6)
Restated Bylaws of the Registrant, as amended to date.(7)
Certificate of Designations for the Series A Junior Participating Preferred Stock, as filed with
the Delaware Secretary of State on October 14, 1997.(8)
Amendment to Certificate of Designations for the Series A Junior Participating Preferred Stock, as
filed with the Delaware Secretary of State on September 24, 2003.(9)
Reference is made to Exhibits 3.1,
3.2 and 3.3.(3), (4), (5)
Rights Agreement, dated as of September 15, 2003, between the Registrant and Computershare Trust
Company, Inc.(9)
Amendment No. 1 to Rights Agreement, dated as of November 6, 2006,
by and between the Registrant and Computershare Trust Company, Inc.(11)
Flash Alliance Master Agreement, dated as of July 7, 2006, by and among the Registrant, Toshiba
Corporation and SanDisk (Ireland) Limited.(*), (+)
Operating Agreement of Flash Alliance, Ltd., dated as of July 7, 2006, by and between Toshiba
Corporation and SanDisk (Ireland) Limited.(*), (+)
Second Amended and Restated Common R&D and Participation Agreement, dated as of July 7, 2006, by
and between the Registrant and Toshiba Corporation.(*), (+)
Second Amended and Restated Product Development Agreement, dated as of July 7, 2006, by and
between the Registrant and Toshiba Corporation.(*), (+)
Flash Alliance Mutual Contribution and Environmental Indemnification Agreement, dated as of July
7, 2006, by and between Toshiba Corporation and SanDisk (Ireland) Limited.(*), (+)
Patent Indemnification Agreement, dated as of July 7, 2006, by and among the Registrant and the
other parties thereto.(*), (+)
Form of Voting Undertaking.(2)
Guarantee Agreement, dated as of September 22, 2006, by and among the Registrant, SMBC Leasing
Company, Limited and Toshiba Finance Corporation.(*)
Master Lease Agreement, dated as of September 22, 2006, by and among Flash Partners Limited
Company, SMBC Leasing Company, Limited, Toshiba Finance Corporation, Sumisho Lease Co., Ltd., Fuyo
General Lease Co., Ltd., Tokyo Leasing Co., Ltd., STB Leasing Co., Ltd. and IBJ Leasing Co.,
Ltd.(*), (+)
Agreement, dated as of September 28, 2006, by and among the Registrant, Bank Leumi Le Israel B.M.,
The Israel Corporation
Ltd., Alliance Semiconductor Corporation and Macronix International Co. Ltd.(10)
Agreement, dated as of September 28, 2006, by and among the Registrant, Bank Hapoalim B.M., The Israel Corporation Ltd.,
Alliance Semiconductor Corporation and Macronix International Co. Ltd.(10)
Certification of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
*
Filed herewith.
+
Confidential treatment has been requested with respect to certain portions hereof.
(1)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed with
the SEC on January 20, 2006.
(2)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K/A filed
with the SEC on August 1, 2006.
(3)
Previously filed as an Exhibit to the Registrants Registration Statement on Form S-1
(No. 33-96298).
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(4)
Previously filed as an Exhibit to the Registrants Form 10-Q for the quarter ended June
30, 2000.
(5)
Previously filed as an Exhibit to the Registrants Registration Statement on Form S-3
(No. 333-85686).
(6)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed with
the SEC on June 1, 2006.
(7)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K filed with
the SEC on April 10, 2006.
(8)
Previously filed as an Exhibit to the Registrants Current Report on Form 8-K/A dated
April 18, 1997.
(9)
Previously filed as an Exhibit to the Registrants Registration Statement on Form 8-A
dated September 25, 2003.
(10)
Previously filed as an Exhibit to the Registrants Form 13D/A dated October 12, 2006.
(11)
Previously filed as an Exhibit to the Registrants Registration Statement
on Form 8-A/A dated November 8, 2006.
1. Definitions and Interpretation
|
1 | |||
|
||||
2. Closing and Post-Closing Transactions
|
4 | |||
|
||||
3. Purpose of Flash Alliance
|
7 | |||
|
||||
4. Representations and Warranties of the Parties
|
8 | |||
|
||||
5. Covenants
|
11 | |||
|
||||
6. Covenants concerning NAND Flash Memory Products Business
|
13 | |||
|
||||
7. Other Agreements
|
28 | |||
|
||||
8. Termination
|
32 | |||
|
||||
9. Miscellaneous
|
38 |
1. | Definitions and Interpretation. | |
1.1 | Certain Definitions . | |
(a) | Capitalized terms used but not defined in this Agreement shall have the respective meanings assigned to them in Appendix A (Definitions, Rules of Construction and General Terms and Conditions). | |
(b) | As used herein, the term Agreement means this Flash Alliance Master Agreement together with any Exhibits, Schedules, Appendices and Attachments hereto. | |
1.2 | Additional Definitions . The following capitalized terms used in this Agreement shall have the respective meanings assigned in this Agreement: |
1
Term | Defined In | |
Acquiring Party
|
Section 8.1(d) | |
Alternative Use
|
Section 6.5(c)(i) | |
Amendment No. 4 to Patent Cross License Agreement
|
Section 2.1(c)(iii) | |
Appointing Party
|
Section 6.9(b)(i) | |
[
*
]
|
Section 6.5(c)(ii)(B) | |
Closing
|
Section 2.1(a) | |
Committee Representatives
|
Section 6.9(b)(i) | |
Common R&D Agreement
|
Section 2.1(c)(i) | |
Common R&D Development Expenses
|
Section 6.8(a)(i) | |
Costs
|
Section 6.5(c)(i) | |
Cross License Agreement
|
Section 2.1(c)(iii) | |
Defaulting Party
|
Section 6.12(d) | |
EC Party/Excess Capacity Party
|
Section 6.7(b)(i) | |
Embedded NAND Product
|
Section 6.7(c)(ii) | |
Employer
|
Section 6.10(b)(vii) | |
Engineers
|
Section 6.10 | |
Environmental Indemnification Agreement
|
Section 2.1(b)(vii) | |
Equipment
|
Section 6.5(c)(i) | |
Evaluation Wafers
|
Section 6.8(a)(iii) | |
Financing
|
Section 6.12(b)(iii) | |
Flash Alliance
|
Section 2.1(b) | |
FA Foundry Agreement
|
Section 2.1(b)(iv) | |
FA Operating Agreement
|
Section 2.1(b)(ii) | |
FA Operative Documents
|
Section 2.1(b) | |
FA Patent Indemnification Agreement
|
Section 2.1(b)(vi) | |
FA Termination Date
|
Section 8.1(b) | |
FA Shares
|
Section 4.2(a) | |
FP Master Agreement
|
Recitals | |
FP NAND Flash Memory Products
|
Section 3.3(a) | |
FVC Japan Master Agreement
|
Recitals | |
FVC Japan NAND Flash Memory Products
|
Section 3.3(a) | |
Headcount Plan
|
Section 6.10 |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
2
Term | Defined In | |
ICs
|
Section 3.2 | |
Intellectual Property
|
Section 4.7 | |
Investing Party
|
Section 6.5(c)(i) | |
Joint Operative Documents
|
Section 2.1(c) | |
Lease Agreement
|
Section 2.1(b)(viii) | |
Management Committee
|
Section 6.9 | |
Minimum RUP Commitment
|
Section 6.5(c)(i) | |
Master Operative Documents
|
Section 2.2 | |
NAND Flash Memory Integrated Circuits
|
Section 6.13 | |
NAND Flash Memory Products
|
Section 3.2 | |
NAND Process Technology
|
Section 6.3(a) | |
Non-Defaulting Party
|
Section 6.12(d) | |
Non-Investing Party
|
Section 6.5(c)(i) | |
Non-Originating Party
|
Section 6.7(e) | |
Originating Party
|
Section 6.7(e) | |
Parties
|
Heading | |
Product Development Agreement
|
Section 2.1(c)(ii) | |
Proprietary NAND Flash Memory Products
|
Section 6.7(d) | |
Purchase and Supply Agreements
|
Section 2.1(b)(v) | |
Qualification Wafers
|
Section 6.8(a)(iv) | |
Ramp-Up Plan
|
Section 6.5(b) | |
Remaining Y4 Personnel
|
Section 8.1(j) | |
Requesting Party
|
Section 8.1(d)(i) | |
[
*
]
|
Section 6.5(c)(ii) | |
[*]
|
Section __ | |
SanDisk
|
Heading | |
SanDisk Corporation
|
Heading | |
SanDisk Financing
|
Section 6.12(b)(iii) | |
SanDisk Ireland
|
Heading | |
SanDisk Purchase and Supply Agreement
|
Section 2.1(b)(v) | |
SanDisk Team
|
Section__ | |
SanDisk Termination Capacity
|
Section 8.1(e)(i) | |
Selling Party
|
Section 8.1(d) |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
3
Term | Defined In | |
Share Purchase Agreement
|
Section 2.1(b)(i) | |
Start-Up Costs
|
Section 6.4 | |
Termination Capacity
|
Section 8.1(d)(i) | |
Third Party Sale
|
Section 6.5(c)(i) | |
Toshiba
|
Heading | |
Toshiba Financing
|
Section 6.12(b)(iii) | |
Toshiba Foundry NAND Flash Memory Products
|
Section 3.3(a) | |
Toshiba Purchase and Supply Agreement
|
Section 2.1(b)(v) | |
Toshiba-SanDisk Services Agreement
|
Section 2.1(b)(ix) | |
[
*
]
|
Section __ | |
Y3 NAND Flash Memory Products
|
Section 3.3(a) | |
Y3 Ramp-Up Plan
|
Section __ | |
Y4 Direct R&D Development Products
|
Section 6.8(a)(ii) | |
Y4 Facility
|
Section 3.1 | |
Y4 Facility Target Capacity
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Section 7.3(b) | |
Y4 NAND Flash Memory Products
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Section 3.3(a) | |
Y4 Staff
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Section 8.1(j) | |
[*]
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Section __ |
1.3 | Rules of Construction and Documentary Conventions . The rules of construction and documentary conventions and general terms and conditions set forth in Appendix A shall apply to this Agreement. | |
1.4 | Precedence . The terms and provisions of this Agreement are binding on the Parties; provided , however , that to the extent that a description in this Agreement of another agreement (whether an FA Operative Document or otherwise) conflicts with or differs from the provisions of that agreement, then the provisions of that agreement shall control as to such conflict or difference. | |
2. Closing and Post-Closing Transactions | ||
2.1 | Closing Transactions . | |
(a) | Closing . The Parties shall effect the transactions set forth in this Section 2.1, all of which shall be considered to occur on the date hereof unless otherwise stipulated (the effecting of such transactions, collectively, the Closing ). |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(b) | Flash Alliance Documents . Unless otherwise indicated in this Section 2.1(b), as of the Closing Date, the Parties shall enter into or cause to be entered into or otherwise become effective the following agreements and documents (collectively with this Agreement, the FA Operative Documents ) to apply to their joint development, manufacture and selling of Y4 NAND Flash Memory Products by and through Flash Alliance, Ltd., a Japanese tokurei yugen kaisha ( Flash Alliance ) (the description of each document below is for reference only and shall not be used in interpreting any such document): |
(i) | a Share Purchase Agreement between Toshiba and SanDisk Ireland, dated as of the date hereof, in the form of Exhibit A1 (the Share Purchase Agreement ), and which concerns the sale by Toshiba and purchase by SanDisk Ireland at the Closing of 49.9% of the FA Shares; | ||
(ii) | an Operating Agreement between Toshiba and SanDisk Ireland, dated as of the date hereof, in the form of Exhibit A2 (the FA Operating Agreement ), and which concerns governance of Flash Alliance; | ||
(iii) | Articles of Incorporation of Flash Alliance in the form of Exhibit A to the FA Operating Agreement; | ||
(iv) | a Foundry Agreement, dated as of the date hereof, between Flash Alliance and Toshiba in the form of Exhibit A3 (the FA Foundry Agreement ); | ||
(v) | a Purchase and Supply Agreement, dated as of the date hereof, by and between Flash Partners and SanDisk Ireland, in the form of Exhibit A4-1 (the SanDisk Purchase and Supply Agreement ) and a Purchase and Supply Agreement, dated as of the date hereof, between Flash Alliance and Toshiba in the form of Exhibit A4-2 (the Toshiba Purchase and Supply Agreement and together with the SanDisk Purchase and Supply Agreement, the Purchase and Supply Agreements ), and which concern the forecasting and purchase commitments by SanDisk Ireland and Toshiba, respectively, of Y4 NAND Flash Memory Products; | ||
(vi) | a Patent Indemnification Agreement between SanDisk Corporation, [ * ] and Toshiba, dated as of the date hereof, in the form of Exhibit A5 (the FA Patent Indemnification Agreement ), and which concerns patent indemnification obligations of Toshiba in favor of SanDisk, and certain contribution obligations of SanDisk with respect to Y4 NAND Flash Memory Products; |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(vii) | a Mutual Contribution and Environmental Indemnification Agreement between SanDisk Ireland and Toshiba, dated as of the date hereof, in the form of Exhibit A6 (the Environmental Indemnification Agreement ), and which concerns indemnification obligations of the parties thereto in favor of one another with respect to Flash Alliance and the Yokkaichi Facility; | ||
(viii) | a Lease Agreement between Flash Alliance and Toshiba, as owner of the Yokkaichi Facility, dated as of the date hereof, in the form of Exhibit A7 (the Lease Agreement ), and which concerns the leasing of Flash Alliances equipment to Toshiba as owner of the Yokkaichi Facility; | ||
(ix) | a Services Agreement between SanDisk Ireland and Toshiba, dated as of the date hereof, in the form of Exhibit A8 ( Toshiba-SanDisk Ireland Services Agreement ), and which concerns Toshibas provision of certain services to SanDisk and SanDisk Irelands payment to Toshiba for such services; | ||
(x) | a Services Agreement between Flash Alliance and Toshiba, as owner of the Yokkaichi Facility, dated as of the date hereof, in the form of Exhibit A9 (the Toshiba-Flash Alliance Services Agreement ), and which concerns Toshibas provision of certain services to Flash Alliance and Flash Alliances payment to Toshiba for such services; and | ||
(xi) | a Services Agreement between Flash Alliance and SanDisk Ireland, dated as of the date hereof, in the form of Exhibit A10 ( SanDisk Ireland-Flash Alliance Services Agreement ), and which concerns SanDisk Irelands provision of certain services to Flash Alliance and Flash Alliances payment to SanDisk Ireland for such services. |
(c) | Joint Operative Documents . The Parties acknowledge and agree that the following agreements shall remain in force or be amended or executed as indicated below and shall apply generally to the Parties collaboration with respect to NAND Flash Memory Products and related products (collectively, the Joint Operative Documents ): |
(i) | the Second Amended and Restated Common R&D and Participation Agreement, dated as of the date hereof, between SanDisk Corporation and Toshiba (the Common R&D Agreement ), a copy of which is Exhibit B1 and which concerns collaboration between the Parties with respect to research and development activities; | ||
(ii) | the Second Amended and Restated Product Development Agreement, dated as of the date hereof, between the SanDisk Corporation and Toshiba (the Product Development Agreement ), a copy of which is Exhibit B2 and which concerns collaboration between the Parties with respect to product development activities; and |
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(iii) | an Amendment No. 4 to Patent Cross License Agreement, dated as of the date hereof, between SanDisk Corporation and Toshiba (the Amendment No. 4 to Patent Cross License Agreement ), a copy of which is Exhibit B3 , amending that certain Patent Cross License Agreement between SanDisk Corporation and Toshiba, dated as of July 30, 1997 (as amended by Amendment No. 1 to Patent Cross License Agreement, dated as of May 9, 2000, Amendment No. 2 to Patent Cross License Agreement, dated as of April 10, 2002, and Amendment No. 3 to Patent Cross License Agreement, dated as of September 10, 2004, the Cross License Agreement ), and which concerns certain patent licenses granted by SanDisk Corporation and Toshiba to one another. |
2.2 | Further Assurances . Following the Closing, each Party shall, and shall cause its Affiliates and Flash Alliance to, take all reasonable actions necessary or appropriate to effectuate the transactions contemplated by this Agreement, the FA Operative Documents and the Joint Operative Documents (collectively, the Master Operative Documents ), and to obtain (and cooperate with the other Party in obtaining) any Governmental Action or third party consent required to be obtained or made by it in connection with any of the transactions contemplated by the Master Operative Documents; provided , that no Burdensome Condition shall be made to exist with respect to such Party or any of its Affiliates in connection therewith. | |
2.3 | Continuation of FVC Japan and FP Documents . The Parties agree that unless otherwise expressly stated herein (A) neither the FVC Japan Operative Documents nor the FP Operative Documents shall affect the interpretation of this Agreement, the governance or operation of Flash Alliance or the Y4 Facility and (B) the FA Operative Documents shall not affect the interpretation of the FVC Japan Master Agreement, the FP Master Agreement, the governance or operation of FVC Japan or the FVC Japan Equipment or the governance or operation of Flash Partners; provided , however , that Section 6.3(c)(iv) of the FP Master Agreement is hereby amended to preclude expansion under Section 6.4(a)(ii)(c) of the FP Master Agreement. | |
3. | Purpose of Flash Alliance | |
3.1 | Purpose . The Parties acknowledge and agree that the purpose of the Master Operative Documents and Flash Alliance is the manufacture, including by subcontract to Toshiba pursuant to the FA Foundry Agreement, and sale to Toshiba and SanDisk Ireland of NAND Flash Memory Products manufactured at the facility of Flash Alliance known by the Parties as Y4 (the Y4 Facility ), which is a part of the Yokkaichi Facility (defined in Appendix A ). | |
3.2 | NAND Flash Memory Products. NAND Flash Memory Products are NAND (both binary and MLC Flash Memory) Flash Memory Integrated Circuits ( ICs ), excluding any products with process design rules generally greater than .25 microns. Embedded ICs incorporating NAND Flash Memory Products shall be |
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considered to constitute NAND Flash Memory Products if the main function and value of such IC is flash memory, but shall not be considered to constitute NAND Flash Memory Products if the main function and value of such IC is logic. For the purpose of the foregoing, the main function and value of any product shall be considered to be flash memory if (x) the total NAND flash memory array area is greater than [ * ]of the total die area or (y) the product is a cut-down or derivative of a standard NAND Flash Memory Product. |
3.3 | Products . | |
(a) | NAND Flash Memory Products manufactured at the Y4 Facility are referred to as Y4 NAND Flash Memory Products ; NAND Flash Memory Products manufactured at the Y3 Facility are referred to as Y3 NAND Flash Memory Products; NAND Flash Memory Products manufactured for FVC Japan using the FVC Japan Equipment are referred to as FVC Japan NAND Flash Memory Products; and NAND Flash Memory Products manufactured at the Toshiba Foundry Facility (defined in Appendix A ) are referred to as Toshiba Foundry NAND Flash Memory Products . | |
(b) | Each Party shall be permitted to market and sell all NAND Flash Memory Products to any third party in any form, including chips, packaged devices, wafers, die and cards. | |
4. Representations and Warranties of the Parties | ||
Except as may be disclosed in disclosure schedules attached to this Agreement, each Party represents and warrants to the other Party, as of the Closing, as follows: | ||
4.1 | Organization, Ownership Interest, etc. | |
(a) | It and each of its Affiliates that is a party to any Master Operative Document is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization or incorporation and has the power and authority to carry on its business as conducted on the date hereof, to own or hold under lease its properties and to enter into and perform its obligations under each Master Operative Document to which it is a party. | |
(b) | It and each of its Affiliates that is a party to any Master Operative Document is duly qualified to own or lease its properties and generally to conduct its business as currently, or proposed under the Master Operative Documents to be, conducted in each jurisdiction necessary for purposes of the transactions contemplated by the |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Master Operative Documents, except where failure to so qualify would not have a material adverse effect on either Party or Flash Alliance. |
4.2 | Authorization; No Conflict . | |
(a) | It and each of its Affiliates has duly authorized by all necessary action (i) the execution, delivery and performance of each Master Operative Document to which it or any of its Affiliates is a party and (ii) the exercise of its rights as a holder of shares ( kabushiki ) of Flash Alliance (the FA Shares ) to approve the execution, delivery and performance by Flash Alliance of each Master Operative Document to which it is a party and for which the approval of the holders of FA Shares is required. | |
(b) | Its and each of its Affiliates execution and delivery of each Master Operative Document to which it is a party, its and each of its Affiliates consummation of the transactions contemplated thereby and its and each of its Affiliates compliance therewith does not and will not (i) require any approval of its or any of such Affiliates stockholders or any approval or consent of any trustee or holder of any of its or any of such Affiliates Indebtedness or obligations, (ii) contravene any Governmental Rule applicable to or binding on it or any of such Affiliates or any of its or their properties if such contravention would have a material adverse effect on it or any of such Affiliates or on its or their ability to perform any of its or any of such Affiliates obligations under any Master Operative Document, (iii) contravene or result in any breach of, or constitute any default, with or without the passage of time, the giving of notice or both, under its charter or by-laws, or contravene or result in any breach of or constitute any default under, or result in the creation of any Lien (other than Permitted Liens) upon any of its or any of such Affiliates property or the property of Flash Alliance under, any material indenture, mortgage, chattel mortgage, deed of trust, conditional sales contract, loan or credit agreement, non-compete agreement, license agreement, partnership or joint venture agreement or other material agreement or document to which it or any of such Affiliates is a party or by which it or any of such Affiliates or any of its or their properties is or is intended to be bound or by which Flash Alliance or any of its properties is or is intended to be bound, (iv) require any negotiation with, or notice to, any labor union or violate, or require any procedure to be followed under, any collective bargaining or other agreement with employees or (v) require any Governmental Action (other than immaterial Governmental Actions such as routine qualifications to do business intended to be obtained as needed or Governmental Actions needed in connection with the construction and operation of the Y4 Facility), except, in each case described in clauses (i) through (v) above, such as have been duly obtained, made, taken or otherwise accomplished and which are in full force and effect. All consents and approvals of any Governmental Authority (other than immaterial Governmental Actions such as routine qualifications to do business intended to be obtained as needed or Governmental Actions needed in connection with the operation of the Y4 Facility) or other third Person necessary or advisable for such |
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Party or any of its Affiliates to consummate in all material respects the transactions contemplated by the Master Operative Documents have been obtained. No Burdensome Condition exists with respect to such Party, any of its Affiliates or Flash Alliance in connection with the transactions contemplated by the Master Operative Documents. |
4.3 | Enforceability . | |
(a) | It has duly executed and delivered this Agreement and, upon the execution and delivery of this Agreement by the other Party, this Agreement will constitute its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors rights generally or the availability of equitable remedies (regardless of whether enforceability is considered in a proceeding at law or in equity). | |
(b) | It and each of its Affiliates have duly executed and delivered each other Master Operative Document to which it or any such Affiliate is a party and, upon the execution and delivery of each such other Master Operative Document by each other party thereto, each such other Master Operative Document will constitute its legal, valid and binding obligation, enforceable against it or its Affiliates in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors rights generally or the availability of equitable remedies (regardless of whether enforceability is considered in a proceeding at law or in equity). | |
4.4 | Proceedings . There are no actions, claims, investigations or proceedings pending, or to its knowledge threatened, by or before any Governmental Authority that, if adversely determined, would have a material adverse effect on it or any of its Affiliates that is a party to any Master Operative Document or, on the conduct of the business of Flash Alliance following the Closing as contemplated in the Master Operative Documents or on it or any of its Affiliates ability to perform any material obligation under any Master Operative Document. | |
4.5 | Litigation; Decrees . Except as set forth in Schedule 4.5 , there are no lawsuits, arbitrations or other legal proceedings pending, or to its knowledge threatened, by or against or affecting it or any of its Affiliates or any of their respective properties that (i) are reasonably likely, based on information known to it as of the date hereof, to have a material adverse effect on the conduct of the business of Flash Alliance following the Closing as contemplated by the Master Operative Documents or (ii) relate to any of the transactions contemplated by the Master Operative Documents in a manner which is material to it, any of its Affiliates or Flash Alliances ability of it to carry out the transactions contemplated hereby and in the FA Operative Documents or which could have a material adverse effect on the conduct of the business of Flash Alliance following the Closing as contemplated in the Master Operative Documents. |
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4.6 | Compliance with Other Instruments . Neither it nor any of its Affiliates that is a party to any Master Operative Document is in default in any material respect in the performance of any material obligation, agreement, instrument or undertaking to which it or any of its Affiliates is a party or by which it or any of its Affiliates or any of its of their properties is bound, and there is no such obligation, agreement, instrument or undertaking to which it or any of its Affiliates is a party or by which it or any of its Affiliates or any of its or their properties is bound, in each case which is reasonably likely to have a material adverse effect on the conduct of the business of Flash Alliance following the Closing as contemplated by the Master Operative Documents. | |
4.7 | Patents and Proprietary Rights . Except as set forth in Schedule 4.7 , to its knowledge, it owns or possesses sufficient legal rights to all patents, utility models, trademarks, service marks, trade names, copyrights, applications for any of the foregoing, mask works, software, trade secrets, licenses, information and proprietary rights and processes (collectively, Intellectual Property ) necessary (i) to carry out its or any of its Affiliates obligations under the Master Operative Documents and (ii) for the conduct of the business of Flash Alliance following the Closing as contemplated in the Master Operative Documents, without any conflict with or infringement of the rights of others, except as will not have a material adverse effect on either (i) or (ii) above. Except with respect to items referenced in Schedule 4.7 , it has not received any communications alleging that its Intellectual Property violates, or by its or any of its Affiliates entering into the transactions contemplated by the Master Operative Documents, would violate the Intellectual Property of any other Person or entity, which violation could reasonably be expected to have a material adverse effect on either (i) or (ii) above. | |
4.8 | Compliance with Laws . It and each of its Affiliates has complied and is complying in all material respects with all laws, statutes, permit requirements, licensing requirements, rules and regulations and judicial or administrative decisions, except where the failure to so comply would not have a material adverse effect on its or any of its Affiliates ability to perform its or their obligations hereunder or under any other Master Operative Document or on the conduct of the business of Flash Alliance following the Closing as contemplated by the Master Operative Documents. | |
4.9 | Patent Cross Licenses . Except as set forth on Schedule 4.9 , with respect to (a) Toshiba, there are no patent cross licenses between it and any third party that would require Flash Alliance to make any payment pursuant to Section 10 of the Cross License Agreement, and (b) SanDisk, there are no patent cross licenses between it and any third party that would require Flash Alliance to make any payment pursuant to Section 8 of the Cross License Agreement. | |
5. | Covenants | |
5.1 | Covenants of the Parties . Each Party agrees that, during the term of this Agreement: |
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(a) | Performance of Obligations . It and each of its Affiliates shall fully and faithfully carry out (i) all its obligations under each Master Operative Document to which it or any Affiliate is a party, and (ii) once agreed, each applicable Business Plan (as defined in the FA Operating Agreement). | |
(b) | Ownership Interest . Except as otherwise expressly permitted by the FA Operating Agreement and this Agreement, it shall not Transfer or permit any of its Affiliates to Transfer all or any portion of its FA Shares (or all or any portion of its interest in any Affiliate through which it beneficially owns its FA Shares), to any Person without the consent of the other Party. | |
5.2 | Public Announcements . | |
(a) | At or following the Closing, neither Party shall, nor shall it permit any of its Affiliates to, without the prior written consent of the other Party: |
(i) | issue any public release, announcement or other document, or otherwise publicly disclose any information or make any public statement, concerning the operations of Flash Alliance or that refers to the other Party or any of its Affiliates in connection therewith (other than a general reference to affiliation with Flash Alliance) that (A) concerns the financial condition or results of operations of Flash Alliance other than as required by any Governmental Rule, Japanese GAAP, Japanese GAAS, US GAAP or US GAAS, with respect to the financial disclosure obligations of either Party or (B) disparages either Party, or Flash Alliances performance or reflects negatively on either Partys commitment to either of Flash Alliance; or | ||
(ii) | other than as may be required in connection with filings required to be made with Governmental Authorities with respect to the transactions contemplated by the FA Operative Documents pursuant to the Japanese Foreign Exchange and Foreign Trade Law and related regulations, (A) publicly file all or any part of any Master Operative Document or any description thereof or (B) issue or otherwise make publicly available any press release, announcement or other document that contains Confidential Information belonging to the other Party (or its Affiliates) or Flash Alliance, except as may be required by any applicable Governmental Rule, in which case such Party shall (or shall cause the Person required to make such filing to) cooperate with the other Party, to the extent reasonable and practicable, in obtaining any confidential treatment for such filing requested by the other Party. |
(b) | Each Party shall use commercially reasonable efforts to grant or deny any approval required under this Section 5.2 within five (5) days of receipt of written request by the other Party; provided , however , a Partys failure to respond within said time period shall not be deemed to constitute such Partys approval or consent. |
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5.3 | Expenses . Each Party shall bear its own expenses in connection with the negotiation, execution and delivery of the Master Operative Documents. | |
5.4 | Undertaking as to Affiliate Obligations . Each Party shall cause all covenants, conditions and agreements to be performed, observed or satisfied by each of its Affiliates that is a party to any Master Operative Documents to be fully and faithfully observed, performed and satisfied by such Affiliate, and shall not cause or permit to exist (i) an Event of Default with respect to such Affiliate or (ii) except as otherwise permitted by the FA Operating Agreement, any event of dissolution of Flash Alliance caused by such Affiliate. Nothing in Section 5.1 or in this Section 5.4 shall be construed to create any right in any Person other than the Parties. Without limiting the generality of the foregoing, SanDisk hereby guarantees the obligations of SanDisk Ireland hereunder and under any Master Operative Document to which SanDisk Ireland is a party. | |
5.5 | Continuity and Maintenance of Operations . During the term of this Agreement, each Party agrees on behalf of itself and each of its Affiliates that is a party to any Master Operative Document to use all reasonable efforts consistent with past practice and policies to (i) preserve intact in all material respects its and their present business operations, (ii) keep available the services of its and their key employees as a group, and (iii) preserve its relationships with suppliers, licensors, licensees, and others having business relationships with it or them, each to the extent necessary to allow it and such Affiliates to perform its and their obligations under the Master Operative Documents and to allow Flash Alliance to conduct its business as contemplated in its most recently approved Business Plan. | |
5.6 | Certain Deliveries and Notices . Each Party shall promptly inform in writing the other Party of (i) any event or occurrences which could be reasonably expected to have a material adverse effect on its or any of its Affiliates ability to perform its or their obligations under any of the Master Operative Documents or the ability of Flash Alliance to conduct its business as contemplated in its most recently approved Business Plan, or (ii) any breach or failure to satisfy any condition or covenant contained herein or in any other Master Operative Document by such Party or any of its Affiliates. | |
6. | Covenants concerning NAND Flash Memory Products Business | |
6.1 | New Technology Development . | |
(a) | Immediately after the Effective Date, each Party shall designate three (3) appropriate individuals who will constitute the Common R&D Representatives. The Common R&D Representatives will meet regularly (quarterly) to review, discuss and determine direction of NAND future project plans and SanDisk participation in the Development Work (as defined in the Common R&D Agreement). SanDisk will send, and Toshiba will receive, such number of SanDisk Personnel as are mutually agreed upon, at AMC or other Toshiba facilities during the term of the Common R&D Agreement in order for SanDisk to |
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participate in the Development Work. The Parties have agreed to encourage utilization of tool vendors to perform Development Work where it is effective to do so. | ||
(b) | Provided Toshiba continues to develop and advance NAND Flash Memory technology for the benefit of both parties pursuant to the FVC Japan Operative Documents, the FP Operative Documents, the FA Operative Documents and the other Joint Operative Documents, SanDisk agrees to share Toshibas Common R&D expenditures and shall pay to Toshiba its portion of such Common R&D expenditures as detailed in the Common R&D Agreement. | |
6.2 | Purchased Tools . All tools for the Y4 Facility shall be purchased by Flash Alliance (or a lessor for Flash Alliances benefit as contemplated by Section 6.12(a)) and all such purchases shall be agreed upon by the Parties. Toshiba shall, from the Toshiba Semiconductor Company headquarters and at its own expense, provide Flash Alliance with tool purchase service and support and negotiate with vendors on Flash Alliances behalf, and SanDisk shall have the right to participate in such negotiations or other tool purchase activities of Toshiba, at SanDisks own expense. For such purpose, a joint SanDisk/Toshiba tool procurement team ( Joint Tool Procurement Team ) will be formed and each member of the team will have total participation, visibility and responsibility in tool selection and procurement negotiations, including tool evaluation activities of the Joint Procurement Team. Toshiba Semiconductor Company will provide to Flash Alliance the full benefit of its volume purchase agreements in order to maximize efficiency and minimize costs. Immediately after the effective date of this Agreement, the Parties will establish a process that enables equal participation and equal decision making by the Parties in tool evaluation and purchase (depending on SanDisks ability to participate). | |
6.3 | Technology Transfers . | |
(a) | Toshiba will make available to Flash Alliance its 70 nanometer [ * ] process technology applicable to the manufacturing and testing of NAND Flash Memory Products ( NAND Process Technology ) on the fastest practicable schedule. All technology transfers will be jointly reviewed and discussed by the Parties and all technology transfers will be made in a mutually satisfactory manner, provided that all process integration for new processes will be led by Toshiba employees at the Yokkaichi Facility to the extent reasonably possible. Toshiba will cause its employees, including its advanced microelectronics center employees, to cooperate in achieving an efficient transition from development module to operating process and volume production. Substantially all tests for 300 |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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millimeter NAND technology will be conducted at the pilot line established at the Y3 Facility or Y4 Facility. | ||
(b) | Whenever a technology transfer is required hereunder, Toshiba shall deliver such level of NAND Process Technology to the Y4 Facility as would be normal practice by the Toshiba Semiconductor Company whenever it transfers a technology to a new manufacturing facility or transfers a new or advanced technology to an existing manufacturing facility in order to achieve successful implementation of the newly transferred technology. | |
(c) | A technology transfer hereunder shall be deemed complete when the transferred technology passes a reasonable qualification procedure to be mutually agreed upon by the Parties. | |
(d) | [*] | |
(e) | [*] | |
6.4 | Start-Up Services for Y4 . The Parties acknowledge that either or both of the Parties and Flash Alliance have incurred or will incur costs in connection with developing Flash Alliance and the Y4 Facility and preparing the Y4 Facility for production, including personnel costs, materials costs and other operating expenses, that are properly allocable to Flash Alliance and for which each Party has the obligation ultimately to bear 50% of the responsibility ( Start-Up Costs ). The Parties shall discuss in good faith and agree upon the Start-Up Costs, the allocation to Flash Alliance of Start-Up Costs borne by either Party and the means and timing of each Party, as applicable, being reimbursed or credited for having incurred more than 50% of the Start-Up Costs or of making payments due to having incurred less than 50% of the Start-Up Costs. | |
6.5 | Y4 Facility Ramp-Up Plan . | |
(a) | Equal Participation and Purchase Price Per Unit . The Parties intend to meet demand for increased capacity by equally investing in, and jointly building, and sharing, on equal or substantially equal terms, equal amounts of new capacity for Y4 NAND Flash Memory Products, except as they may otherwise agree as contemplated herein. Where the Parties purchase the same output volume of equivalent Y4 NAND Flash Memory Products, the Parties will pay the same purchase price per unit. | |
(b) | Ramp-Up Plan . The Parties acknowledge that they intend to expand their Y4 NAND Flash Memory Product manufacturing capacity through development of the Y4 Facility according to volumes and timing set forth in Schedule 6.5(b) (including to [ *]L/M, the Ramp-Up Plan ). The Parties will discuss in good faith whether the production capacity of Y4 should be expanded by the Parties toward the Y4 Facilitys targeted capacity of approximately [*] L/M. |
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(c) | Ramp-Up Plan Commitments and Changes . The Parties agree as follows concerning the Ramp-Up Plan: |
(i) | The initial 1,000 L/M in aggregate increases in production capacity of the Y4 Facility identified on the Ramp-Up Plan shall be considered firmly committed by each Party (i.e., 500 L/M each) as of the times specified in the Ramp-Up Plan and in accordance with this Section 6.5(c)(i) (the Minimum RUP Commitment ). The Parties shall agree upon one or more Business Plans that provide for implementing the [ * ]. | ||
[*] | |||
(ii) | [*] | ||
(A) [*] | |||
(B) [*] | |||
(iii) | [*] | ||
(iv) | [*] | ||
(A) [*] | |||
(B) [*] |
6.6 | Capacity . | |
(a) | Priority . |
(i) | [* ] | ||
(A) [* ] | |||
(B) [*] | |||
(C) [*] | |||
(D) [*] | |||
(E) [*] |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(ii) | [ * ] | ||
(A) [*] | |||
(B) [*] | |||
(C) [*] | |||
(D) [*] | |||
(E) [*] | |||
(iii) | [*] |
(b) | [*] | |
(c) | Technology Transfer . If the Parties mutually agree to secure external manufacturing sources other than the Yokkaichi Facility through joint investment, Flash Alliance and Toshiba, as applicable, will jointly transfer the applicable manufacturing technology and know-how to such source. Flash Alliance and Flash Partners (with respect to 300 millimeter wafers) and FVC Japan (with respect to 200 millimeter wafers) will conduct all negotiations with the external manufacturing source; provided , however , the terms and conditions of any agreement shall be subject to prior consultation with and the approval of Toshiba. In connection with any technology transfer to such external source, Toshiba will be reimbursed its mutually agreed transfer costs for assisting in the transfer of manufacturing technology and know-how. If the new capacity secured at such external manufacturing source is requested by only one of the Parties, such Party will pay the transfer costs and be entitled to purchase the full output of NAND Flash Memory Products purchased by FVC Japan, Flash Partners or Flash Alliance, as applicable, from such external manufacturing source. If both Parties request such new external capacity, then FVC Japan, Flash Partners or Flash Alliance, as applicable, will pay the transfer costs to Toshiba. Neither Party shall have the right to grant manufacturing licenses to such external manufacturing source or to disclose or transfer to any such external manufacturing source, manufacturing know-how related to the manufacture of NAND Flash Memory Products, except through FVC Japan, Flash Partners or Flash Alliance. | |
6.7 | Capacity Sharing Arrangement . | |
(a) | Equal right to capacity . Subject to Section 6.5(c), each of the Parties will have the right and obligation, through Flash Alliance, to utilize 50% of the wafers produced at the Y4 Facility based on a measure of equivalent lots out per week |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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with the equivalency being weighed based on the process complexity factors (as calculated by a formula to be mutually determined by the Parties) of the Y4 NAND Flash Memory Products. | ||
(b) | Alternative use of allotted capacity . |
(i) | If a Party is unable to utilize its allotted manufacturing capacity for Y4 NAND Flash Memory Products (such Party, an Excess Capacity or EC Party ), it may do any of the following: |
(A) | An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion. | ||
(B) | An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c). | ||
(C) | An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d) and (e). |
If an EC Party is not able to utilize or transfer its allotted capacity pursuant to Section 6.7(b), it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance an under-utilization fee in accordance with a formula to be mutually determined by the Parties). | |||
(ii) | If both Parties are EC Parties because demand for both Parties Y4 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 NAND Flash Memory Products to be produced at the Y4 Facility; provided that (A) the inability of the Parties so to agree shall not constitute a Deadlock (as defined in the FA Operating Agreement) and (B) the foregoing shall not limit either Partys rights in the remainder of this Section 6.7. |
(c) | Either Party shall have the right use a portion of its total allocated capacity with respect to the Y4 Facility to run a memory product which is not a Y4 NAND Flash Memory Product (solely because the NAND flash memory array area is equal to or less than [*]of the total die area ( Embedded NAND Product )) so long as such Embedded NAND Product [*]. If a Party exercises its option to run Embedded NAND Products, it must [*] The conditions stated in Sections 6.7(d) and (e) do not apply to Embedded NAND Products. | |
(d) | Each Party may use a portion of its total allocated capacity to cause to be manufactured NAND Flash Memory Products which are proprietary to that Party ( Proprietary NAND Flash Memory Products ) and which need not be shared |
18
with the other Party. Proprietary NAND Flash Memory Products may be produced at the Y4 Facility so long as such products [*] If a Party exercises such option, it must [*] No such Proprietary NAND Flash Memory Products may be run if doing so [*] Each Party shall give the other Party at least ninety (90) days advance written notice of its intention to use a portion of its allocated capacity to manufacture Proprietary NAND Flash Memory Products and the Parties shall refer the matter to the Board of Directors for consultation and planning, with the intention to minimize the impact of such allocation. Such notifying Party will limit the output volume of such Proprietary NAND Flash Memory Products to [ * ] of such Partys total allocated output at the Y4 Facility unless it receives the consent of the other Party to an increase in such output volume above such limit. | ||
(e) | Each Party (the Originating Party ) shall inform the other (the Non-Originating Party ) of the development plans by the Originating Party to develop NAND Flash Memory Products, and the Originating Party and the Non-Originating Party shall each refer such matter to the Coordinating Committee (as defined in the Product Development Agreement). If the Coordinating Committee unanimously decides that such planned development shall be undertaken jointly, then the cost of such joint development shall be borne by each Party in accordance with the Product Development Agreement, and the NAND Flash Memory Products manufactured following such joint development shall be considered non-Proprietary NAND Flash Memory Products for purposes of Section 6.7(d); provided, however , the NAND Flash Memory Products set forth in Exhibit A to the Product Development Agreement shall be deemed to be non-Proprietary NAND Flash Memory Products without any action by the Coordinating Committee. Subject to the foregoing, if the Coordinating Committee does not unanimously decide that such planned development shall be undertaken jointly, then the Originating Party may, at its sole discretion, either (i) transfer to the Non-Originating Party the technology, including the items in Exhibit C to the Product Development Agreement relating to such technology, used to manufacture such NAND Flash Memory Products on a royalty-free basis, whereupon such NAND Flash Memory Products shall be considered non-Proprietary NAND Flash Memory Products, or (ii) treat such NAND Flash Memory Products as Proprietary NAND Flash Memory Products for purposes of Section 6.7(d). In the event the Originating Party elects to treat any NAND Flash Memory Products as Proprietary NAND Flash Memory Products in accordance with the preceding sentence, but thereafter the Coordinating Committee unanimously determines that such Proprietary NAND Flash Memory Products should be developed jointly, the Originating Party shall transfer to the other Party the technology used to manufacture such NAND Flash Memory Products on reasonable terms and conditions to be mutually agreed upon by the Parties, whereupon such Proprietary |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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NAND Flash Memory Products shall be treated as non-Proprietary NAND Flash Memory Products. | ||
6.8 | Engineering Wafers and Development Expense . Each Party will have full access to all operational and engineering data and reports related to engineering wafers manufactured at Y4. | |
(a) | Engineering wafers and development expenses are further and more completely defined in four categories: Common R&D Development Expenses, Y4 Direct R&D Development Products, Evaluation Wafers, Qualification Wafers (each as defined below). |
(i) | Common R&D Development Expenses means [ * ]. The Parties agree to set up pilot-line(s) [*]. The Parties confirm their intent that [*] Notwithstanding the foregoing, the Parties shall meet from time to time [*] The Parties shall meet at the end of each quarter to determine if any engineering activities performed during the quarter [*], whether agreed in advance or not, [*]. If any activities performed [*] are agreed by the parties to [*] | ||
(ii) | [*] | ||
(iii) | Evaluation Wafers are those wafers manufactured [*] Both parties are entitled to receive evaluation wafers [*] The cost of Evaluation Wafers is [*] | ||
(iv) | Qualification Wafers are those wafers [*] The Parties will discuss and agree on the appropriate quantity of Qualification Wafers required for each Y4 NAND Flash Memory Product. [ * ]. |
(b) | [*]. | |
6.9 | Creation of Management Committee . The management committee established by the Parties pursuant to the FVC Japan Master Agreement and the FP Master Agreement to facilitate management of the respective operations of FVC Japan and Flash Partners (the Management Committee ) shall do the same for Flash Alliance, as detailed in this Section 6.9. | |
(a) | Authority . The Management Committee shall have the authority to (i) advise Flash Alliance with respect to policy and operating matters common to Toshiba and SanDisk as well as on such other matters as Flash Alliance may refer to the |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
20
Management Committee from time to time, (ii) hear and seek to resolve any disputes regarding operational matters or alleged breaches of any Master Operative Documents (including dispute resolution), and (iii) take the actions specified to be taken by the Management Committee in this Agreement or any Master Operative Document, including in this Section 6.9 and in Section 6.3. | ||
(b) | Members of the Management Committee; Voting; etc . |
(i) | The Management Committee shall consist of six members (the Committee Representatives ), three of whom shall be appointed by Toshiba, and three of whom shall be appointed by SanDisk (for such purpose, each of the Parties is referred to in this Section 6.9 as an Appointing Party ). Each Appointing Party shall be entitled to appoint an alternate Committee Representative to serve in the place of any Committee Representative appointed by such Appointing Party should any such Committee Representative be unable to attend a meeting. Each Party shall be entitled to invite a reasonable numbers of observers to all Management Committee meetings. | ||
(ii) | Each Committee Representative or alternate Committee Representative shall serve at the pleasure of the designating Appointing Party and may be removed as such, with or without cause, and his successor designated, by the designating Appointing Party. Each Appointing Party shall have the right to designate a replacement Committee Representative in the event of any vacancy among such Appointing Partys appointees. | ||
(iii) | Each Appointing Party shall bear any cost and expense incurred by any Committee Representative or alternate Committee Representative designated by such Appointing Party to serve on the Management Committee, and no Committee Representative or alternate Committee Representative shall be entitled to compensation from Flash Alliance for serving in such capacity. | ||
(iv) | Each Appointing Party shall notify the other Appointing Party and Flash Alliance in writing of the name, business address and business telephone and facsimile numbers of each Committee Representative and each alternate Committee Representative that such Appointing Party has been appointed to the Management Committee. Each Appointing Party shall promptly notify the other Appointing Party and Flash Alliance of any change in such Appointing Partys appointments or of any change in any such address or number. | ||
(v) | For purposes of any approval or action taken by the Management Committee, each Committee Representative shall have one vote. All of the votes eligible to be cast at any meeting must be voted in favor of any action to be taken by the Management Committee at such meeting. |
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(vi) | At any meeting of the Management Committee, a Committee Representative, in the absence of one or more other Committee Representatives appointed by the same Appointing Party or an alternate Committee Representative, may cast the vote such absent Committee Representatives would otherwise be entitled to cast. | ||
(vii) | The quorum necessary for any meeting of the Management Committee shall be those Committee Representatives entitled to cast all of the votes held by the members of the Management Committee. A quorum shall be deemed not to be present at any meeting for which notice was not properly given under Section 6.9(c), unless the Committee Representative or Committee Representatives as to whom such notice was not properly given attend(s) such meeting without protesting the lack of notice or duly execute(s) and deliver(s) a written waiver of notice or a written consent to the holding of such meeting. | ||
(viii) | Each appointment by an Appointing Party to the Management Committee shall remain in effect until the Appointing Party making such appointment notifies the other Appointing Party and Flash Alliance in writing of a change in such appointment. The resignation or removal of a Committee Representative shall not invalidate any act of such Committee Representative taken before the giving of such written notice of the removal or resignation of such Committee Representative (or alternate Committee Representative). |
(c) | Meetings, Notice, etc . |
(i) | Meetings of the Management Committee shall be held at such location or locations as may be selected by the Management Committee from time to time. | ||
(ii) | Regular meetings of the Management Committee shall be held on such dates and at such times as shall be determined by the Management Committee and shall be held as required or as requested by the Board of Directors. | ||
(iii) | Notice of any regular meeting or special meeting pursuant to Section 6.9(c)(iv) shall be given to each Committee Representative at least ten (10) Business Days prior to such meeting in the case of a meeting in person or at least five (5) Business Days prior to such meeting in the case of a meeting by conference telephone or similar communications equipment pursuant to Section 6.9(c)(vi), which notice shall state the purpose or purposes for which such meeting is being called and include any supporting documentation relating to any action to be taken at such meeting. |
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(iv) | Special meetings of the Management Committee may be called by any Committee Representative by notice given in accordance with the notice requirements set forth in this Section 6.9, which notice shall state in reasonable detail the purpose or purposes for which such meeting is being called; provided , that, the Committee Representatives appointed by the Appointing Party that is not represented by the Committee Representative calling such special meeting shall be entitled to in good faith select a convenient location for the meeting and to suggest an alternative time or times if the designated time is not convenient for them. Except as set forth in Section 6.9(c)(vi), no action may be taken and no business may be transacted at such special meeting which is not identified in such notice unless (A) such action or business is incidental to the action or business for which the special meeting is called or (B) such action or business does not materially adversely affect the Parties, any of their respective Affiliates which are parties to any of the Master Operative Documents or Flash Alliance. Minutes of each Management Committee meeting shall be sent by facsimile to all Committee Representatives within ten (10) Business Days after such meeting. Material to be presented at any Management Committee meeting shall be sent by facsimile, electronic mail or delivered in hard copy to all Committee Representatives together with the notice described in Section 6.9(c)(vi). | ||
(v) | The actions taken by the Management Committee at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, any Committee Representative as to whom such meeting was improperly held duly executes and delivers a written waiver of notice or a written consent to the holding of such meeting; provided , however , any Committee Representative who is present at a meeting and does not protest the failure of notice shall be deemed to have received adequate notice thereof. A vote of the Management Committee may be taken only either in a meeting of the members thereof duly called and held or by the execution by the Committee Representatives eligible to cast all the votes on the Management Committee without a meeting of a consent setting forth the action so taken, and identified as a consent of the Committee Representatives pursuant to this Section 6.9. | ||
(vi) | Upon the consent of all Committee Representatives, a meeting of the Management Committee may be held by conference telephone or similar communications equipment by means of which all Committee Representatives participating in the meeting can hear and be heard by all other participants, provided , that, such communications equipment continues to be operational throughout the meeting. Any Committee Representative may elect to participate in a meeting by conference telephone or similar communications equipment upon sufficient advance notice to permit arrangements therefor to be made. At any meeting, the |
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Management Committee shall consider (A) any items added to the Management Committee agenda for discussion by the Parties and (B) such other matters as the Management Committee decides to review. | |||
(vii) | The Management Committee shall, from time to time, elect one of its members to preside at its meetings, which presiding member shall alternate annually if requested by either Party. The Management Committee may establish reasonable rules and regulations to (A) require officers to call meetings and perform other administrative duties, (B) limit the number and participation of observers, if any, and require them to observe confidentiality obligations and (C) otherwise provide for the keeping and distribution of minutes and other internal Management Committee governance matters not inconsistent with the terms of this Agreement. |
6.10 | [ * ] | |
(a) | [*] |
(i) | [*] | ||
(ii) | [*] | ||
(iii) | [*] | ||
(iv) | [*] |
(b) | [*] |
(i) | [*] | ||
(ii) | [*] | ||
(iii) | [*] | ||
(iv) | [*] | ||
(v) | [*] | ||
(vi) | [*] | ||
(vii) | All members of the SanDisk Team will remain employees of SanDisk. Each Party will indemnify the other Party and Flash Alliance from any |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
24
claim by any of such Partys employees, consultants or agents (such Party being the Employer ) (A) based on other than willful misconduct of such Employer, its employees, consultants or agents; or (B) that he or she has rights, or is owed obligations, as an employee of the Party that is not the Employer. |
(c) | [*] | |
6.11 | Non-solicitation of Employees . So long as the business of Flash Alliance continues, each Party (and each of its respective Affiliates) shall not, without the prior written consent of the other Party, directly recruit or solicit any employee or director of Flash Alliance to leave his or her employment with Flash Alliance prior to the period ending twenty-four (24) months after the FA Termination Date; provided , however , that placement of employment advertisements or other general solicitation for employees not specifically targeted to the employees or directors of Flash Alliance shall not constitute direct recruitment. In the event of the dissolution and liquidation of Flash Alliance, either Party (or any Affiliate of either Party) may solicit any former employee of such dissolved and liquidated company, but neither Party (nor any of its Affiliates) shall be required to employ any such Person. If all of the FA Shares held by one Party are purchased by the other Party or its designee, if requested by the acquiring Party the Parties shall reach agreement on a reasonable transition plan (without profit to the seller) in connection with the services provided to Flash Alliance, as applicable, by employees and contractors of the selling Party. | |
6.12 | Financing . | |
(a) | [ * ] | |
(b) | The Parties currently intend, but are not obligated, to structure the financing for equipment purchases by Flash Alliance necessary to implement the Ramp-Up Plan as follows: |
(i) | Flash Alliance will enter into equipment lease or loan agreements and pledge the financed equipment as collateral; | ||
(ii) | Flash Alliance will secure external financing for approximately 50% of the initial purchase price of its tools and each Party will provide equity capital contributions and loans (on a subordinated basis) for the remaining cash requirements of Flash Alliance necessary to execute the Ramp-Up Plan; |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(iii) | each Party will severally and not jointly and through separate arrangements guarantee as close as possible to 50% of Flash Alliances obligations under such lease or loan agreements (any financing separately guaranteed or provided by Toshiba for Flash Alliance or otherwise for investment in the Y4 Facility, Toshiba Financing , any such financing separately guaranteed or provided by SanDisk for Flash Alliance or otherwise for investment in the Y4 Facility SanDisk Financing and the Toshiba Financing and SanDisk Financing, each a Financing ); and | ||
(iv) | the Parties will attempt to obtain the foregoing financing from the same financial institution, but under separate agreements that expressly disclaim any joint and several liability of the Parties. |
(c) | With respect to any Toshiba Financing or SanDisk Financing, the following shall apply: |
(i) | [ * ] | ||
(ii) | Unless otherwise expressly agreed by both Parties in writing in each case, all Toshiba Financing and all SanDisk Financing shall create only several obligations of the Parties and no joint and several obligations or liability. Toshiba (with respect to Toshiba Financing) and SanDisk (with respect to SanDisk Financing) hereby indemnifies and holds harmless the other Party and its Indemnified Parties from any claims by any financial institution or other Person that the other Party has any liabilities or obligations with respect to, respectively, any Toshiba Financing or SanDisk Financing (unless joint liability has been agreed pursuant to the first sentence of this Section 6.12(c)(ii)). | ||
(iii) | Flash Alliance will use commercially reasonable efforts to comply with the requirements of any financing sources. Flash Alliance will make available to each Party one-half of its assets (with as near as practicable cost, collateral value and type) to secure such Partys Financing (whether external or loans from a Party or its Affiliates). |
(d) | If the lender under the Financing for either Party (as the Defaulting Party ) takes significant actions to enforce its right in the collateral, then the other Party (as the Non-Defaulting Party ) shall have the right, but not the obligation, to cure the default giving rise to the lenders enforcement action. If the Non-Defaulting Party exercises such cure right, then the Non-Defaulting Partys rights in any subject collateral shall be superior to the Defaulting Partys and the Non-Defaulting Party may exercise one of the following options: |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(i) | the Non-Defaulting Party (A) shall have a claim against the Defaulting Party for reimbursement of any payments made by the Non-Defaulting Party on the Defaulting Partys behalf (which will be subordinate to the lenders claims and bear interest at a rate 500 basis points in excess of the rate being charged by the lender to the Defaulting Party) and (B) shall have the right, until and unless the Defaulting Party pays in full the obligation to the Non-Defaulting Party under foregoing clause (A), to take over the increment of production of the Y4 Facility represented by the collateral with respect to which the lender took significant actions to enforce its rights; or | ||
(ii) | the Non-Defaulting Party shall have the right to terminate the Operating Agreement pursuant to Section 11.6 thereof (Foreclosure Default). |
6.13 | Other Activities . Except as expressed in Section 6 and in the Common R&D Agreement, neither Party nor any of their respective Affiliates shall: (i) fabricate NAND Flash Memory Integrated Circuits at any location other than the Yokkaichi Facility or any other fabrication facility agreed upon by the Parties in writing; (ii)have any third party fabricate NAND Flash Memory Integrated Circuits; or (iii) have any right to fabricate NAND Flash Memory Integrated Circuits beyond the capacity as limited pursuant to this Section 6, as such capacity limitations may be amended from time to time in accordance with this Section 6. For the avoidance of doubt, nothing contained in the foregoing shall restrict the Parties from engaging in any other activities, including, without limitation, (A) designing any NAND Flash Memory Product; (B) selling any NAND Flash Memory Product to any customer; (C) entering into any equipment purchase or material supply agreements; or (D) entering into any patent licensing arrangement; and nothing in the foregoing shall restrict Toshiba from installing any manufacturing line in the Toshiba Foundry Facility subject to the capacity limitations set forth in Section 6 of the FVC Japan Master Agreement and the FP Master Agreement and as provided herein, as such capacity limitations may be amended from time to time in accordance with this Section 6. For purposes of this Section 6.13, NAND Flash Memory Integrated Circuits means ICs included in the definition of NAND Flash Memory Products pursuant to Section 3.2. | |
6.14 | Protection of Intellectual Property . Both Parties recognize that it is important for the success of the Y4 NAND Flash Memory Products business to promote the adoption of such Y4 NAND Flash Memory Products with a wide variety of customers and applications, whether for card use or non-card use, and with such recognition, each Party shall use reasonable efforts to protect and enhance the value of Y4 NAND Flash Memory Products. Further, where feasible, each Party shall share with Flash Alliance internally prepared analyses of competitive products prepared by either Party so as to allow Flash Alliance to respond to such information and remain competitive in the marketplace; provided , that neither Party warrants as to the accuracy or completeness of any such analysis so provided. |
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6.15 | [ * ] | |
7. | Other Agreements | |
To supplement their agreement as expressed in certain of the Master Operative Documents, the Parties agree as set forth in this Section 7. To the extent of any conflict between this Section 7 and any other Master Operative Document referenced in this Section 7, the other Master Operative Document shall prevail. | ||
7.1 | Flash Alliance Management . | |
(a) | As contemplated by the FA Operating Agreement, the Y4 Operating Committees purpose is to give both Parties the ability to influence the day to day operating decisions of Flash Alliance and the Y4 Facility. The Y4 Operating Committee is intended to be a collaborative body with real-time communications, respectful consultation and dispute resolution with the goal of making the Y4 Facility the most competitive (cost and technology) memory fabrication facility in the world. | |
(b) | If the Y4 Operating Committee is unable to decide an issue (by agreement of its two members) such issue shall be referred to the Board of Directors. Special meetings of the Board of Directors may be noticed for issues requiring urgent resolution. The Parties contemplate that while a special meeting of the Board of Directors is being noticed, their respective management teams will discuss any issue that the Y4 Operating Committee could not resolve. | |
(c) | If the Board of Directors is unable to decide an issue (by unanimous agreement), such issue shall be referred to the Management Committee for resolution, which shall be vested with final decision making authority. This Agreement separately provides for procedures if the Management Committee is unable to reach agreement on such issue. | |
7.2 | Y4 Facility . | |
(a) | Building Construction and Facilitization . Toshiba has designed and is constructing and facilitizing the Y4 Facility at its sole cost and expense, and SanDisk shall work with Toshiba to help minimize administrative approval delays. Toshiba will exercise all reasonable efforts to ensure that the construction of the Y4 Facility is completed by [ * ] , provided that Toshiba shall have no liability to SanDisk, any SanDisk Affiliate or Flash Alliance if completion is not achieved by such time. The depreciation charges for Y4 will be passed on to Flash Alliance as further described in Section 7.3(d). |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(b) | With prior coordination with Toshiba and the construction contractors for the Y4 Facility, SanDisk will have reasonable access to the construction site for the Y4 Facility and to all information pertaining to the construction of the Y4 Facility, on condition that SanDisk will be solely responsible for all damage caused by such access. | |
(c) | Land . Neither SanDisk nor Flash Alliance will be charged for the land Toshiba currently owns and makes available for the Y4 Facility. With respect to new land (purchased or leased by Toshiba) required or related to the establishment of the Y4 Facility and its operations, SanDisk will pay Toshiba on a quarterly basis during the term of this Agreement a fair, reasonable and mutually-agreed fee to be calculated based on the amount Toshiba actually pays or incurs for such new land and the number of parking spaces; provided, however, that Toshiba will determine whether there will be a multi-level parking structure, single level parking lot, or other method of providing parking for the Yokkaichi Facility, and, provided further, that during the term of this Agreement SanDisks payments in respect of land and parking costs will in no event exceed [*] per year. | |
(d) | Incentives . All government incentives (financial or otherwise) received with respect to Flash Alliance, the Y4 Facility or Y4 operations will be shared equally by the Parties. | |
7.3 | FP Foundry Agreement . Flash Alliance and Toshiba shall enter into the FA Foundry Agreement at the Closing. The FA Foundry Agreement provides for ordering procedures, prices, delivery, cost reporting and other specific terms and conditions for the manufacture by Toshiba and supply to Flash Alliance of Y4 NAND Flash Memory Products, which shall be consistent with the following basic terms: | |
(a) | Facilities, Equipment and Raw Materials . The manufacturing facilities will be located at the Y4 Facility and die sort will be located [ * ]or such other place as the Parties may agree upon. Flash Alliance and Toshiba will enter into an exclusive lease agreement with respect to the Y4 Facility and Flash Alliances manufacturing equipment located in the Y4 Facility to be used in the manufacture of Y4 NAND Flash Memory Products by Toshiba. Toshiba shall be responsible for obtaining the raw materials and services to be used in the manufacture of Y4 NAND Flash Memory Products. | |
(b) | Production . Toshiba will manufacture Y4 NAND Flash Memory Products at the Y4 Facility for Flash Alliance ordered by Toshiba and SanDisk under the terms and conditions of the FA Purchase and Supply Agreements. Flash Alliance and Toshiba (from the Yokkaichi Facility) will use their best efforts to achieve the |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Ramp-Up Plan manufacturing capacity (the Y4 Facility Target Capacity ). Wafers will be sorted between the Parties such that aggregate yield losses will be shared on an equal basis. | ||
(c) | Operating Relationship . The Parties shall provide personnel necessary for the manufacturing of the Y4 NAND Flash Memory Products as described in Section 6.10. | |
(d) | Consideration to be Paid to Toshiba . Toshiba will be compensated by Flash Alliance as provided in Section 4 of the FA Foundry Agreement, [ * ] | |
(e) | No Duplication of Costs or Expenses . It is the intent of the Parties that any payments made by SanDisk under or pursuant to any Master Operative Documents, FVC Japan Operative Documents or FP Operative Documents shall not be duplicative and SanDisk shall in no event be required to pay or contribute more than once for any service, product or development work provided under such agreements, if such service, product or development work is provided under more than one agreement. In addition, if SanDisk makes a direct payment for any service, product or development work provided under any such agreement, the cost incurred by Toshiba (from the Yokkaichi Facility), FVC Japan, Flash Partners or Flash Alliance, as the case may be, in connection with the provision of such service, product or development work shall not be included in the applicable wafer price charged to SanDisk. | |
(f) | Exclusivity . The Yokkaichi Facility shall be Flash Alliances exclusive manufacturing source for output of Y4 NAND Flash Memory Products. Flash Alliance may seek external manufacturing sources for output in excess of the Yokkaichi Facilitys capacity upon unanimous approval by the Management Committee. | |
7.4 | FA Purchase and Supply Agreements . Flash Alliance and each of the Parties or their respective Affiliates will enter into substantially identical FA Purchase and Supply Agreements providing for specific terms and conditions for the purchase by the Parties of Y4 NAND Flash Memory Products from Flash Alliance, which shall be consistent with the following basic terms: | |
(a) | Manufacturing . Flash Alliance shall manufacture or cause to be manufactured Y4 NAND Flash Memory Products as contemplated by Section 7.3. | |
(b) | Purchase Commitment . Except as contemplated in Section 6.5(c)(ii), each Party shall (itself or through Affiliates) purchase one half (based on a measure of equivalent lots out per week with the equivalency being weighed based on the |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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process complexity factors (as calculated by a formula to be mutually determined by the Parties) of the Y4 NAND Flash Memory Products) of the total L/M of Y4 NAND Flash Memory Products. The foregoing purchase commitment of each Party shall not be subject to reduction unless agreed in writing by the other Party, which may grant or withhold such approval in its sole discretion. | ||
(c) | Sales Price for Y4 NAND Flash Memory Products Purchased by the Parties . The sales price charged by Flash Alliance to the Parties for wafers manufactured at Y4 shall be the sum of: |
(i) | [*] | ||
(ii) | [*] |
(d) | Other Cost Items . Other items related to the manufacture of Y4 NAND Flash Memory Products will be charged on a monthly basis from Flash Alliance to the Parties and will include the following: |
(i) | [ * ] | ||
(ii) | [*] | ||
(iii) | [*] | ||
(iv) | [*] | ||
(v) | [*] | ||
(vi) | [*] |
7.5 | Other Matters . | |
(a) | Forecasts/Production Planning . Each Party will submit forecasts, on a rolling six-month basis, directly to Flash Alliance, as further provided in the Purchase and Supply Agreements. The Parties shall use the system at the Y3 Facility for such direct system, provided that the cost necessary for [*] will be borne by SanDisk. Flash Alliance production planning will hold a monthly production planning meeting with representatives of each Party, as further provided in the Purchase and Supply Agreements. At such meetings, the Parties will agree on a production plan for the [*] which plan will be final (and the related forecast will be deemed to be covered by a binding purchase order). |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(b) | Production Control . Flash Alliance will provide [*] on a non-discriminatory basis to SanDisk [ * ] with respect to [*], provided that the cost necessary for making such system available or [*] will be borne by SanDisk. Each Party (through the Y4 Management Committee) will have the right to discuss the production schedule, planned wafer starts and [*] | |
(c) | Operating Reports . SanDisk will have full access to any management or operation reports related to Flash Alliance or Flash Alliances business through the Y4 Operating Committee (as defined in the FA Operating Agreement). Management and operating reports related to Flash Alliance or Flash Alliances business as mutually agreed from time to time will be simultaneously made available in Japanese and English to each Party. Upon request, Toshiba employees will explain such reports to SanDisks employees and respond to questions from SanDisks employees, but Toshiba will not be responsible for SanDisks failure to understand such reports. | |
(d) | Insurance. Toshiba shall maintain or arrange property insurance covering assets owned or leased by Flash Alliance and business interruption insurance in respect of the business of Flash Alliance, the scope and amounts of which shall be consistent with Toshibas practices at the Yokkaichi Facility and as required by any lender. This coverage shall provide basically full replacement value of all Flash Alliance owned and leased equipment, subject to valuation as part of Toshibas annual insurance policy renewal, and shall name Flash Alliance as a beneficiary in respect of assets owned or leased by it and Flash Alliances employee expenses covered by business interruption insurance. On an annual basis, or when requested by either Party, the Y4 Operating Committee shall discuss and review the current insurance coverage and/or the need for any additional property or business interruption insurance in respect of Flash Alliances assets or business. Further, SanDisk reserves the right to seek to arrange additional property or business interruption insurance for its own account in respect of Flash Alliances assets or business. If SanDisk seeks such additional property or business interruption insurance, Toshiba shall cooperate in good faith to provide such information and access as is reasonably necessary for SanDisk to arrange such insurance. If Toshiba makes a recovery from a third party (other than an insurer per the above) in respect of both assets of Flash Alliance and other assets, then Toshiba shall allocate to Flash Alliance a share of the net amount of such recovery in proportion to the losses suffered by Flash Alliance and total losses suffered by Flash Alliance and Toshiba. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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8. | Termination | |
8.1 | Termination . | |
(a) | Termination of any Master Operative Document by either Party shall be done only in good faith. | |
(b) | This Agreement shall be terminated automatically upon the earlier of the Transfer of all of a Partys FA Shares to the other Party (or its Affiliate) or upon completion of the dissolution and liquidation of Flash Alliance pursuant to Section 11 (Dissolution) of the FA Operating Agreement (the date of such Transfer or dissolution and liquidation, the FA Termination Date ). | |
(c) | Upon termination of this Agreement resulting from an event of dissolution of Flash Alliance due to the expiration of Flash Alliance pursuant to Section 11.1(a) (Expiration) of the FA Operating Agreement: |
(i) | the Parties shall further amend the Cross License Agreement, as then in effect, to specify that each Partys patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed on a royalty-free basis for the duration of such patents. The scope of the licenses as amended pursuant to this Section 8.1(c)(i) shall not be greater than the scope of those granted under the Cross License Agreement, as in effect as of the FA Termination Date. | ||
(ii) | Toshiba shall grant to SanDisk, effective upon the FA Termination Date, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized at the Yokkaichi Facility, and SanDisk shall have full access to all such know-how at the Yokkaichi Facility which has been transferred to the Yokkaichi Facility prior to the FA Termination Date. |
(d) | Upon a termination of this Agreement resulting from (i) an event of dissolution of Flash Alliance or (ii) one Partys acquisition of all of the other Partys FA Shares (the acquirer thereof referred to hereinafter as the Acquiring Party and the seller thereof referred to hereinafter as the Selling Party ) pursuant to Section 11.5 (Dissolution Upon Notice) of the FA Operating Agreement: |
(i) | Toshiba or the Acquiring Party, as the case may be, will, upon the request, prior to the FA Termination Date, of (A) SanDisk (such request to be made at the time of its notice pursuant to Section 11.5 of the FA Operating Agreement) in the case of the dissolution of Flash Alliance or (B) the Selling Party (each, a Requesting Party ), as the case may be, continue to manufacture NAND Flash Memory Products for the Requesting Party (not to exceed the Requesting Partys capacity allocation available from Flash |
33
Alliance under this Agreement as of the FA Termination Date (the Termination Capacity )) for a period of eighteen (18) months following the Termination Date in the following ramp-down manner: |
(A) | During the first six months following the FA Termination Date: 100% of the Termination Capacity | ||
(B) | During the 7th through the 12th month following the FA Termination Date: 75% of the Termination Capacity | ||
(C) | During the 13th through the 18th month following the FA Termination Date: 50% of the Termination Capacity. |
(ii) | Toshiba and SanDisk and their respective Affiliates shall have a perpetual, fully paid-up, royalty-free right to use technology previously transferred to one another during the term of this Agreement. | ||
(iii) | The Parties shall further amend the Cross License Agreement to specify that each Partys patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed on a royalty free basis for the duration of such patents. The scope of the licenses as amended pursuant to this Section 8.1(d)(iii) shall not be greater than the scope of those granted under the Cross License Agreement, as in effect as of FA Termination Date. | ||
(iv) | Upon termination of this Agreement resulting from an event of dissolution of Flash Alliance caused by Toshibas election to withdraw from Flash Alliance pursuant to the FA Operating Agreement, Toshiba hereby grants to SanDisk, effective upon the FA Termination Date, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid-up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized at the Yokkaichi Facility, and SanDisk shall have full access to all such know-how at the Yokkaichi Facility which has been transferred to the Yokkaichi Facility prior to the FA Termination Date. |
(e) | Upon termination of this Agreement resulting from an event of dissolution of Flash Alliance or Toshibas acquisition of SanDisks FA Shares pursuant to Section 11.4 (Dissolution By Unilateral Option) of the FA Operating Agreement: |
(i) | From the Yokkaichi Facility, Toshiba will, upon request of SanDisk given within sixty (60) days of the notice given by SanDisk pursuant to Section 11.4 of the FA Operating Agreement, continue to manufacture products for SanDisk for a period of eighteen (18) months following the FA Termination Date in accordance with the following ramp-down manner; provided , however , such capacity allocation for SanDisk shall not exceed |
34
its capacity allocation available from Flash Alliance under this Agreement as of the FA Termination Date (the SanDisk Termination Capacity ): |
(A) | During the first six months following the FA Termination Date: 100% of the SanDisk Termination Capacity | ||
(B) | During the 7th through the 12th month following the FA Termination Date: 75% of the SanDisk Termination Capacity | ||
(C) | During the 13th through the 18th month following the FA Termination Date: 50% of the SanDisk Termination Capacity. |
(ii) | The Parties and their respective Affiliates shall have a perpetual, fully paid-up, royalty-free right to use technology previously transferred to one another during the term of this Agreement. | ||
(iii) | The Parties shall further amend the Cross License Agreement to specify that, with respect only to Y4 NAND Flash Memory Products and any other Licensed Products defined in the Cross License Agreement and manufactured with 300mm wafers at any facility, each Partys patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed at the royalty rates specified in Schedule 8.1(e) until March 31, 2015; provided , that after such five (5) year period, such license shall be on a royalty free basis and provided , further , that at any time during such five year period, both Parties shall negotiate in good faith for up to one hundred and eighty (180) days as requested by either Party to mutually agree on royalty rates for patents filed by each Party after the FA Termination Date. The scope of the licenses as amended pursuant to this Section 8.1(e)(iii) shall not be greater than the scope of those granted under the Cross License Agreement, as in effect as of the FA Termination Date. |
(f) | Upon termination of this Agreement resulting from an event of dissolution of Flash Alliance or one Partys acquisition of the other Partys FA Shares following a Deadlock (as defined in the FA Operating Agreement) pursuant to Section 10.3 (Dispute Resolution; Deadlock) of the FA Operating Agreement: |
(i) | In the case of one Partys acquisition of the other Partys FA Shares pursuant to Section 10.4(e) of the FA Operating Agreement, the Acquiring Party shall continue to manufacture products for the other Party (not to exceed the other Partys Termination Capacity) for a period of eighteen (18) months following the FA Termination Date in accordance with the following ramp down manner: |
(A) | During the first six months following the FA Termination Date: 100% of the Termination Capacity |
35
(B) | During the 7th through the 12th month following the FA Termination Date: 75% of the Termination Capacity | ||
(C) | During the 13th through the 18th month following the FA Termination Date: 50% of the Termination Capacity. |
(ii) | The Parties and their respective Affiliates shall have a perpetual, fully paid-up, royalty-free right to use technology previously transferred to one another during the term of this Agreement. | ||
(iii) | The Parties shall further amend the Cross License Agreement to specify that, with respect only to Y4 NAND Flash Memory Products and any other Licensed Products defined in the Cross License Agreement and manufactured with 300mm wafers at any facility, each Partys patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed: (x) at the royalty rates specified in Schedule 8.1(f) until March 31, 2014; (y) at the royalty rates specified in Schedule 8.1(e) from April 1, 2014 through December 31, 2016; and (z) thereafter, on a royalty-free basis. Both Parties shall negotiate in good faith for up to one hundred and eighty (180) days upon request of either Party at any time during the five-year period after the FA Termination Date to agree on royalty rates for patents filed by each Party after the FA Termination Date. The scope of the licenses as amended pursuant to this Section shall not be greater than the scope of those granted under the Cross License Agreement, as in effect as of the FA Termination Date. |
(g) | Upon termination of this Agreement resulting from an event of dissolution of Flash Alliance or a Partys acquisition of the other Partys FA Shares described in Section 11.3 (Dissolution Upon Event of Default) of the FA Operating Agreement: |
(i) | The Parties shall further amend the Cross License Agreement to specify that, with respect only to Y4 NAND Flash Memory Products and any other Licensed Products defined in the Cross License Agreement and manufactured with 300mm wafers at any facility, each Partys patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed at the royalty rates specified in Schedule 8.1(g) for seven (7) years after the FA Termination Date or until the end of calendar 2021, whichever comes first, and thereafter such licenses shall be on a royalty-free basis. | ||
(ii) | In the event that Toshiba or an Affiliate of Toshiba is the Defaulting Party, Toshiba shall grant to SanDisk, effective upon such date of termination, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid-up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world |
36
utilizing the NAND technology transferred to and/or utilized at the Yokkaichi Facility, and SanDisk shall have full access to all such know-how at the Yokkaichi Facility which has been transferred to the Yokkaichi Facility prior to the FA Termination Date. |
(h) | Upon termination of this Agreement resulting from an event of dissolution described in Section 11.1(f) (Bankruptcy Event) of the FA Operating Agreement: |
(i) | If such termination is caused by a Bankruptcy Event in respect of Toshiba, (x) the license granted to SanDisk under Toshiba Licensed Patents pursuant to the Cross License Agreement shall continue on a royalty-free basis, and (y) Toshiba shall grant to SanDisk, effective upon such date of termination, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid-up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized at the Yokkaichi Facility, and SanDisk shall have full access to all such know-how at the Yokkaichi Facility which has been transferred to the Yokkaichi Facility prior to the Termination Date. | ||
(ii) | If such termination is caused by a Bankruptcy Event in respect of SanDisk, the license granted to Toshiba under SanDisk Licensed Patents (as defined in the Cross License Agreement) pursuant to the Cross License Amendment shall continue on a royalty-free basis. |
(i) | Upon a termination of this Agreement resulting from a purchase and sale transaction described in Section 11.6 (Financing Default) of the FA Operating Agreement, there shall be no capacity ramp-down rights or obligations and: |
(i) | If such termination is caused by a financing default in respect of Toshiba, (x) the Parties shall further amend the Cross License Agreement to specify that, with respect only to Y4 NAND Flash Memory Products and any other Licensed Products defined in the Cross License Agreement and manufactured with 300mm wafers at any facility, Toshibas patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed to SanDisk on a royalty-free basis, and (y) Toshiba shall grant to SanDisk, effective upon such date of termination, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid-up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized at the Yokkaichi Facility, and SanDisk shall have full access to all such know-how at the Yokkaichi Facility which has been transferred to the Yokkaichi Facility prior to the Termination Date. | ||
(ii) | If such termination is caused by a financing default in respect of SanDisk, the Parties shall further amend the Cross License Agreement to specify |
37
that, with respect only to Y4 NAND Flash Memory Products and any other Licensed Products defined in the Cross License Agreement and manufactured with 300mm wafers at any facility, SanDisks patents issued or issuing on patent applications entitled to an effective filing date prior to the FA Termination Date are licensed to Toshiba on a royalty-free basis. |
(j) | Restructuring Costs. |
(i) | In the event this Agreement is terminated, the Parties will exercise best efforts to plan such termination in advance with the goal of minimizing related costs. With respect to Toshiba employees and SanDisk employees working at the Y4 Facility, (i) in the case of those that are Toshiba employees, Toshiba will use its best efforts to retrain or relocate such individuals to other Toshiba facilities, and (ii) in the case of those that are SanDisk employees, SanDisk will use its best efforts to retrain or relocate such individuals to other SanDisk facilities, each to the maximum extent possible. | ||
(ii) | The Parties agree that in the event of such a SanDisk exit from Flash Alliance, [ * ] |
(A) | [*] | ||
(B) | [*] |
(iii) | Upon any termination of this Agreement, the Parties shall meet and discuss in good faith an estimate of the Restructuring Costs anticipated to be incurred by Toshiba. [*] |
(k) | Termination of this Agreement shall not affect any surviving rights or obligations of either Party set forth in the Product Development Agreement and the Common R&D Agreement. |
9. | Miscellaneous | |
9.1 | Survival . Sections 1.3, 6.10(b)(vii), 6.11, 6.12(d), 8 and 9 and Appendix A shall survive the termination or expiration of this Agreement. | |
9.2 | Entire Agreement . This Agreement, together with the exhibits, schedules, appendices and attachments thereto, constitutes the agreement of the Parties to this Agreement with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
38
9.3 | Governing Law . This Agreement shall in all respects be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such state without regard to the conflict of laws principles of such state. Each Master Operative Document shall be governed in accordance with its governing law provision and, in the absence of any such provision, by the first sentence of this Section 9.3. | |
9.4 | Assignment . Neither Party may transfer this Agreement or any of its rights hereunder (except for any transfer to an Affiliate or in connection with a merger, consolidation or sale of all or substantially all the assets or the outstanding securities of such party, which transfer shall not require any consent of the other party) without the prior written consent of the other Party (which consent may be withheld in such other Partys sole discretion), and any such purported transfer without such consent shall be void. |
39
TOSHIBA CORPORATION
|
||||
By: | ||||
Name: | Masashi Muromachi | |||
Title: | President and CEO Semiconductor Company Corporate Executive Vice President | |||
SANDISK CORPORATION
|
||||
By: | ||||
Name: | Eli Harari | |||
Title: | Chief Executive Officer | |||
SANDISK (IRELAND) LIMITED
|
||||
By: | ||||
Name: | Sanjay Mehrotra | |||
Title: | Director | |||
EXHIBITS | ||||
|
||||
(Flash Alliance Documents) | ||||
Exhibit A1
|
- | Share Purchase Agreement | ||
Exhibit A2
|
- | FA Operating Agreement | ||
Exhibit A3
|
- | FA Foundry Agreement | ||
Exhibit A4-1
|
- | SanDisk Purchase and Supply Agreement | ||
Exhibit A4-2
|
- | Toshiba Purchase and Supply Agreement | ||
Exhibit A5
|
- | FA Patent Indemnification Agreement | ||
Exhibit A6
|
- | Mutual Environmental Indemnification Agreement | ||
Exhibit A7
|
- | Lease Agreement | ||
Exhibit A8
|
- | Toshiba-SanDisk Ireland Services Agreement | ||
Exhibit A9
|
- | Toshiba-Flash Alliance Services Agreement | ||
Exhibit A10
|
- | SanDisk Ireland-Flash Alliance Services Agreement | ||
|
||||
(Joint Operative Documents) | ||||
Exhibit B1
|
- | Common R&D and Participation Agreement | ||
Exhibit B2
|
- | Product Development Agreement | ||
Exhibit B3
|
- | Amendment No. 4 to Cross License Agreement | ||
SCHEDULES |
||||
Schedule 4.5
|
- | Litigation; Decrees | ||
Schedule 4.7
|
- | Patents and Proprietary Rights | ||
Schedule 4.9
|
- | Cross License Payment Obligations | ||
Schedule 6.3
|
- | Technology Transfer Costs | ||
Schedule 6.5(b)
|
- | Ramp-Up Plan | ||
Schedule 8.1(e)
|
- | Royalty in case of SanDisk Unilateral Termination | ||
Schedule 8.1(f)
|
- | Royalty in case of Deadlock Termination | ||
Schedule 8.1(g)
|
- | Royalty in case of Event of Default Termination |
Schs., p. 1
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Schs., p. 2
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Schs., p. 3
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Schs., p. 4
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Schs., p. 5
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Schs., p. 6
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1
1
2
3
4
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
5
6
7
8
9
10
11
(i) | is already known to the Receiving Party at the time of its receipt from the Disclosing Party as reasonably evidenced by its written records; or | ||
(ii) | is or becomes publicly available without breach of this Agreement by the Receiving Party; or | ||
(iii) | is made available to a third party by the Disclosing Party without restriction on disclosure; or |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
12
(iv) | is rightfully received by the Receiving Party from a third party without restriction and without breach of this Agreement; or | ||
(v) | is independently developed by the Receiving Party as reasonably evidenced by its written records contemporaneous with such development; or | ||
(vi) | is disclosed with the prior written consent of the Disclosing Party, provided that each recipient from the Receiving Party shall execute a confidentiality agreement prohibiting further disclosure of the Confidential Information, under terms no less restrictive that those provided in this Agreement; or | ||
(vii) | is required to be disclosed by the order of a governmental agency or legislative body of a court of competent jurisdiction, provided that the Receiving Party shall give the Disclosing Party prompt notice of such request so that the Disclosing Party has an opportunity to defend, limit or protect such disclosure; or | ||
(viii) | is required to be disclosed by applicable securities of other laws or regulations, provided that SanDisk shall, prior to any such disclosure required by the U.S. Securities and Exchange Commission, provide Toshiba with notice which includes a copy of the proposed disclosure. Further, SanDisk shall consider Toshibas timely input with respect to the disclosure. |
2.15 | Definitions . The definitions set forth in Article I of this Appendix A shall apply to this Article II. |
13
|
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|
||
Page | ||||
1. DEFINITIONS, RULES OF CONSTRUCTION AND DOCUMENTARY CONVENTIONS
|
1 | |||
|
||||
1.1 Certain Definitions
|
1 | |||
1.2 Additional Definitions
|
1 | |||
1.3 Rules of Construction and Documentary Conventions
|
2 | |||
|
||||
2. GENERAL PROVISIONS
|
2 | |||
|
||||
2.1 Ownership of Shares; Capital Increase
|
2 | |||
2.2 Name
|
3 | |||
2.3 Principal Office
|
3 | |||
2.4 Term; Extension
|
3 | |||
2.5 Scope of Activity
|
3 | |||
2.6 Powers
|
3 | |||
2.7 Articles of Incorporation
|
3 | |||
2.8 Company Actions
|
3 | |||
3. BUSINESS OPERATIONS
|
3 | |||
|
||||
3.1 Business Dealings with the Company
|
3 | |||
3.2 Other Activities
|
4 | |||
3.3 Personnel
|
4 | |||
3.4 Business Plans and Related Matters
|
6 | |||
3.5 Standard of Care
|
7 | |||
3.6 Use of Names
|
7 | |||
|
||||
4. ACTIONS BY THE SHAREHOLDERS
|
7 | |||
|
||||
4.1 Matters Requiring the Approval of the Shareholders
|
8 | |||
4.2 General Meetings of Shareholders
|
10 | |||
4.3 Restrictions on Shareholders
|
10 | |||
|
||||
5. MANAGEMENT AND OPERATIONS OF COMPANY
|
11 | |||
|
||||
5.1 Meetings of the Directors
|
11 | |||
5.2 Officers; Employees
|
16 | |||
5.3 Y4 Representatives; Y4 Operating Committee
|
16 | |||
5.4 Insurance
|
17 | |||
5.5 Records
|
17 | |||
|
||||
6. CAPITAL CONTRIBUTIONS; DISTRIBUTIONS
|
18 | |||
|
||||
6.1 Capital Contributions
|
18 | |||
6.2 Distributions
|
18 | |||
6.3 No Interest
|
19 | |||
6.4 Return of Capital Contributions
|
19 |
Page | ||||
7. ADDITIONAL CONTRIBUTIONS
|
19 | |||
|
||||
8. ACCOUNTING AND TAXATION
|
19 | |||
|
||||
8.1 Financial Accounting Conventions
|
19 | |||
8.2 Maintenance of Books of Account
|
20 | |||
8.3 Financial Statements
|
20 | |||
8.4 Other Reports and Inspection
|
22 | |||
8.5 Characterization
|
22 | |||
8.6 Deposit of Funds
|
22 | |||
|
||||
9. SHARES OF CONTRIBUTION; DISPOSITION OF SHARES
|
22 | |||
|
||||
9.1 Restrictions on Transfer of Shares
|
22 | |||
9.2 Admission of New Shareholders
|
24 | |||
9.3 Withdrawal Prohibited
|
24 | |||
9.4 Purchase of Additional Interest
|
24 | |||
|
||||
10. CERTAIN AGREEMENTS OF THE SHAREHOLDERS
|
25 | |||
|
||||
10.1 Taxes and Charges; Governmental Rules
|
25 | |||
10.2 Further Assurances
|
25 | |||
10.3 Dispute Resolution; Deadlock
|
25 | |||
10.4 Remedies Upon Event of Default; Termination on Breach
|
27 | |||
10.5 Mechanics of Sale
|
27 | |||
|
||||
11. DISSOLUTION
|
28 | |||
|
||||
11.1 Events of Dissolution
|
28 | |||
11.2 Dissolution by Agreement
|
28 | |||
11.3 Dissolution Upon Event of Default
|
28 | |||
11.4 Dissolution by Unilateral Option
|
29 | |||
11.5 Dissolution upon Notice
|
29 | |||
11.6 Financing Defaults
|
29 | |||
11.7 Winding Up
|
30 | |||
11.8 Liquidation Proceeds
|
30 | |||
|
||||
12. INDEMNIFICATION AND INSURANCE
|
30 | |||
|
||||
12.1 Indemnification
|
30 | |||
12.2 Insurance
|
31 | |||
12.3 Indemnification by the Shareholders
|
31 | |||
12.4 Assertion of Claims
|
32 | |||
|
||||
13. MISCELLANEOUS
|
32 | |||
|
||||
13.1 Governing Law
|
32 | |||
13.2 Effectiveness
|
32 |
(continued)
-
Articles of Incorporation of the Company
-
Committed Additional Capital Contributions
-
Management and Operating Reports
-
Capital Contributions
-
Monthly Reports
1. | Definitions, Rules of Construction and Documentary Conventions | |
1.1 | Certain Definitions . | |
(a) | Capitalized terms used but not defined in the main body of this Agreement shall have the respective meanings assigned to them in that certain Flash Alliance Master Agreement, dated as of the date hereof, among SanDisk, SanDisk Corporation and Toshiba (the Master Agreement ) or in Appendix A to the Master Agreement. | |
(b) | As used herein, the term Agreement means this Operating Agreement together with any Exhibits, Schedules, Appendices and Attachments hereto. | |
1.2 | Additional Definitions . The following capitalized terms used in this Agreement shall have the respective meanings assigned in the sections indicated below: |
1
Term | Defined in | |
Appendix A
|
Recitals | |
Articles
|
Recitals | |
Bankruptcy Event
|
Section 11.1(f) | |
Claim
|
Section 12.4(a) | |
Company
|
Recitals | |
Deadlock
|
Section 10.3(c) | |
Deadlock Dissolution Notice
|
Section 10.3(e) | |
Defaulting Shareholder
|
Section 10.4 | |
Designated Individuals
|
Section 10.3(b) | |
Director(s)
|
Section 3.5(a) | |
Executive Vice President
|
Section 5.2(a) | |
General Meeting of Shareholders
|
Section 4.1(b) | |
Indemnified Party
|
Section 12.4(a) | |
Indemnifying Party
|
Section 12.4(a) | |
Initiating Shareholder
|
Section 10.3(e) | |
Losses
|
Section 12.1(a) | |
Master Agreement
|
Section 1.1(a) | |
Nondefaulting Shareholder
|
Section 10.4 | |
Notified Party
|
Section 11.5 | |
Notifying Party
|
Section 11.5 | |
Permissible Assignee
|
Section 9.1(c) | |
Permissible Assignment Agreement
|
Section 9.1(c) | |
President
|
Section 5.2(a) | |
Responding Shareholder
|
Section 10.3(e) | |
SanDisk Representative
|
Section 5.3(a) | |
Shares
|
Recitals | |
Shareholder
|
Recitals | |
Termination Date
|
Section 11.4 | |
Toshiba Representative
|
Section 5.3(a) | |
Y4 Operating Committee
|
Section 5.3(a) |
1.3 | Rules of Construction and Documentary Conventions . The rules of construction, documentary conventions and general terms and conditions set forth in Appendix A shall apply to, and are hereby incorporated in, this Agreement. |
2
2. | General Provisions | |
2.1 | Ownership of Shares; Capital Increase. | |
(a) | The rights and obligations of the Shareholders shall be as set forth herein, subject to the Articles and mandatory provisions of the Companies Act. | |
(b) | The Shareholders shall effect the capital increases in the amounts and at the times stipulated in Schedule 2.1(b) . | |
2.2 | Name . The name of the Company is Flash Alliance Yugen Kaisha, which translates to Flash Alliance, Ltd. in English, and all Company business shall be conducted in that name or such other name as the Shareholders shall mutually agree. | |
2.3 | Principal Office . The principal office of the Company shall be located in Yokkaichi, Mie, or such other place as the Shareholders shall mutually agree. | |
2.4 | Term; Extension . The Company shall be terminated on December 31, 2021, unless extended by mutual written agreement of all of the Shareholders or earlier terminated in accordance with Section 11 (Dissolution). Any such extension shall be effective only upon the written agreement of all of the Shareholders and shall be on such terms and for such period as set forth in such agreement. The Shareholders agree to meet, no later than December 31, 2020, to discuss the possible extension of the term of the Company. | |
2.5 | Scope of Activity . The scope of activity of the Company shall be as set forth in Section 3.1 (Purpose) and 6.7 (Capacity Sharing Arrangement) of the Master Agreement. | |
2.6 | Powers . The Company shall have all the powers now or hereafter conferred by applicable law on limited liability companies formed under the Companies Act and may do any and all acts and things necessary, incidental or convenient to the purpose specified in Section 2.5 (Scope of Activity). | |
2.7 | Articles of Incorporation . On the date hereof and immediately following the execution of this Agreement, the Shareholders shall hold a general meeting of the Shareholders and, among other matters agreed between them, vote their Shares to amend the Articles so that they will be in the form of Exhibit A . In the event of any conflict between this Agreement and the Articles, the Shareholders confirm their intent that the terms of this Agreement shall prevail, and on the request of either Shareholder, the Shareholders shall amend the Articles to conform with this Agreement to the extent legally possible; provided that the inability to implement such amendment shall not relieve any Shareholder from liability for any breach of its obligations hereunder. | |
2.8 | Company Actions . The Shareholders hereby authorize the Company, and ratify (including for purposes of Section 4.1 (Matters Requiring the Approval of the Shareholders)) all action having been taken by or on behalf of the Company (including by its Shareholders and Directors) prior to the date hereof, to execute and deliver the FA |
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Operative Documents to which it is a party, including all certificates, agreements and other documents required in connection therewith. | ||
3. | Business Operations | |
3.1 | Business Dealings with the Company . Subject to Sections 4.1(a) (Matters Requiring the Approval of the Shareholders) and 5.1(d) (Matters Requiring the Approval of the Board of Directors), the Company may enter into contracts or agreements, or otherwise enter into transactions or dealings, with any Shareholder or any of their respective Affiliates, and derive and retain profits therefrom. The validity of any such contract, agreement, transaction or dealing or any payment or profit related thereto or derived therefrom shall not be affected by any relationship between the Company and any Shareholder or any of their respective Affiliates, subject to the Companies Act. The Shareholders agree that where practicable and contractually allowable (based on competitive price, availability and other material terms), the Board of Directors will consider whether to utilize any Shareholder or any of their respective Affiliates as the preferred providers of products and services that may be required in the manufacturing operations of the Company, subject to the ability of such Shareholder or Affiliate to meet the Companys manufacturing requirements on competitive terms. Unless otherwise approved by the Shareholders or otherwise expressly provided in the FA Operative Documents, all business dealings of the Company with any Shareholder or any of their respective Affiliates shall be on the most beneficial standard commercial terms and conditions, including volume, price and credit terms, currently offered or made available to unaffiliated customers by such Shareholder or Affiliate, as the case may be, with respect to the products and services to be offered and provided to the Company. | |
3.2 | Other Activities . The provisions of Section 6.13 (Other Activities) of the Master Agreement are hereby incorporated herein by reference. | |
3.3 | Personnel . The provisions of Section 6.10 (FA Management Structure and Headcount) of the Master Agreement are hereby incorporated herein by reference. | |
3.4 | Business Plans and Related Matters . | |
(a) | Initial and Subsequent Business Plans . The initial Business Plan of the Company, setting forth the Companys products, pricing, operating budget, capital expenditures, expense budgets, financing plans and other business activities of the Company through the [ * ], will be agreed upon and certified by the Board of Directors as soon as practicable after the Closing. |
(i) | The initial Business Plan and each successive Business Plan will, at the time such Business Plan is in effect, represent the Companys then-current forecast of the proposed operations of the Company. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(ii) | An updated Business Plan complying with Section 3.4(b) (Form and Scope) in respect of each successive Fiscal Year after the [*] shall be prepared under the direction of the Chief Executive Officer of the Company and submitted to the Board of Directors for review and approval not later than the [*] preceding the commencement of such Fiscal Year. | ||
(iii) | When the proposed Business Plan in respect of a Fiscal Year is approved by the Board of Directors, it shall constitute the Business Plan of the Company for such Fiscal Year and the Company and its directors and employees shall implement such Business Plan, which shall be the basis of the Companys operations for such Fiscal Year. Upon approval, the approved Business Plan shall constitute the approved operational, financing and capital expenditure budget. The Board of Directors shall have the authority pursuant to Section 5.1(d) (Matters Requiring the Approval of the Board of Directors) to amend the most recently approved Business Plan, including the operating budget contained therein, and any Shareholder may request that the Board of Directors review the Companys operating results and prospects, as well as market conditions, and consider a proposal for amendment or review of the most recently approved Business Plan at any regularly scheduled or special meeting of the Board of Directors and upon such request, the Board of Directors shall in good faith make such review and/or consider such proposal. |
(b) | Form and Scope . Each Business Plan shall contain a statement of long-range strategy and short-range tactics detailing quantitative and qualitative goals for the Company and relating the attainment of those goals to the Companys manufacturing objectives, and shall include such items as planned capital expenditures, planned product development, planned product output and projected product cost, sales forecasts, total headcount, total spending and revenue and profit projections, financing plans and tax planning. No Business Plan shall be deemed to be an amendment of this Agreement. Any capital commitments made in any Business Plan for a period after the Fiscal Year to which the Business Plan applies shall be considered non-binding for purposes of any FA Operative Document. | |
(c) | Approval . Other than the initial Business Plan (which shall be approved in accordance with Section 3.4(a)), the Board of Directors shall vote upon the proposed Business Plan, with such modifications as it may deem necessary, before [ * ] preceding the commencement of each Fiscal Year. Subject to Sections 10.3(c), (e) and (f) (Dispute Resolution; Deadlock), pending approval by the Board of Directors of any proposed Business Plan, the most recently approved Business Plan shall continue in effect; provided, however , the Board of Directors may, by unanimous vote, adopt an amended interim business plan for the Companys operations until it is able to reach agreement on the proposed Business Plan for the forthcoming year. | |
3.5 | Standard of Care . |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(a) | Each Shareholder, and each director of the Company, as defined in the Companies Act (each, a Director ), shall be entitled to rely (unless such Person has knowledge or information concerning the matter in question that makes reliance unwarranted) on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by: |
(i) | one or more managers or employees of the Company who such Shareholder or Director believes in good faith to be reliable and competent in the matters presented; or | ||
(ii) | legal counsel, public accountants or other Persons as to matters that such Shareholder or Director believes to be within such Persons professional or expert competence. |
(b) | Each Shareholder shall also be entitled to rely upon information, opinions, reports or statements, including financial statements and other financial data, prepared or presented by the Board of Directors pursuant to the responsibilities delegated to the Board of Directors pursuant to this Agreement. | |
3.6 | Use of Names . Except as may be expressly provided in the FA Operative Documents, nothing in this Agreement shall be construed as conferring on the Company or any Shareholder the right to use in advertising, publicity or other promotional activities any name, trade name, trademark or other designation of any other Shareholder or any of its Affiliates, including any contraction, abbreviation or simulation of any of the foregoing. | |
4. | Actions by the Shareholders | |
4.1 | Matters Requiring the Approval of the Shareholders. | |
(a) | Notwithstanding any provision of the Articles to the contrary, no action shall be taken by or on behalf of the Company in connection with any of the following matters without the prior unanimous written approval of the Shareholders: |
(i) | any amendment, restatement or revocation of the Articles; | ||
(ii) | any amendment to or renewal of any FA Operative Document between the Company and any Shareholder or any of their respective Affiliates; | ||
(iii) | any change in the scope of activity or strategic direction of the Companys business; | ||
(iv) | any merger, consolidation or other business combination to which the Company or any of its Subsidiaries is a party, or any other transaction to which the Company is a party resulting in a Change of Control of the Company; | ||
(v) | any sale, lease, pledge, assignment or other disposition of assets of the Company in an amount (in terms of consideration to be received by the Company) in excess of ¥5,000,000 in one transaction or a series of related transactions, other than as |
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expressly provided for in the FA Operative Documents or as set forth in the most recently approved Business Plan; | |||
(vi) | the approval of any transaction or agreement between the Company and any Shareholder or any of their respective Affiliates (other than transactions or agreements expressly provided for or authorized by an FA Operative Document or the most recently approved Business Plan) or any amendment thereto (including the waiver of any material term thereof), other than any such transaction, agreement or amendment that contains generally available, arms length commercial terms and is in an amount (in terms of payments to be made or the value of services or products to be provided or delivered) less than ¥5,000,000 for any single transaction or agreement or for substantially identical transactions within a 24 month period (or a waiver that does not materially adversely affect the rights and benefits of the Company), other than as set forth in the most recently approved Business Plan; | ||
(vii) | incurring Indebtedness in an amount in excess of ¥1,000,000 or an increase in aggregate Indebtedness in excess of ¥1,000,000 in any calendar quarter, other than as authorized by Section 5.1(d) (Matters Requiring the Approval of the Board of Directors); | ||
(viii) | with respect to the Company or any of its Subsidiaries, (A) the voluntary commencement of any proceeding or the voluntary filing of any petition seeking relief under Japanese or foreign bankruptcy, insolvency, receivership or similar law, (B) the consent to the institution of, or the failure to contest in a timely and appropriate manner, any involuntary proceeding or any involuntary filing of any petition of the type described in clause (A) above, (C) the application for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company, or for a substantial part of its property or assets, (D) the filing of an answer admitting the material allegations of a petition filed against the Company in any such proceeding described above, (E) the consent to any order for relief issued with respect to any such proceeding described above, (F) the making of a general assignment for the benefit of creditors, (G) the admission in writing of the Companys inability, or the failure of the Company generally, to pay its debts as they become due or (H) the taking of any action for the purpose of effecting any of the foregoing; | ||
(ix) | subject to Section 9.1(a) and Appendix A , the granting of consent to the transfer of any Shares; | ||
(x) | the winding up, dissolution or liquidation of the Company or any of its Subsidiaries (other than the dissolution of the Company pursuant to and as contemplated by Section 11 (Dissolution)); | ||
(xi) | the acquisition of any business, entry into any joint venture or partnership, or creation of any direct or indirect Subsidiary of the Company; |
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(xii) | the commitment of the Company to any development project; | ||
(xiii) | the sale, license, assignment or other Transfer of any of the Companys intellectual property owned or in its possession (including any technology or know-how, whether or not patented, any trademark, trade name or service mark, any copyright or any software or other method or process); | ||
(xiv) | any increase or decrease in the capital amount of the Company, whether by increasing the number of the Shares or otherwise; | ||
(xv) | any other matter material to the operation, staffing, business or financial condition of the Company; and | ||
(xvi) | any matter required by the Companies Act to be decided, in the case of a limited liability company ( tokurei yugen kaisha ) by its shareholders. |
(b) | Each Shareholder may exercise its vote by proxy; provided, that such proxy shall submit to the Company, prior to the relevant General Meeting of Shareholders, as defined in the Companies Act (the General Meeting of Shareholders ), a power of attorney duly signed by the Shareholder and/or other document establishing its power of representation; and provided, further, that the conferment of the power of proxy for one General Meeting of Shareholders shall not be deemed to be a conferment of the power of proxy for any subsequent General Meeting of Shareholders. | |
(c) | Notwithstanding the requirements of Section 4.1(a) (Matters Requiring the Approval of the Shareholders) relating to agreements between the Company and any Shareholder or any of their respective Affiliates, any question regarding a material default or alleged material default (including any question regarding a breach of representation or alleged breach of representation) under any FA Operative Document between the Company and any Shareholder or any of their respective Affiliates shall be subject to the dispute resolution process set forth in Sections 10.3(a) and (b) (Dispute Resolution; Deadlock). | |
4.2 | General Meetings of Shareholders . | |
(a) | An annual General Meeting of Shareholders shall be held within three (3) months from the date immediately following the last day of each Fiscal Year of the Company. A special General Meeting of Shareholders may be held at any time and may be called by a resolution of the Board of Directors or in any other manner permitted by the Companies Act or the Articles. All General Meetings of Shareholders shall be called and held in accordance with the Articles and the Companies Act. The General Meetings of Shareholders may be held at the Companys principal office or at any other location, or, if all the Shareholders agree, and to the extent then permitted by the Companies Act, by telecommunications conferences by means of which all persons participating in the meeting can hear and be heard by each other, provided that such communications equipment continues to be operational throughout the meeting. To the extent then permitted by the Companies Act, the Shareholders may by unanimous written consent effect any resolution that could otherwise be resolved at a meeting of the Shareholders. |
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(b) | Except as otherwise provided in this Agreement, each Shareholder shall be entitled to one vote for each Share owned by such Shareholder. | |
(c) | The minutes of every General Meeting of Shareholders shall be kept with the Companys records referred to in Section 5.5 (Records). | |
(d) | The quorum necessary for any General Meeting of Shareholders shall be those Persons entitled to cast all of the votes held by the Shareholders. A quorum shall be deemed not to be present at any meeting for which notice was not properly given under the Articles or the Companies Act, unless the Shareholder as to whom such notice was not properly given attends such meeting without protesting the lack of notice or duly executes and delivers a written waiver of notice or a written consent to the holding of such meeting. | |
4.3 | Restrictions on Shareholders . No Shareholder may, without the prior written consent of the other Shareholder: | |
(a) | confess any judgment against the Company; | |
(b) | enter into any agreement on behalf of or otherwise purport to bind the other Shareholder or the Company; | |
(c) | do any act in contravention of this Agreement; | |
(d) | except as contemplated by Section 11 (Dissolution), dispose of the goodwill or the business of the Company; or | |
(e) | assign the property of the Company in trust for creditors or on the assignees promise to pay any Indebtedness of the Company. | |
5. | Management and Operations of Company | |
5.1 | Meetings of the Board of Directors . | |
(a) | General . The Shareholders agree to form a steering committee consisting of Directors nominated by each of the Shareholders. The Shareholders acknowledge and agree that while under the Companies Act a limited liability company ( tokurei yugen kaisha ) does not have a board of directors, for convenience they will in this Agreement (and elsewhere in the FA Operative Documents) refer to such committee as the Board of Directors ( yakuin kai ). Except as otherwise provided herein, as between the parties the Board of Directors is vested with complete and exclusive power to direct and control the Company and to manage the Company as provided by the Articles and this Agreement, as it may be amended from time to time. The Board of Directors shall have the power to delegate such responsibilities as it may deem appropriate from time-to-time (including certain day-to-day responsibilities set forth in Section 5.2 (Officers; Employees) and Section 5.3 (Y4 Operating Committee)). The Shareholders shall cooperate in taking any necessary corporate steps under the Companies Act to attain the purposes of this Section 5, including without limitation, approval by the Directors and general meeting of shareholders with respect to decisions made by the Board of Directors. |
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(b) | Members of the Board of Directors; Voting; etc. |
(i) | The Board of Directors of the Company shall consist of six (6) Directors, three (3) of which shall be nominated by Toshiba, and the other three (3) of which shall be nominated by SanDisk; provided that the total number of Directors of the Company may be changed by mutual agreement of the Shareholders. Each Shareholder shall vote its Shares to elect as Directors those persons nominated by the other Shareholder. | ||
(ii) | Directors shall be elected to serve until complete adjournment of the annual meeting of Shareholders for the fiscal year last to end within one (1) year after his or her assumption of the directorship, and shall be eligible for re-election. | ||
(iii) | Subject to the fiduciary duty of Directors under the Companies Act, each Director shall serve at the pleasure of the designating Shareholder and may be removed as such, with or without cause, and his successor designated, by the designating Shareholder. Each Shareholder shall have the right to designate a replacement Director in the event of any vacancy among such Shareholders appointees. Each Shareholder shall vote its Shares in favor of any such removal and in favor of any such replacement Director. | ||
(iv) | Each Shareholder shall bear any cost incurred by any Director nominated by it to serve on the Board of Directors, and no Director shall be entitled to compensation from the Company for serving in such capacity. | ||
(v) | Each Shareholder shall notify the other Shareholder and the Company of the name, business address and business telephone, e-mail address and facsimile numbers of each Director that such Shareholder has nominated. Each Shareholder shall promptly notify the other Shareholder and the Company of any change in such Shareholders nominated or of any change in any such address or number. | ||
(vi) | For purposes of any approval or action taken by the Board of Directors, each Director shall have one vote. Unless otherwise required under Japanese law, unanimous agreement of all Directors is required for valid action to be taken by the Board of Directors. | ||
(vii) | At any meeting of the Board of Directors, each Director may exercise his vote by proxy; provided, that such proxy shall submit to the Company, prior to the relevant meeting, a power of attorney duly signed by the Director and/or other document establishing its power of representation; and provided, further, that the conferment of the power of proxy for one meeting of the Board of Directors shall not be deemed to be a conferment of the power of proxy for any subsequent meeting of the Board of Directors. | ||
(viii) | The quorum necessary for any meeting of the Board of Directors shall be those Directors entitled to cast all of the votes held by the members of the Board of Directors. A quorum shall be deemed not to be present at any meeting for which |
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notice was not properly given under Section 5.1(c) (Meetings, Notices, etc.), unless the Director or Directors as to whom such notice was not properly given attend such meeting without protesting the lack of notice or duly execute and deliver a written waiver of notice or a written consent to the holding of such meeting. |
(c) | Meetings, Notice, etc . Meetings of the Board of Directors shall be held at such location or locations as may be selected by the Board of Directors from time to time. |
(i) | Regular meetings of the Board of Directors shall be held on such dates and at such times as shall be determined by the Board of Directors and shall be held at least on a quarterly basis, unless otherwise agreed by the Directors. | ||
(ii) | Notice of any regular meeting or special meeting pursuant to Section 5.1(c)(iii) shall be given to each Director at least ten (10) Business Days prior to such meeting in the case of a meeting in person or at least five (5) Business Days prior to such meeting in the case of a meeting by conference telephone or similar communications equipment pursuant to Section 5.1(c)(vii), which notice shall state the purpose or purposes for which such meeting is being called and include any supporting documentation relating to any action to be taken at such meeting. | ||
(iii) | Special meetings of the Board of Directors may be called by any Director by notice given in accordance with the notice requirements set forth in Section 5.1(c)(ii); provided that the Directors appointed by the Shareholder that is not represented by the Director calling such special meeting shall be entitled to select a convenient location for the meeting and to suggest an alternative time or times if the designated time is not convenient for them. No action may be taken and no business may be transacted at such special meeting which is not identified in such notice unless (A) such action or business is incidental to the action or business for which the special meeting is called or (B) such action or business does not materially adversely affect any Shareholder or the Company. | ||
(iv) | Each Shareholder may invite a reasonable number of observers to all meetings of the Board of Directors. | ||
(v) | The minutes of each meeting of the Board of Directors shall be delivered to all Directors within twenty (20) calendar days after such meeting. Material to be presented at a Board of Directors meeting shall be delivered to all Directors ten (10) Business Days prior to such meeting if feasible in light of the circumstances giving rise to the need for such meeting, or in any event a minimum of five (5) Business Days prior to such meeting. | ||
(vi) | The actions taken by the Board of Directors at any meeting, however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, each Director as to whom such meeting was improperly held duly executes and delivers a written waiver of notice or a written consent to the holding of such meeting; provided, |
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however, any Director who is present at a meeting and does not protest the failure of notice shall be deemed to have received adequate notice thereof. A vote of the Board of Directors may be taken only (A) at a meeting of the members thereof duly called and held or (B) without a meeting by the execution by the Directors eligible to cast all the votes on the Board of Directors of a consent setting forth the action so taken, and identified as a unanimous written consent of the Directors. | |||
(vii) | Upon the consent of both Representative Directors, meetings of the Board of Directors may be held by conference telephone or similar communications equipment by means of which all Directors participating in the meeting can be heard by all other participants; provided that such communications equipment continues to be operational throughout the meeting. Any Director may elect to participate in a meeting by conference telephone or similar communications equipment upon sufficient advance notice to permit arrangements therefor to be made. | ||
(viii) | At each meeting, the Board of Directors shall consider (A) any of the items set forth in Section 5.1(d) (Matters Requiring the Approval of the Board of Directors) that may require the Board of Directors attention, (B) any items added to the Board of Directors agenda for discussion by any Shareholder and (C) such other matters as the Board of Directors decides to review; provided , however , that the Directors shall not be required to vote or take other action (other than carrying on discussions) on matters that were not placed on the meeting agenda at least five (5) Business Days in advance of the time set for the meeting unless such action or business is incidental to the action or business which was otherwise properly on the agenda and considered at such meeting. | ||
(ix) | The Board of Directors shall, from time to time, elect one of its members to preside at its meetings. The Board of Directors may establish reasonable rules and regulations to (A) require officers to call meetings and perform other administrative duties, (B) limit the number and participation of observers, if any, and require them to observe confidentiality obligations and (C) otherwise provide for the keeping and distribution of minutes and other internal Board of Directors governance matters not inconsistent with the terms of this Agreement. | ||
(x) | Subject to the Companies Act, the Board of Directors shall have the authority to establish subcommittees and to delegate to any such subcommittee any of the Board of Directors responsibilities; provided, however, the power of the Board of Directors to approve the matters set forth in Section 5.1(d) (Matters Requiring the Approval of the Board of Directors) may not be delegated to a subcommittee. |
(d) | Matters Requiring the Approval of the Board of Directors . Notwithstanding any provision of the Articles to the contrary, no action may be taken by or on behalf of the Company in connection with any of the following matters without the unanimous written approval of the Board of Directors: |
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(i) | any sale, lease, pledge, assignment or other disposition of assets of the Company in an amount (in terms of consideration to be received by the Company) in excess of ¥1,000,000 in one transaction or a series of related transactions, other than as set forth in the most recently approved Business Plan; | ||
(ii) | the approval of any transaction or agreement between the Company and any Shareholder or any of their respective Affiliates (other than transactions or agreements expressly provided for or authorized by an FA Operative Document or the most recently approved Business Plan) or any amendment thereto (including the waiver of any material term thereof), other than any such transaction, agreement or amendment that contains generally available, arms length commercial terms and is in an amount (in terms of payments to be made or the value of services or products to be provided or delivered) less than ¥1,000,000 for any single transaction or agreement or for substantially identical transactions within a 24 month period (or a waiver that does not materially adversely affect the rights and benefits of the Company), other than as set forth in the most recently approved Business Plan; | ||
(iii) | the purchase, lease, license or other acquisition of (A) personal property or services or (B) any list of capital equipment approved by the Shareholders, in each case in an amount (in terms of payments to be made or the value of services of products to be provided or delivered) exceeding ¥1,000,000 in any one transaction or a series of related transactions, other than as provided for in the most recently approved Business Plan; | ||
(iv) | the selection of attorneys, accountants, auditors and financial advisors; | ||
(v) | the adoption of accounting and tax policies, procedures and principles; | ||
(vi) | incurring any Indebtedness; | ||
(vii) | the hiring or termination of any employees referenced in Section 5.2(a) (Officers; Employees) who are not members of the SanDisk Team, if any; | ||
(viii) | the adoption of or changes to the forms of confidentiality, assignment or disclosure of intellectual property or employment agreements to be entered into between the Company and its employees; | ||
(ix) | the adoption of or changes to any employee benefit plan, including any incentive compensation plan; | ||
(x) | the amount and timing of any distributions; | ||
(xi) | the commencement or settlement of litigation by or against the Company; | ||
(xii) | the purchase, sale or lease (as lessor or lessee) of any real property; | ||
(xiii) | any acquisition of securities or any other ownership interest in any entity; |
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(xiv) | the making of any public announcements by or on behalf of the Company; provided, that in any case any such public announcements must otherwise comply with the requirements of Section 5.2 (Public Announcements) of the Master Agreement, if applicable; | ||
(xv) | the entry into or amendment of any collective bargaining arrangements or the waiver of any material provision or requirement thereof; | ||
(xvi) | the approval of a proposed Business Plan, or the amendment to the most recently approved Business Plan, in each case including the operating budget contained therein; | ||
(xvii) | the incurrence of capital expenditures in excess of those provided for in the most recently approved Business Plan or the commitment of the Company to any development projects other than as provided for in the most recently approved Business Plan; | ||
(xviii) | subject to Section 5.1(c)(x), the establishment of any subcommittees or delegation of authority of the Board of Directors; | ||
(xix) | the authorization and approval of any filing with, public comments to, or negotiation/discussion with, any Governmental Authority (excluding regular operating filings and other routine administrative matters); | ||
(xx) | the approval of Unique Activities to be performed by the Company at the request of any Shareholder, in connection with which the Board of Directors shall be satisfied that such Shareholder has reached agreement with the Company as to the payment by such Shareholder of all costs incurred in connection with such Unique Activities and that adequate provision has been made by such Shareholder for the funding of any additional required capital expenditures required in conjunction with such Unique Activities; | ||
(xxi) | the decision of the Company to negotiate external sources of additional wafer fabrication capacity for NAND Flash Memory Products; | ||
(xxii) | any dispute referred to the Board of Directors by the Y4 Operating Committee pursuant to Section 5.3(b); and | ||
(xxiii) | such other matters as the Board of Directors decides, in its sole discretion, to review. |
5.2 | Officers; Employees . |
(a) | Unless otherwise mutually agreed by the Shareholders, the Directors of the Company with specific titles shall be designated as: the Representative Director/President/Chief Executive Officer ( President ) and the Representative Director/Executive Vice President ( Executive Vice President ). The President and Executive Vice President shall be elected by the Board of Directors and serve three successive one-year terms, with the first |
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such set of terms ending at complete adjournment of the annual meeting of Shareholders for the fiscal year last to end within one (1) year after his or her assumption of the officership. Toshiba shall have the right to nominate the first President and SanDisk shall have the right to nominate the first Executive Vice President, and then the Shareholders will then alternate such nominating rights for each three year term for such positions. Each nominee for the President and for the Executive Vice President shall be subject to the consent of the non-nominating Shareholder, which consent shall not unreasonably be withheld. In addition to the President and Executive Vice President, the Board of Directors may appoint such other officers from time to time as it deems necessary or advisable in the conduct of the business and affairs of the Company. Any individual may hold more than one office. |
(b) | The President shall have the authority to retain other senior management of the Company, subject to the prior approval of the Board of Directors. |
(c) | The Company shall have agreements with and policies applicable to each of its officers, employees and consultants who are not members of the SanDisk Team, in forms acceptable to each Shareholder, and shall also have appropriate arrangements with its members of the SanDisk Team, in each case with respect to (i) protection of confidential information, (ii) patent and copyright assignment, (iii) invention disclosure (including improvements and advances) and assignments thereof and (iv) in respect of certain employees who are not members of the SanDisk Team, non-competition. |
5.3 | Y4 Representatives; Y4 Operating Committee . | |
(a) | The Company shall have an Operating Committee for Y4 Facility operations (the Y4 Operating Committee ) consisting of a senior executive designated by each of SanDisk and Toshiba (each such individual the SanDisk Representative and the Toshiba Representative , respectively) each of whom shall represent the designating Party on a day-to-day basis at the Y4 Facility. Each Shareholder shall notify the other Shareholder in advance of any replacement of its representative. If a Shareholder requests in good faith that the other Shareholders representative be replaced with another person from the other Shareholders organization, the other Shareholder shall consider and discuss in good faith with the requesting Shareholder such request, provided that such replacement, if any, shall be determined solely by such other Shareholder. [*] | |
(b) | The Y4 Operating Committee shall work together and endeavor to make the Y4 Facility the most advanced and competitive memory fabrication facility in the world. The Y4 Operating Committee shall have the authority to determine all matters concerning the day-to-day operations of the Company and the Y4 Facility [*] subject to those matters reserved herein to the Board of Directors or the Shareholders as well as to the requirements of this Agreement, the Articles and the Companies Act. The Y4 Operating Committee shall communicate on a day-to-day basis with respect to the status of Y4 Facility operations and any other issues that may arise, and shall meet in person no less than two (2) times per week, or such other times and frequency as may be agreed upon by all members of such committee. If the members of the Y4 Operating Committee are unable to agree on any issue after thirty (30) days, they shall submit such matter together |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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with their respective recommendations to the Board of Directors, which shall endeavor to immediately resolve the issue. If the Board of Directors is unable to agree on any such issue after ten (10) days, such issue shall be submitted to the Management Committee for final resolution. | ||
(c) | The Y4 Operating Committee shall hold a monthly review meeting in English at the Yokkaichi Facility on [ * ] of each calendar month, unless otherwise agreed by the Shareholders or the Y4 Operating Committee. The Y4 Operating Committee shall prepare and distribute to each Shareholder (at least three Business Days in advance of the monthly review meetings) monthly reports in English with respect to the engineering activities, operations and financial affairs of the Company and the Y4 Facility. | |
(d) | Upon the request of either Shareholder, the Y4 Operating Committee shall provide the Shareholders with (i) any management or operation reports of the Company related to the Y4 Facility (which neither Shareholder shall have an obligation to translate) and (ii) simultaneously in Japanese and English, those management and operating reports identified on Schedule 5.3 as mutually agreed upon from time to time by the Parties. Upon reasonable request from SanDisk, Toshiba employees shall explain such reports to SanDisks employees and respond to questions from SanDisks employees; provided, however that SanDisk acknowledges and agrees that Toshiba shall not be responsible for SanDisks failure to understand any such reports. | |
5.4 | Insurance . The Company shall maintain insurance against such liabilities and other risks associated with the conduct by the Company of its business and in such amounts and against such risks as agreed by the Shareholders, and in any event as is generally maintained by companies engaged in a business similar to that of the Company. | |
5.5 | Records . The Company shall maintain the following records at its principal office: | |
(a) | a current list of the full name set forth in alphabetical order and last known business address of each Shareholder and Director; | |
(b) | a copy of the Articles, and all articles of amendment thereto; | |
(c) | a copy of this Agreement and all amendments hereto; | |
(d) | a copy of all financial statements of the Company for the three most recent Fiscal Years; | |
(e) | a copy of the Companys income tax or information returns and reports, if any, for the three most recent years; | |
(f) | a copy of all indentures, loan agreements, lease agreements, guarantees, security agreements, promissory notes, licensing or other intellectual property agreements, agreements that relate to the payment or receipt by the Company of amounts in excess of ¥5,000,000 or that are not terminable by the Company upon ninety (90) days notice, |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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documents, if any, evidencing employee compensation arrangements, employee pension or other benefit arrangements, and similar documents and instruments executed and delivered by the Company; | ||
(g) | a list of all contributions made to the Company by the Shareholders; and | |
(h) | a record of all distributions by the Company to each Shareholder. |
6. | Capital Contributions; Distributions | |
6.1 | Capital Contributions . | |
(a) | The Shareholders shall be deemed to have made Capital Contributions to the Company in the amounts set forth opposite their respective names on Schedule 6.1 . | |
(b) | Except as provided in Section 2.1(b), no Shareholder shall be obligated to make any additional Capital Contributions to the Company, unless otherwise mutually agreed upon by the Shareholders in writing, in which case such additional Capital Contributions shall be made in proportion to the Shareholders respective Percentages as of the date of such additional Capital Contribution. | |
6.2 | Distributions . | |
(a) | General . Notwithstanding any provision of the Articles to the contrary, and subject to Section 11.8 (Liquidation Proceeds), unless otherwise agreed by the Shareholders, no distributions of cash (or in the case of Section 11.8, other property) shall be made by the Company to the Shareholders for a period of three (3) years from the date of this Agreement, and thereafter all distributions of cash (or, in the case of Section 11.8, other property) by the Company to the Shareholders shall be made in Japanese Yen at the times and in the amounts determined by the Board of Directors. Except as provided in Section 11.8, each distribution to the Shareholders shall be made on a pro rata basis based upon the respective Percentages of the Shareholders as of the date of such distribution. | |
(b) | Distribution for Taxes . Notwithstanding Section 6.2(a), subject to the Companies Act and other applicable law, the Company shall make, in respect of each Fiscal Year in which SanDisk must recognize taxable income of the Company in SanDisks US federal, state and local income and franchise tax returns, a distribution to SanDisk to the extent necessary to meet SanDisks aggregate US tax liability with respect to such taxable income, with such liability calculated at the highest US, state and local corporate tax rates as may be then applicable to SanDisk. SanDisk will make a request upon the Company |
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for such distribution as soon as is practicable after the filing of SanDisk Corporations applicable US tax returns. Following receipt of such request, the Company shall make the requested distribution on the next date on which the Company is permitted to make distributions pursuant to the Companies Act. Simultaneously therewith, the Company shall also make a distribution to Toshiba in an amount equal to the amount of the per Share distribution made to SanDisk pursuant to this Section 6.2(b). Any such prior distributions shall be taken into account upon any purchase and sale of Shares under Section 10 (Certain Agreements of the Shareholders) or dissolution of the Company under Section 11 (Dissolution) hereof. If necessary, the Board of Directors shall consider capital reductions to the extent that any such capital reduction will not adversely affect the Y4 Facilitys operations. | ||
6.3 | No Interest . No interest shall be payable to the Shareholders on their Capital Contributions or otherwise in respect of the capital of the Company. | |
6.4 | Return of Capital Contributions . Except as expressly provided herein, no Shareholder shall be entitled to the return of any part of such Shareholders Capital Contributions. | |
7. | Additional Contributions | |
No Shareholder shall be obligated under this Agreement or the Articles to contribute any additional amounts to the Company or otherwise to be liable for the debts and obligations of the Company. | ||
8. | Accounting and Taxation | |
8.1 | Financial Accounting Conventions . | |
(a) | The Company shall adopt and follow Japanese GAAP. | |
(b) | Notwithstanding anything to the contrary in Appendix A , the first Fiscal Year shall begin on the date of formation of the Company and end on March 31, 2007. | |
(c) | The Company shall in principle (but subject to applicable Law) utilize a five-year straight line depreciation method for manufacturing equipment. | |
8.2 | Maintenance of Books of Account . The Company shall keep or cause to be kept at its principal office, or such other location as the Board of Directors shall designate, full and complete books of account. The books of account shall be maintained in a manner that provides sufficient assurance that transactions of the Company are recorded so as to comply with all applicable laws and to permit (a) the preparation of the Companys consolidated financial statements in accordance with Japanese GAAP and (b) the Shareholders to account for their interest in the Company in accordance with Japanese GAAP. | |
8.3 | Financial Statements . |
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(a) | Annual Statements . As soon as practicable following the end of each Fiscal Year (and in any event not later than fifty-two (52) days after the end of such Fiscal Year), the Company shall prepare and deliver to each Shareholder and each Director, audited consolidated and consolidating balance sheets of the Company as of the end of such Fiscal Year and the related audited consolidated and consolidating statements of operations, the Shareholders capital accounts and cash flows of the Company for such Fiscal Year (or similar statements if such statements change as the result of changes in Japanese GAAP), together with appropriate notes to such consolidated financial statements, and in each case setting forth in comparative form the corresponding figures for the preceding Fiscal Year and for the budget for the Fiscal Year just completed. Such financial statements shall be accompanied by (i) the report of the Accountants to the effect that such financial statements (except for the comparison to the budget) have been prepared in conformity with Japanese GAAP (except as otherwise specified in such report) and that the audit of such financial statements has been performed in accordance with Japanese GAAP and (ii) a report as to all transactions (including the nature, type and amount) between the Company and each Shareholder and their respective Affiliates. The Company shall conduct its business such that the report of the Accountants shall not contain any qualifications as to the scope of the audit or with respect to the Companys compliance with Japanese GAAP, except for changes in methods of accounting in which such Accountants concur and except that the foregoing shall not be deemed to obligate any Shareholder to contribute any capital to the Company. The Company shall also provide SanDisk with an English version of such report, which shall contain sufficient data to enable SanDisk to prepare a reconciliation of the Companys financial reports from Japanese GAAP to United States GAAP. The Company shall deliver to SanDisk, at SanDisks request and expense, any other financial information related to the Company that is reasonably requested by SanDisk for US Federal, state, and local income or franchise tax purposes. | |
(b) | Quarterly Statements . |
(i) | As soon as practicable following the end of each Fiscal Quarter (and in any event not later than ten (10) days after the end of such Fiscal Quarter), the Company shall prepare and deliver to each Shareholder and each Director unaudited consolidated and consolidating balance sheets of the Company as of the end of such Fiscal Quarter and the related unaudited consolidated and consolidating statements of operations, the Shareholders capital accounts and cash flows of the Company for such Fiscal Quarter and for the Fiscal Year to date (or similar statements if such statements change as the result of changes in Japanese GAAP), in each case setting forth in comparative form the corresponding figures for the preceding Fiscal Quarter, for the corresponding Fiscal Quarter of the preceding Fiscal Year and for the budget for the Fiscal Quarter just completed and for the Fiscal Year to date. | ||
(ii) | The financial statements for such Fiscal Quarter shall be accompanied by a certificate of the principal accounting or financial officer of the Company to the effect that such financial statements have been prepared under such officers |
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supervision and that, although such financial statements do not contain the footnotes and other disclosures required to be presented in interim financial statements by Japanese GAAP, such financial statements, in such officers judgment, fairly present the financial condition and results of operations of the Company as of the date and for the periods indicated, subject to normal recurring year-end audit adjustments. The Company shall deliver to SanDisk, at SanDisks request and expense, any other financial information related to the Company that is reasonably requested by SanDisk for US financial reporting or Federal, state, and local income or franchise tax purposes. |
(c) | The Company shall obtain a professional tax audit from a qualified accountant complying with Japanese GAAP by May 22 of each year (including an English translation thereof). As part of its engagement of its auditors, the Company shall cause its auditors to provide such English language financial statements, audit reports, US GAAP reconciliations and consents as are required (or reasonably requested by SanDisk) in connection with SanDisk Corporations filings with the United States Securities and Exchange Commission; provided that SanDisk shall pay for all the costs relating to such auditors work. SanDisk may also request that the Company provide SanDisk with comfort letters in the manner customary for Japanese auditors in connection with public offerings in the United States, at SanDisks own expense. |
(d) | Monthly Reports . Each month, the Company shall prepare and deliver to each Shareholder and each Director the reports and other information set forth on Schedule 8.3 . Such reports and other information will become available at the respective times set forth on Schedule 8.3 . |
(e) | Business Plan . Subject to Sections 10.3(c), (e) and (f), and provided that the most recently approved Business Plan does not provide for the next Fiscal Year, the Company shall, not later than [ * ] prior to the commencement of each Fiscal Year, deliver to each Shareholder a copy of the Business Plan, including the Companys monthly budgets, for the upcoming Fiscal Year, as approved by the Board of Directors. |
(f) | Legal Proceedings . The Company shall promptly inform each Shareholder and each Director with regard to litigation, governmental investigations, material government notices and threatened legal proceedings. |
8.4 | Other Reports and Inspection . The Company shall furnish promptly to each Shareholder such other reports, financial data and information relating to the Company as such Shareholder may reasonably request and shall require the Accountants to provide to each Shareholder copies of any document related to the Company in the possession of the Accountants as such Shareholder may reasonably request. The Company shall, upon reasonable prior notice and during normal business hours, make available to each Shareholder and their respective professional advisors, from time to time as requested by such Shareholder, all properties, assets, books of account, corporate records, contracts and documentation, if any, relating to employee benefits of the Company, and any other |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(i) | provides for the grant by such Shareholder to the Permissible Assignee of the right to receive amounts equal to distributions received by such Shareholder from the Company pursuant to Section 6 or 11 of this Agreement, but does not give the Permissible Assignee any Shares or any other rights whatsoever with respect to the Company; | ||
(ii) | provides that under no circumstances (including any Bankruptcy Event in respect of such Shareholder) may any claim be made by the Permissible Assignee against the Company or any such Shareholder or any Affiliate of any such Shareholder or any of their respective assets, under or in connection with such agreement, even if such Shareholder defaults in performance thereunder; | ||
(iii) | provides that the rights of the Permissible Assignee under such agreement may not be transferred without the prior written consent of each Shareholder and that any such Transfer without such consents shall be null and void; | ||
(iv) | may not be amended, nor any provision thereof waived, in a manner that would cause it not to be a Permissible Assignment Agreement, without the prior written consent of the non-assigning Shareholder; | ||
(v) | provides that the assigning Shareholder is authorized to Transfer its entire interest in the Company pursuant to Section 9.1(a) free and clear of any interest of the Permissible Assignee and without any liability on the part of the transferee thereunder to the Permissible Assignee; and | ||
(vi) | contains an express acknowledgment by the Permissible Assignee, for the benefit of the non-assigning Shareholder and the Company, to the effect of clauses (i)-(v) above. |
The assigning Shareholder shall ensure that any payment due to a Permissible Assignee pursuant to or in connection with a Permissible Assignment Agreement shall be made in full to such Permissible Assignee when due. | ||
9.2 | Admission of New Shareholders . No Person shall have the right to become a Shareholder unless and until all the following conditions are satisfied: |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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case except to the extent that nonpayment or noncompliance will not have a material adverse effect on the Company. | ||
10.2 | Further Assurances . Following the Closing, each Shareholder shall, and shall cause its Affiliates and the Company to take all reasonable actions necessary or appropriate to, effectuate the transactions contemplated by this Agreement, and to obtain (and cooperate with the other Shareholder in obtaining) any Governmental Action or third party consent required to be obtained or made by it in connection with the transactions contemplated by this Agreement; provided, that no Burdensome Condition shall be made to exist with respect to such Shareholder or any of its Affiliates in connection therewith. | |
10.3 | Dispute Resolution; Deadlock . | |
(a) | The Shareholders shall endeavor to settle, through their respective designees to the Board of Directors, any disputes which may arise between them, including without limitation, failure by the Board of Directors to reach agreement (or failure to take a vote) on any matter requiring Directors approval pursuant to Section 5.1(d) (Matters Requiring the Approval of the Board of Directors). The Shareholders shall attempt to resolve the issue or proposed action in question, to the extent practicable, in a manner consistent with the Companys most recently approved Business Plan, unless the issue in dispute is the adoption of a new Business Plan, in which case the provisions of Sections 10.3(c), (e) and (f) shall apply. | |
(b) | If (i) the Shareholders are unable to agree on any matter requiring the approval of the Shareholders pursuant to Section 4.1(a) (Matters Requiring the Approval of the Shareholders), (ii) the Board of Directors is unable to agree on any matter requiring the approval of the Board of Directors pursuant to Section 5.1(d) (Matters Requiring the Approval of the Board of Directors) (other than the approval of any Business Plan, with respect to which the failure to agree shall be governed by Sections 10.3(c), (e) and (f)) or (iii) the Shareholders or the Board of Directors are otherwise unable to resolve a dispute on any other item (other than the approval of any Business Plan, with respect to which the failure to agree shall be governed by Sections 10.3(c), (e) and (f)), then any Shareholder may bring the matter to the attention of the General Manager Memory Division, Semiconductor Company of Toshiba, and the Chief Operating Officer of SanDisk (the Designated Individuals ), who will attempt to find a resolution. If the matter has not been resolved within thirty (30) days of referral to the Designated Individuals, the matter will be referred to the Management Committee for a final decision, which decision will be final and binding on the Company and the Shareholders with respect to any matter specified in Sections 10.3(b)(i) and (ii) above. If an agreement is reached by the Management Committee, the mutually agreed resolution shall be implemented by the Company. Should no solution be agreed upon within thirty (30) days after submission of the matter to the Management Committee with respect to the matters specified in (iii) above, such matter shall be submitted to arbitration in accordance with Section 2.5 of the Appendix A. Should no solution be agreed upon within sixty (60) days after submission of the matter to the Management Committee with respect to the matters specified in Sections 10.3(b)(i) and (ii) above, then the action for which approval was |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Shareholder is referred to herein as the Defaulting Shareholder ), in addition to all other remedies available to the Company or the other Shareholder (the Nondefaulting Shareholder ), whether under any of the FA Operative Documents or other agreements or by law, the Nondefaulting Shareholder shall have the option to take one or more of the following actions: | ||
(a) | give written notice to the Defaulting Shareholder of its intention to acquire all of the Shares of the Defaulting Shareholder for a cash payment, by wire transfer of immediately available Japanese Yen, in an amount equal to the [ * ] as of the date of such transaction multiplied by the Defaulting Shareholders Percentage as of such date; and/or | |
(b) | elect to dissolve the Company pursuant to Section 11.3 (Dissolution Upon Event of Default), in which case the affairs of the Company shall be wound up and the Company shall be dissolved in accordance with Section 11 (Dissolution). | |
10.5 | Mechanics of Sale . | |
(a) | The closing of any purchase and sale of Shares pursuant to Section 10.3 (Dispute Resolution; Deadlock), 10.4 (Remedies Upon Event of Default; Termination on Breach), 11.4 (Dissolution by Unilateral Option) or 11.5 (Dissolution Upon Notice) shall take place not later than the thirtieth (30th) Business Day after notice of the purchase is given, as the case may be, except that such period shall be extended as necessary in order to comply with any Governmental Rule. The purchasing Shareholder shall pay for the Shares being acquired by wire transfer of immediately available funds in Japanese Yen to an account specified by the selling Shareholder. The selling Shareholder shall execute all documents necessary to effect the conveyance of its Shares, free and clear of all Liens, to the purchasing Shareholder. In addition, the Shareholders shall enter into an indemnity and release agreement, in a form reasonably satisfactory to each Shareholder, indemnifying and holding harmless the selling Shareholder and its Affiliates for liabilities or claims made after the date of the purchase and sale under any guarantees or other agreements supporting the obligations of the Company which may have been extended by the selling Shareholder or any of its Affiliates. The Shareholders shall also reach agreement on a reasonable transition plan of up to six months in connection with services provided to the Company by members of the SanDisk Team assigned to the Company by the Selling Shareholder. | |
(b) | If a Shareholder elects to acquire all of the Shares of the other Shareholder pursuant to Section 10.3 (Dispute Resolution; Deadlock), 10.4 (Remedies Upon Event of Default; Termination on Breach), 11.4 (Dissolution by Unilateral Option) or 11.5 (Dissolution Upon Notice), such Shareholder shall be obligated to take all actions required of it to consummate the applicable purchase and sale on the date determined pursuant to this Section 10.5 (Mechanics of Sale). If any Shareholder has the right to purchase the Shares of any other Shareholder, such Shareholder shall have the right to assign such right to purchase to any other Person. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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11. | Dissolution | |
11.1 | Events of Dissolution . The Company shall be dissolved and shall commence winding up its affairs upon the first to occur of the following. The Shareholders shall cooperate in taking any necessary corporate steps under the Companies Act to attain the purpose of this Section 11: | |
(a) | the expiration of the term of the Company pursuant to Section 2.4 (Term; Extension); | |
(b) | the agreement of the Shareholders to dissolve the Company pursuant to Section 11.2 (Dissolution by Agreement); | |
(c) | the election of the Nondefaulting Shareholder pursuant to Section 11.3 (Dissolution Upon Event of Default); | |
(d) | the first anniversary of the receipt by either Shareholder of a Deadlock Dissolution Notice submitted with respect to a failure of the Shareholders to approve and agree upon a Business Plan pursuant to Section 10.3 (Dispute Resolution; Deadlock) if either (i) the Responding Shareholder declines to exercise its right to purchase the Shares of the Initiating Shareholder or fails to respond to such Deadlock Dissolution Notice, or (ii) both Shareholders submit Deadlock Dissolution Notices with respect to such failure to agree; | |
(e) | the election by Toshiba to dissolve the Company pursuant to Section 11.4 (Dissolution by Unilateral Option); | |
(f) | the bankruptcy, death, dissolution, expulsion or incapacity of a Shareholder or the occurrence of any other event which terminates the membership of a Shareholder in the Company ( Bankruptcy Event ); or | |
(g) | the election of the Notifying Party to dissolve the Company pursuant to Section 11.5 (Dissolution Upon Notice) unless the Notified Party elects to purchase the Shares of the Notifying Party pursuant to Section 11.5 (Dissolution Upon Notice). | |
11.2 | Dissolution by Agreement . The Company may be dissolved at any time by the unanimous written consent of the Shareholders. | |
11.3 | Dissolution Upon Event of Default . During the occurrence and continuation of an Event of Default (other than a Bankruptcy Event) with respect to a Shareholder, the Nondefaulting Shareholder may elect, by written notice to the Defaulting Shareholder, to dissolve the Company, in which event the Company shall be dissolved and the Shareholders shall take all actions necessary to wind up the affairs of the Company in accordance with Section 11.7 (Winding Up). This Section 11.3 shall not be construed to limit the rights of the Nondefaulting Shareholder under Section 10.4 (Remedies Upon Event of Default) or to seek damages from the Defaulting Shareholder or any other Person for the breach of its obligations under any of the FA Operative Documents. |
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11.4 | Dissolution by Unilateral Option . At any time between April 1, 2009 and March 31, 2010, SanDisk may, by giving written notice to Toshiba, elect to withdraw from the Company, in which case Toshiba must, directly or through any of its Affiliates, either (i) purchase from SanDisk all of SanDisks Shares within one (1) year following SanDisks notice to withdraw for a cash payment, by wire transfer of immediately available Japanese Yen, in an amount equal to the [*] as of the FA Termination Date multiplied by SanDisks Percentage as of the Termination Date (the estimated [*] as of the Termination Date to be agreed by the Shareholders in good faith and any necessary true up payments promptly after the actual [*] as of the Termination Date is determined), or (ii) cooperate with SanDisk to dissolve the Company within one (1) year of the notice of withdrawal and to wind-up its affairs in accordance with Section 11.7 (Winding Up) (the date as of which any Shareholder, itself or together with its Affiliates, holds all Shares of the Company or the date the Company is dissolved in accordance with applicable Law, the Termination Date , but in no event shall the Termination Date occur later than one (1) year following SanDisks notice to withdraw). | |
11.5 | Dissolution upon Notice . At any time between April 1, 2013 and March 31, 2014, any Shareholder (the Notifying Party ) may elect, by giving notice to all other Shareholders (the Notified Party ), to dissolve the Company, in which event the Company will be dissolved and, within the one (1) year period following the giving of such notice, the Shareholders shall mutually agree upon a plan for winding up the affairs of the Company in accordance with Section 11.7 (Winding Up), unless the Notified Party, directly or through any of its Affiliates, elects in writing within three (3) months of receiving such notice, to purchase from the Notifying Party all of its Shares for a cash payment, by wire transfer of immediately available Japanese Yen, in an amount equal to the [*] as of the date of such transaction multiplied by the Notifying Partys Percentage as of such date. | |
11.6 | Financing Defaults . | |
(a) | If pursuant to Section 6.5(c)(i) of the Master Agreement either Party, as the Investing Party, exercises its election to terminate this Agreement, the Shareholders shall cooperate in good faith to effect the purchase by Toshiba (or its designated Affiliate) and sale by SanDisk of all of SanDisks Shares, at a price equal to SanDisks percentage share of the issued and outstanding Shares in the Company multiplied by the [*] as of the date such transaction is closed (with estimated [*] as agreed by the Shareholders in good faith paid on the closing of such transaction and any true-up payment made by the appropriate Party promptly after determination of the actual [ * ] as of the closing of such purchase and sale transaction). | |
(b) | [ * ] | |
(c) | If pursuant to Section 6.12(d)(ii)of the Master Agreement either Party, as the Non-Defaulting Party, exercises its election to terminate this Agreement, the Non-Defaulting Party shall have the same rights as provided in Section 11.6(a) and the Shareholders shall cooperate in good faith to effect the purchase by the Non-Defaulting Party (or its |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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designated Affiliate) and sale by the Defaulting Party of all of the Defaulting Partys Shares. | ||
11.7 | Winding Up . | |
(a) | Upon the dissolution of the Company, the Shareholders shall proceed as promptly as practicable to (i) wind-up the affairs of the Company and satisfy the Companys liabilities, (ii) dispose of the Companys assets as quickly as possible consistent with obtaining the full fair market value of the Company, preferably, to the extent it is commercially practicable to do so, by selling the Company as a going concern (provided, however, no Shareholder shall be under any obligation to extend the terms of any FA Operative Document or to offer to enter into any other agreement with a prospective purchaser of the Company for the purchase or sale of goods or services or the use of facilities or any other business arrangement), and (iii) distribute any net proceeds to the Shareholders in accordance with Section 11.8 hereof and applicable Law. In connection with a sale of the Companys assets under clause (ii), each Shareholder or any of their respective Affiliates shall have a right of first offer to acquire the Companys tangible personal property in the liquidation process and may also acquire such property through participation at auction except in the event of a dissolution pursuant to Section 11.3 (Dissolution Upon Event of Default), in which event the Defaulting Shareholder and its Affiliates shall not have such right of first offer to acquire the Companys tangible personal property. Each of the Shareholders shall be furnished with a statement setting forth the assets and liabilities of the Company as of the date of the complete liquidation of the Company. The Accountants shall review the final accounting and shall render their opinion with respect thereto. | |
(b) | During the period of winding-up, the Company shall continue to operate and all the provisions of this Agreement shall remain in effect, except as otherwise expressly provided herein. The Company shall notify all known creditors and claimants of the dissolution of the Company in accordance with applicable law. | |
11.8 | Liquidation Proceeds . | |
(a) | In the case of the dissolution and liquidation of the Company, the Company may make a distribution in kind. Any cash and all distributions in kind that are to be distributed shall be distributed to the Shareholders, on a pro rata basis based upon the respective Percentages of the Shareholders as of the date of such distribution. | |
(b) | Unless otherwise agreed by the Shareholders, and to the extent permitted under any agreements with third parties, all assets to be distributed upon the dissolution and liquidation of the Company shall be distributed as follows: |
(i) | first, to creditors, including Shareholders who are creditors, to the extent permitted by law, in satisfaction of liabilities of the Company, other than for distributions to Shareholders pursuant to Section 6.2 (Distributions); and |
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(ii) | second, to the Shareholders on a pro rata basis based upon the respective Percentages of the Shareholders as of the date of such distribution. |
(c) | Any distribution made pursuant to this Section 11.8 shall be made as soon as practicable under and in accordance with applicable Japanese law. | |
12. | Indemnification and Insurance | |
12.1 | Indemnification . | |
(a) | Subject to Section 12.1(c), the Company shall indemnify each Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (including an action by or in the right of a Shareholder or the Company), by reason of the fact that such Person is or was a Shareholder or is or was or has agreed to become a Director or is or was serving or has agreed to serve at the request of the Company as a director, officer, employee or agent of the Company or of another partnership, corporation, joint venture, trust or other enterprise, arising from any action alleged to have been taken in any such capacity or by reason of any liability or obligation of the Company, against any and all losses, damages, liabilities, costs, charges, expenses (including interest, penalties and reasonable attorneys fees and expenses), judgments, fines and amounts paid in settlement (collectively, Losses ) actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom. Without limiting the generality of the foregoing, any of such Losses shall be deemed to arise out of a Company liability or obligation if it arises out of or is based upon the conduct of the business of the Company (or any of its Subsidiaries) or the ownership of the property of the Company (or any of its Subsidiaries). | |
(b) | The indemnification provided under this Section 12.1 shall inure to the benefit of the successors, heirs and personal representatives of any Person entitled to the benefit of such indemnification. Such indemnification shall be a contract right and shall include the right to be paid advances of reasonable expenses incurred by any such Person in connection with such action, suit or proceeding. | |
(c) | The indemnification provided under this Section 12.1 shall not inure to the benefit of any Person in respect of Losses to the extent that such Losses (i) arise out of or are based upon the gross negligence or willful misconduct of such Person or (ii) constitute a tax, levy or similar governmental charge not imposed upon the Company (or any of its Subsidiaries) or on their respective properties. The indemnification provided under this Section 12.1 shall also not be available to any Person in respect of any Losses if a judgment or other final adjudication adverse to such Person establishes (x) that such Persons acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated or (y) that such Person gained in fact a financial profit or other advantage to which such Person was not legally |
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entitled. It is understood and agreed that, for the purposes of this Section 12.1, Losses shall be deemed not to arise out of or be based upon the gross negligence or willful misconduct of a Person solely because it arises out of or is based upon the gross negligence, willful misconduct, bad faith or active and deliberate dishonesty of a director, officer or employee of such Person if at the time of such gross negligence, willful misconduct, bad faith or active and deliberate dishonesty, such director, officer or employee was also a member of the SanDisk Team or a Director acting in his capacity as such. | ||
(d) | The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the indemnified Person did not meet the standard set forth in Section 12.1(c) (Indemnification). | |
12.2 | Insurance . The Company may, to the fullest extent permitted by law, purchase and maintain insurance against any liability that may be asserted against any Person entitled to indemnity pursuant to Section 12.1. | |
12.3 | Indemnification by the Shareholders . | |
(a) | Each Shareholder agrees to, and does hereby, indemnify and hold harmless the Company and the other Shareholder from and against any and all Losses arising out of, or based upon, the gross negligence or willful misconduct of such Shareholder under this Agreement or such Shareholder exceeding its authority under this Agreement. | |
(b) | The provisions of this Section 12.3 shall survive each of the termination of this Agreement, the dissolution of the Company and the withdrawal of any Shareholder. | |
12.4 | Assertion of Claims . | |
(a) | In the event that a Person (the Indemnified Party ) desires to assert its right to indemnification from a Person (an Indemnifying Party ) required to indemnify such Indemnified Party under this Section 12, the Indemnified Party will give the Indemnifying Party prompt notice of the claim giving rise thereto (a Claim ), and the Indemnifying Party shall undertake the defense thereof (unless the Claim is asserted against or related to or results from any action or failure to take action by such Indemnifying Party). The failure to promptly notify the Indemnifying Party hereunder shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent that the Indemnifying Party is actually prejudiced by the failure to so notify promptly. | |
(b) | The Indemnified Party shall not settle or compromise any Claim without the written consent of the Indemnifying Party unless the Indemnified Party agrees in writing to forego any and all claims for indemnification from the Indemnifying Party with respect to such Claim. However, if the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim, the Indemnified Party shall have the right to undertake the defense, compromise or settlement of such Claim on behalf of and for the account and risk of the Indemnifying Party, subject to the right of the Indemnifying Party |
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to assume the defense of such Claim at any time prior to settlement, compromise or final determination thereof. | ||
13. | If the Indemnifying Party has undertaken the defense of a Claim and (i) if there is a reasonable expectation that (x) a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments or (y) the Indemnified Party or Shareholders may have legal defenses available to it or them that are different from or additional to the defenses available to the Indemnifying Party, or (ii) if the Indemnifying Party shall not have employed counsel reasonably satisfactory to the Indemnified Party, the Indemnified Party shall nevertheless have the right, at the Indemnifying Partys cost and expense, to defend such Claim. Miscellaneous | |
13.1 | Governing Law . Notwithstanding anything to the contrary in Appendix A , this Agreement shall in all respects be governed by and construed in accordance with the laws of Japan, without regard to the conflict of laws principles. | |
13.2 | Effectiveness . This Agreement shall be effective as of the date first written above and shall remain in effect until the Termination Date. Sections 7, 11.7, 11.8 and 13 shall survive the Termination Date. |
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TOSHIBA CORPORATION | ||||||||
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By: | |||||||
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Name: | Masashi Muromachi | ||||||
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Title: | President and CEO | ||||||
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Semiconductor Company | |||||||
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Corporate Executive Vice President | |||||||
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SANDISK (IRELAND) LIMITED | ||||||||
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By: | |||||||
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Name: | Sanjay Mehrotra | ||||||
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Title: | Director |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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4
(i) | [ * ] | ||
(ii) | [*] | ||
(iii) | [*] |
(i) | [*] | ||
(ii) | [*] | ||
(iii) | [*] |
(i) | [*] |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
5
(ii) | [*] | ||
(iii) | [ * ] |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
6
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
7
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Toshiba Corporation | SanDisk Corporation | |||||||||
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By:
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By: | |||||||||
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||||||||||
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||||||||||
Name:
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Masashi Muromachi | Name: | Eli Harari | |||||||
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||||||||||
Title:
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President and CEO | Title: | Chief Executive Officer | |||||||
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Semiconductor Company | |||||||||
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Corporate Executive Vice President |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1.1 | Products shall mean the NAND Flash Memory devices developed hereunder, including the NAND Flash Memory devices specified in Exhibit A attached hereto, but excluding Flash Memory Controllers. | |
1.2 | Flash Memory Controller shall mean any firmware, hardware and/or software that is necessary to operate a NAND Flash Memory device. | |
1.3 | Developed Products shall mean Products solely developed by either Party during the term of this Agreement, including solely developed derivatives of Jointly Developed Products; provided however, that Developed Products shall not include cut-downs of Jointly Developed Products. | |
1.4 | Jointly Developed Products shall mean Products jointly developed by Toshiba and SanDisk during the term of this Agreement. | |
1.5 | Toshiba Developed Controller shall mean a Flash Memory Controller solely developed by Toshiba during the term of this Agreement, including solely developed derivatives of Jointly Developed Controllers. | |
1.6 | SanDisk Developed Controller shall mean a Flash Memory Controller solely developed by SanDisk during the term of this Agreement, including solely developed derivatives of Jointly Developed Controllers. | |
1.7 | Jointly Developed Controller shall mean a Flash Memory Controller developed by Toshiba and SanDisk during the term of this Agreement. |
1
1.8 | Development Project shall mean all development activities undertaken pursuant to Article 2. | |
1.9 | Background Technology shall mean the Technology which has been or will be developed by or for either Party independently of the Development Projects and owned or controlled by such Party prior to or during the term of this Agreement, and which shall be deemed reasonably necessary for the other Party to perform the Development Projects. Background Technology may be either SanDisk Background Technology or Toshiba Background Technology, as the context requires. | |
1.10 | Technology shall mean all developments, ideas, inventions, Test Technology and other technical information (whether or not patentable) relating to Products as well as intellectual property rights relating thereto, including trade secrets, copyrights and maskwork rights, but specifically excluding Patents. | |
1.11 | Developed Technology shall mean Technology solely developed by either Party in the course of the Development Projects. | |
1.12 | Jointly Developed Technology shall mean Technology jointly developed by Toshiba and SanDisk in the course of the Development Projects. | |
1.13 | Test Technology shall mean all developments, ideas, inventions, test programs, test methods, configured and developed hardware and other technical information (whether or not patentable) for all stages of product manufacture, as well as intellectual property rights relating thereto, but specifically excluding Patents, concerning testing of Products and Flash Memory Controllers. | |
1.14 | Controller Technology shall mean all developments, ideas, inventions and technical information (whether or not patentable) relating to Flash Memory Controllers and intellectual property rights relating thereto, including, but not limited to, trade secrets, copyrights and maskwork rights, but specifically excluding Patents. | |
1.15 | Jointly Developed Controller Technology shall mean Controller Technology developed by Toshiba and SanDisk during the term of this Agreement. | |
1.16 | Developed Controller Technology shall mean Controller Technology solely developed by either Party during the term of this Agreement. | |
1.17 | SanDisk Controllers shall mean SanDisk Developed Controllers, Jointly Developed Controllers, SanDisk Developed Controller Technology and Jointly Developed Controller Technology. | |
1.18 | SanDisk Products and Technology shall mean SanDisk Developed Products, SanDisk Background Technology, SanDisk Developed Technology and SanDisk Controllers. |
2
1.19 | Toshiba Products and Technology shall mean Toshiba Developed Products, Toshiba Background Technology, Toshiba Developed Technology, Toshiba Developed Controller Technology and Toshiba Developed Controllers. | |
1.20 | Joint Products and Technology shall mean Jointly Developed Products and Jointly Developed Technology. | |
1.21 | Patents shall mean all classes of types of patents, utility models (excluding design patents) and any applications therefor in all countries of the world, which are, now or hereafter, owned or controlled by either Party hereto. | |
1.22 | Jointly Developed Patents shall mean Patents which arise out of the inventions jointly made by the employees of Toshiba or SanDisk in the course of the Development Projects. | |
1.23 | Effective Date shall be July 7, 2006. | |
1.24 | Agreement means this Second Amended and Restated Product Development Agreement together with any Exhibits, Schedules, Appendices and Attachments hereto and Appendix A . | |
1.25 | Master Agreement shall mean that certain Flash Alliance Master Agreement, dated as of the date hereof, by and among Toshiba, SanDisk and SanDisk (Ireland) Limited. | |
1.26 | Appendix A shall mean the Definitions, Rules of Construction and Documentary Conventions, attached as Appendix A to the Master Agreement. | |
1.27 | Direct R&D Effective Date shall mean May 9, 2000. |
2.1 | Except as expressed in the Common R&D Agreement, each Party agrees to undertake at Toshibas or SanDisks facilities (such facility or facilities to be determined by the Coordinating Committee prior to commencement of the applicable Development Project) the Development Projects specified in Exhibit A in accordance with a development schedule and activity allocations to be determined by the Coordinating Committee. During the term of this Agreement, the parties will use reasonable efforts to continually identify and pursue joint development of new products and Exhibit A may be amended from time to time, in accordance with the approval of the Coordinating Committee, to reflect such new Development Projects. | |
2.2 | Each Party shall, from time to time during the term of this Agreement and to the extent reasonably necessary to perform the Development Projects, provide the other Party with technical information relating to its Background Technology. |
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2.3 | Each Party shall, from time to time during the term of this Agreement, provide the other Party with technical information relating to Jointly Developed Technology and Jointly Developed Controller Technology. | |
2.4 | A Party that is in possession of Jointly Developed Technology, Jointly Developed Controller Technology or other technical information, including the items specified in Exhibit C , shall, upon request of the other party made at any time during the term of this Agreement or for a period of one year thereafter, promptly deliver to the other Party copies of such information as requested. When requested by either Party, such exchange of information, shall include test flow conditions and related know-how. | |
2.5 | During the term of this Agreement, upon request by either Party and subject to the availability of the other Partys engineers, the other Party shall (i) delegate its qualified engineers to advise and consult with such requesting Party at the requesting Partys facilities or (ii) receive qualified engineers of the requesting Party to train and advise at its own facilities. The details of such delegation or reception of the engineers shall be decided by the Coordinating Committee as described in Article 3. | |
2.6 | This Agreement shall not encompass or include products or technology developed jointly or solely by the parties, utilizing or based on Toshiba NOR flash technology or other Toshiba non-NAND Flash technologies, or SanDisk NOR flash technology or other SanDisk non-NAND flash technologies. | |
2.7 | Either Party may propose to disclose (the Proposing Party ) Jointly Developed Controller Technology to any Qualified Design House under a written agreement of confidentiality and non-use, for a period of restriction generally to be discussed and agreed upon by the Coordinating Committee, but if not so discussed or agreed upon, then for a period of at least seven years, for the purpose of engaging such Qualified Design House to design a solely developed Flash Memory Controller for the account of the Proposing Party to be manufactured and sold by the Proposing Party. Prior to making such disclosure to a Qualified Design House, the Proposing Party shall give the other Party to this Agreement (the Reviewing Party ) the opportunity to jointly develop such product with the Proposing Party. The opportunity should be presented in detail at a meeting of the Coordinating Committee and the Reviewing Party will be given a reasonable amount of time to consider the proposal. If the Reviewing Party accepts the opportunity to enter into such joint development, the Proposing Party shall not make the disclosure to the Qualified Design House. For the purpose of this section, Qualified Design House shall mean a company which offers services to design devices similar to Flash Memory Controllers but which does not make or sell flash memory devices or flash cards. | |
2.8 | Each of Toshiba and SanDisk agree to provide to the other Party certain information relating to product development, including the information set forth in Exhibit D attached hereto. |
4
3.1 | Immediately after the Effective Date, the Parties shall jointly establish the Coordinating Committee which shall be comprised of six (6) representatives; three (3) of which shall be appointed by Toshiba and three (3) of which shall be appointed by SanDisk, which appointments shall have been approved by each of the Parties; provided that such approval shall not be unreasonably withheld. | |
3.2 | The Coordinating Committee shall be responsible for: |
(a) | Determining new Products and Flash Memory Controllers to be jointly developed, including product design and manufacturing specifications. All Product development projects, including Flash Memory Controller development projects, and projects considered by either Party for sole development, shall be disclosed to the Coordinating Committee prior to the start of development; | ||
(b) | Reviewing the progress of the Development Projects against the development schedule and evaluating the Development Projects; | ||
(c) | Discussing necessary changes to the scope or the schedules of the Development Projects and actions to be taken; | ||
(d) | Resolving any differences in opinions between the parties which may arise during the course of the Development Projects; | ||
(e) | Allocation of wafer processing costs as specified in Article 5; | ||
(f) | Discussing inventorship of patents conceived by the parties as a result of any joint development activity hereunder; and | ||
(g) | Any other matters as agreed upon by both parties. |
All decisions by the Coordinating Committee, including any decision to jointly develop Products or Flash Memory Controllers, shall be made unanimously and shall be set forth in writing. If any matter is not determined by unanimous consent of the Coordinating Committee, such matter shall be referred to Management Committee (as defined in the Master Agreement) for its final decision. In connection with discussing inventorship of patents pursuant to Section 3.2(f), the parties agree to notify the Coordinating Committee as soon as possible, but not later than three (3) months after such Partys knowledge of the filing date of the particular patent. | ||
3.3 | The Coordinating Committee shall have periodical meetings which shall be led by the Technical Coordinator of both Parties on a quarterly basis, or at such other intervals, alternatively in the United States and in Japan or such other places as mutually agreed upon by the Technical Coordinators of each Party. Either Party may invite other of its employees to attend such meetings. |
5
6.1 | Toshiba Products and Technology shall be and remain the exclusive property of Toshiba, subject to the license granted in accordance with Section 7.1. From time to time, upon request of SanDisk, Toshiba shall offer SanDisk, based upon reasonable terms, a non-exclusive, worldwide, non-transferable license, without right to sublicense, to develop, have developed, make, have made, use, sell, modify and otherwise dispose of all or a portion of the Toshiba Products and Technology. | |
6.2 | Toshiba Patents shall be and remain the exclusive property of Toshiba, subject to the licenses granted in accordance with the Patent Cross License Agreement between SanDisk Corporation and Toshiba Corporation, as amended from time to time, the Patent Agreement ). | |
6.3 | SanDisk Products and Technology shall be and remain the exclusive property of SanDisk, subject to the licenses granted in accordance with Sections 7.2 and 7.3 |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
6
hereof. From time to time, upon request of Toshiba, SanDisk shall offer Toshiba, based upon reasonable terms, a non-exclusive, worldwide, non-transferable license, without right to sublicense, to develop, have developed, make, have made, use, sell, modify and otherwise dispose of all or a portion of the SanDisk Products and Technology. | ||
6.4 | SanDisk Patents shall be and remain the exclusive property of SanDisk, subject to the licenses granted in accordance with the Patent Agreement. | |
6.5 | Any right, title and interest in and to Joint Products and Technology shall be jointly owned by Toshiba and SanDisk. With the exception that neither Party may sublicense or transfer Joint Products and Technology without the prior written consent of the other Party, each of Toshiba and SanDisk has the right to use, fully exploit, disclose or otherwise dispose of such Joint Products and Technology for any purpose without consent of nor accounting to the other Party. | |
6.6 | Any right, title and interest in and to Jointly Developed Patents shall be jointly owned by Toshiba and SanDisk. Each Party shall be free to use such Jointly Developed Patents for any purpose and shall have the right to grant non-exclusive licenses to any third Party without the consent of nor accounting to the other Party. Both Parties shall promptly agree on which of them shall file and prosecute the first patent application and which countries corresponding applications shall be filed and by whom. All expenses incurred in obtaining and maintaining such patents shall be shared equally by the Parties; provided that if one Party elects not to seek or maintain such patents in any particular country or not to share equally in the expense thereof, the other Party shall have the right to seek or maintain such patents in said country at its own expense and shall have full control over the prosecution and maintenance thereof even though title to any patent issuing thereon shall be joint. The Party electing not to seek or maintain such patents shall give the other Party any necessary assistance required for the preparation and prosecution of such patents filed or maintained by the other Party. Jointly Developed Patents shall not be considered SanDisk Licensed Patents or Toshiba Licensed Patents as defined in the Patent Agreement. |
7.1 | Subject to the terms and conditions of this Agreement, Toshiba hereby grants to SanDisk a non-exclusive, non-transferable, worldwide and royalty-free license, without the right to sublicense, to use Toshiba Background Technology provided to SanDisk hereunder to develop, have developed, make, have made, use, sell, modify and otherwise dispose of Products, SanDisk Controllers and any other controller products designed by or for SanDisk. | |
7.2 | Subject to the terms and conditions of this Agreement, SanDisk hereby grants to Toshiba a non-exclusive, non-transferable, worldwide and royalty-free license, without the right to sublicense, to use SanDisk Background Technology provided to |
7
Toshiba hereunder to develop, have developed, make, have made, use, sell, modify and otherwise dispose of Products, Toshiba Developed Controllers and other controller products not designed or used for file storage. | ||
7.3 | Subject to the terms and conditions of this Agreement, SanDisk hereby grants to Toshiba a non-exclusive, non-transferable, worldwide and royalty-free license, without the right to sublicense, to make, have made, use, sell, modify and otherwise dispose of any Jointly Developed Controllers. | |
7.4 | It is understood that SanDisk has the right to use, fully exploit, disclose, sublicense, transfer or otherwise dispose of SanDisk Controllers and any other controller product designed by or for SanDisk without consent from or accounting to Toshiba, even if such SanDisk Controllers or other controller products incorporate any Toshiba Background Technology. |
8.1 | Toshiba and SanDisk each provides to the other Party its Background and Developed Technology on an as-is basis only, and neither makes any warranty or representation with respect to the Background Technology or Developed Technology for any purpose. | |
8.2 | Nothing contained in this Agreement shall be construed as: |
(a) | a warranty or representation that the manufacture, use, sale or other disposal of semiconductor products by the other Party using any technical information received under this Agreement will be free from infringement of patents or any other intellectual property rights of a third party; | ||
(b) | conferring to the other Party any right to use in advertising, publicity or otherwise any trademark, trade name or names, any contraction, abbreviation or simulations thereof of either Party; | ||
(c) | conferring to the other Party, by implication, estoppel or otherwise, any license or other right except for the licenses and rights expressly granted hereunder; or | ||
(d) | an obligation to furnish any technical information or know-how except as otherwise specifically provided herein. |
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10.1 | As used in this Agreement, the term Confidential Information shall mean any information disclosed by one Party (the disclosing party ) to other Party (the receiving party ) pursuant to this Agreement which is in written, graphic, machine readable or other tangible form and is marked Confidential, Proprietary or in some other manner to indicate its confidential nature. Confidential Information may also include oral information disclosed by one Party to the other Party pursuant to this Agreement; provided that such information is designated in a manner to indicate its confidential nature at the time of disclosure and reduced to a written summary by the disclosing party within thirty (30) days after its oral disclosure. | |
10.2 | During the [ * ] year period following receipt of such information, the receiving party shall keep, and cause its Subsidiaries, its sublicensees and subcontractors who have access to Confidential Information as permitted in this Agreement to keep, any Confidential Information, including but not limited to Background Technology and Developed Technology provided by the disclosing party hereunder, in strict confidence, and shall not disclose such Confidential Information to any third party without the prior written consent of the disclosing party. The receiving party shall maintain the Confidential Information with at least the same degree of care that the receiving party uses to protect its own strictly confidential information, but no less than a reasonable degree of care under the circumstances. Further, the receiving party shall not use the Confidential Information for any purpose other than for the Development Projects, except as otherwise provided herein. | |
10.3 | Neither Party shall disclose the terms and conditions of this Agreement to any third party without the prior written consent of the other Party. | |
10.4 | The confidentiality obligation set forth in Articles 10.2 and 10.3 above shall not apply to any information which: |
(a) | is already known by the receiving party at the time of disclosure; | ||
(b) | is or becomes publicly known through no fault of the receiving party; | ||
(c) | is rightfully received by the receiving party from a third party without any restriction on disclosure; | ||
(d) | is independently developed by the receiving party; | ||
(e) | is disclosed with the prior written consent of the disclosing party hereto; or |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(f) | is disclosed pursuant to applicable laws, regulations or court order, provided that the receiving party shall give the disclosing party prompt notice of such request so that the disclosing party has an opportunity to defend, limit or protect such disclosure. |
10.5 | Each Party understands that disclosure or dissemination of the other Partys Confidential Information, specifically Toshiba Background Technology provided to SanDisk in connection with the Development Projects, not expressly authorized hereunder would cause irreparable injury to such other Party, for which monetary damages would not be an adequate remedy and said other Party shall be entitled to equitable relief in addition to any remedies the other Party may have hereunder or at law. In the event SanDisk is to enter into any joint development work with any third party, SanDisk warrants that Toshiba Background Technology provided to SanDisk in connection with the Development Projects shall neither be used for such joint development work nor be disclosed to any third party unless expressly otherwise provided hereunder. | |
10.6 | The Technical Coordinator of each Party shall ensure that the other Partys Technical Coordinator is informed of and receives in sufficient detail and completeness the Background and Developed Technology that is exchanged under Article 2. Each Technical Coordinator shall also monitor within their company the distribution of Confidential Information received from the other Party only to those who have a need to know and, further, to assist in preventing the unauthorized disclosure of the Confidential Information to personnel within the company who do not have a need to know, or to third parties. The Technical Coordinator for each Party shall maintain pertinent records and the like, and acknowledge the receipt from the other Party of all Confidential Information. |
11.1 | This Agreement shall become effective on the Direct R&D Effective Date and continue in full force and effect until later of the termination of the FVC-Japan Master Agreement, the FP Master Agreement or the Master Agreement, unless earlier terminated as hereinafter provided. The term of this Agreement may be extended by mutual agreement of both parties. | |
11.2 | If either Party fails to perform or breaches any of its material obligations under this Agreement, then, upon sixty (60) days advanced written notice specifying such failure or breach, the non-defaulting Party shall have the right to terminate this Agreement forthwith, unless the failure or breach specified in the notice has been cured during the sixty (60) day period. Termination of this Agreement pursuant to this Section 11.2 shall not relieve the breaching Party from any liability arising from any breach of this Agreement and such termination shall be without prejudice to any other rights and remedies of the non-breaching Party provided at law or in equity, in addition to the rights and remedies set forth in this Agreement. |
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11.3 | Either Party shall have the right to terminate this Agreement by giving written notice to the other Party upon the occurrence of any of the following events: |
(a) | the filing by the other Party of a voluntary petition in bankruptcy or insolvency; | ||
(b) | any adjudication that such other Party is bankrupt or insolvent; | ||
(c) | the filing by such other Party of any legal action or document seeking reorganization, readjustment or arrangement of its business under any law relating to bankruptcy or insolvency; | ||
(d) | the appointment of a receiver for all or substantially all of the property of such other Party; or | ||
(e) | the making by such other Party of any assignment of whole or substantial assets for the benefit of creditors. |
This Agreement shall terminate on the thirtieth (30th) day after such notice of termination is given. | ||
11.4 | In the event of termination or expiration of this Agreement, the rights and licenses granted to each Party specified in Article 7 shall survive such termination or expiration, except that if this Agreement is terminated by either Party for any of the events specified in Sections 11.2 and 11.3, then the licenses granted to the defaulting Party or the non-terminating Party, as the case may be, shall thereupon terminate. The provisions of Articles 6, 8, 9, 10, 11 and 12 shall survive any termination or expiration of this Agreement. |
12.1 | Neither Party is required to disclose any information of which disclosure is prohibited by laws of the country of such Party. | |
12.2 | In the event that the Parties will, after the Effective Date, make an announcement regarding this transaction and their business relationship, such announcement shall be in a mutually agreeable form and at a mutually agreeable time; provided that any information to be disclosed and/or announced by either Party shall be identified through consultation with the other Party and be agreed upon between the Parties before the disclosure and announcement. | |
12.3 | Neither Party shall export or re-export, directly or indirectly, any technical information disclosed hereunder or direct product thereof to any destination prohibited or restricted by the export control regulations of Japan or the United States, including the U.S. Export Administration Regulations, without the prior authorization from the appropriate governmental authorities. Neither Party will use technical information supplied by the other Party hereunder for any purpose to develop or |
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manufacture nuclear, chemical, biological weapons or missiles (hereafter weapons of mass destruction). Each Party agrees that it will not knowingly sell any products manufactured using the other Partys technical information to any third party if it knows that the end-user of the products will use them for the development and/or manufacture of the weapons of mass destruction. | ||
12.4 | The rules of construction and documentary conventions set forth in Appendix A to this Agreement shall apply to, and are hereby incorporated in, this Agreement. |
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|
TOSHIBA CORPORATION | SANDISK CORPORATION | ||||||||
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By:
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By: | |||||||||
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Name:
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Masashi Muromachi | Name: | Eli Harari | |||||||
Title:
|
President and CEO | Title: | Chief Executive Officer | |||||||
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Semiconductor Company | |||||||||
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Corporate Executive Vice President |
1.
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256 M | NAND Flash Memory | ||
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2.
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512 M | NAND Flash Memory | ||
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3.
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1 G | NAND Flash Memory | ||
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4.
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2 G | NAND Flash Memory | ||
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5.
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4 G | NAND Flash Memory | ||
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6.
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[*] | |||
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7.
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[*] | |||
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8.
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[*] | |||
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9.
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[*] | |||
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10.
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[*] | |||
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11.
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[*] | |||
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||||
12.
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[*] |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1. | Definitions and Interpretation. | |
1.1 | Flash Alliance Master Agreement . Appendix A to the Flash Alliance Master Agreement is hereby incorporated into this Agreement. Capitalized terms used but not defined in this Agreement shall have the meanings given to them in Appendix A . | |
1.2 | Definitions . The following terms used in this Agreement shall have the following respective meanings: | |
(a) | Environmental Laws means all Applicable Laws in Japan, including, but not limited to, the Soil Contamination Control Law ( Dojyouosen Taisaku Ho, Law No. 53 of 2002), now or hereafter in effect relating to the protection of human health, safety, and the environment from emissions, discharges, releases or threatened releases of pollutants, contaminants (chemical or industrial), toxic or Hazardous Substances or wastes into the |
1
environment (including, ambient air, soil, surface water, ground water, wetlands, land or subsurface strata), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling or investigation or remediation of pollutants, contaminants, chemicals or industrial, toxic or Hazardous Substances or wastes. | ||
(b) | Hazardous Substances means petroleum, petroleum hydrocarbons or petroleum products, petroleum by-products, radioactive materials, asbestos or asbestos-containing materials, pesticides, radon, urea formaldehyde, lead or lead- containing materials, polychlorinated biphenyls; and any other chemicals, materials, substances or wastes in any amount or concentration which are now or hereafter become defined as or included in the definition of hazardous substances, hazardous materials, hazardous wastes, extremely hazardous wastes, restricted hazardous wastes, toxic substances, toxic pollutants, pollutants, regulated substances, solid wastes, or contaminants or words of similar import, under any Environmental Law. | |
2. | Environmental Investigations. | |
2.1 | Environmental Consultants . The Parties acknowledge that each of SanDisk and Toshiba has engaged an environmental consulting company to conduct an environmental investigation on its behalf as to the surface and subsurface conditions existing on or immediately adjacent to the proposed site of the Y4 Facility and other new land to be acquired or leased by Toshiba for the purpose of the Y4 Facilitys operation including the parking lot (such new land to be acquired or leased, the Other Y4 Facility ) (each a Consultant and the Consultant engaged by SanDisk, the SanDisk Consultant and the Consultant engaged by Toshiba, the Toshiba Consultant ). SanDisk shall be solely responsible for the fees and costs charged by the SanDisk Consultant and shall indemnify and hold harmless Toshiba and the Company from any claims for compensation or damages made by the SanDisk Consultant. Toshiba shall be solely responsible for the fees and costs charged by the Toshiba Consultant and shall indemnify and hold harmless SanDisk and the Company from any claims for compensation or damages made by the Toshiba Consultant; provided, however , that fees and costs incurred by the Toshiba Consultant after the Closing and other than in connection with finalizing the Y4 Baseline Environmental Report (as defined below) shall be chargeable to and payable by the Company, which fees and costs shall be chargeable to and payable by the Parties through wafer price increases. | |
2.2 | Scope of Review . Each Consultant will perform the activities customarily associated with Phase I ( tochirireki chosa ) and Phase II ( osen jokyo kakunin chosa ) studies. The Consultant(s) will perform Phase I and Phase II studies on the site of the Y4 Facility. The Consultant(s) will perform Phase I studies on the sites of the Other Y4 Facilities, and depending on the results of Phase I testing, may perform Phase II studies on any of such sites. Such activities will be performed at the proposed site of the Y4 Facility (and immediately adjacent thereto) and Other Y4 Facilities prior to the start of construction |
2
(scheduled to begin July 1, 2006); provided , however , that the Parties acknowledge that the SanDisk Consultant will not be permitted to obtain soil or water samples from those areas identified on Exhibit A (such areas, the Untested Areas ). Subject to the requirements of the owner of the Other Y4 Facilities, each Consultant will have all access to the proposed site of the Y4 Facility and Other Y4 Facilities to the extent necessary to conduct the Phase I and Phase II studies. | ||
2.3 | Information from Monitoring Activities . Toshiba shall share, or cause to be shared, with SanDisk and, upon SanDisks request, the SanDisk Consultant, the results of any monitoring activities conducted by Toshiba or its Affiliates with respect to the surface and subsurface conditions on the proposed site of the Y4 Facility and Other Y4 Facilities on or after the Effective Date and until the FA Termination Date; provided that if as of the FA Termination Date any claims have been made against SanDisk with respect to its indemnification obligations hereunder, on SanDisks request, Toshiba shall continue to provide SanDisk the results of any monitoring activities to the extent such results may affect the evaluation or determination of alleged liability of SanDisk hereunder. The Parties acknowledge and agree that any such information concerning the Y4 Facility and Other Y4 Facilities shall be considered Confidential Information of the Company and any such information concerning the Yokkaichi Facility (including the Y4 Facility and Other Y4 Facilities) shall be considered Confidential Information of Toshiba. | |
3. | Baseline Environmental Report. | |
Each Party shall direct the Consultant retained by it to (i) provide the other Consultant and other Party with its initial environmental report on the Y4 Facility and Other Y4 Facilities and (ii) discuss the reports in good faith with the other Consultant with the intent of the Parties and their Consultants agreeing upon a single, combined report (the Y4 Baseline Environmental Report ). If Toshiba, SanDisk and the Consultants are unable to agree upon a single report within sixty (60) days after the Closing, then the draft reports of both Consultants (or combined report indicating areas of disagreement) shall collectively be considered to be the Y4 Baseline Environmental Report. | ||
4. | Environmental Compliance. | |
4.1 | Compliance . The Parties confirm their intent that the Y4 Facility and Other Y4 Facilities and all operations of the Company be maintained in compliance with all Environmental Laws, including by having remedial measures taken as required by any Governmental Authority or otherwise reasonably necessary to ensure that the Y4 Facility and Other Y4 Facilities and all operations of the Company will remain in compliance with all Environmental Laws. | |
4.2 | Notice . Each Party shall promptly notify the other of any circumstances of which it becomes aware that require or could reasonably be expected to require remediation or other actions to ensure that the Company and its operations are and will be maintained in compliance with all Environmental Laws and to minimize the aggregate Covered |
3
Environmental Costs (as defined below) that may be incurred. Upon any such notice being given and received, the Parties shall promptly discuss in good faith and seek to agree upon the measures to be taken in response to such circumstances. Pending their agreement, nothing shall prevent or limit Toshiba, acting in good faith on its own initiative or upon SanDisks reasonable request, from investigating the circumstances of any releases of Hazardous Substances or taking steps reasonably appropriate to limit or prevent ongoing releases, to limit the effects of a release, or to prevent or limit any exposure or damage resulting from, arising out of or otherwise by virtue of a release, including taking immediate or urgent steps as appropriate in light of the circumstances then known, provided , that nothing in this paragraph shall require either Party to take any step except as required by applicable Environmental Law. | ||
5. | Indemnification Obligations. | |
5.1 | Mutual Responsibility and Indemnity for Environmental Costs . | |
(a) | Subject to Section 5.1(b), each of SanDisk and Toshiba shall: |
1. | be responsible for bearing 50% of all costs, expenses or liability (including claims by third parties or any Governmental Authority) resulting from any contamination from the release or discharge of Hazardous Substances resulting from, arising out of or otherwise by virtue of the construction or operation of the Y4 Facility or Other Y4 Facilities from the Closing until the FA Termination Date, including any and all costs to investigate, remove or remediate any release of Hazardous Substances or otherwise reasonably necessary to assure that the Company and the Y4 Facility and Other Y4 Facilities are and will (until the FA Termination Date) remain in compliance with then applicable Environmental Laws ( Environmental Costs ); and | ||
2. | indemnify, defend and hold harmless the other Party and the Company (and their respective Indemnified Parties) for its 50% share of all Environmental Costs. |
(b) | Each of SanDisks and Toshibas responsibility for 50% of Environmental Costs under Section 5.1(a) shall be subject to each of the following limitations (Environmental Costs not excluded from the one or both Parties responsibility under this Section 5.1(b), Covered Environmental Costs ): |
1. | Except as provided in Section 5.2(a), neither Party shall be responsible for conditions identified in the Y4 Baseline Environmental Report, including responsibility for any Environmental Costs resulting from, arising out of or otherwise by virtue of remediation or removal of pre-existing conditions. Without limiting the foregoing, neither party shall be responsible for remediation or removal of pre-existing conditions in the area depicted as Area #3 on the attached Exhibit B or the third-party-owned land adjacent thereto. However, if remedial measures otherwise taken in accordance with this Agreement incidentally result in |
4
remediation or removal of conditions not resulting from operation of the Y4 Facility or Other Y4 Facilities, only the Environmental Costs paid for the remedial measures taken with respect to the Y4 Facility or Other Y4 Facilities, as applicable (including amounts paid for remedial measures taken with respect to the Y4 Facility or Other Y4 Facilities that return the Y4 Facility or Other Y4 Facilities to a condition better than that identified in the Y4 Baseline Environmental Report) shall constitute Covered Environmental Costs. | |||
2. | Neither Party shall be responsible for Environmental Costs to the extent such Environmental Costs are incurred as a result of the willful misconduct of employees, agents or representatives of the other Party. | ||
3. | Environmental Costs incurred for remediation shall only constitute Covered Environmental Costs to the extent reasonably necessary to ensure that the Company fulfills the Prudent Operator Standard. The Prudent Operator Standard means taking all such remedial measures (i) as are required to be in compliance with all then effective Environmental Laws, (ii) that have been required by a Governmental Authority or (iii) that a prudent operator of a similar facility would then take or begin to take to ensure that its continuing operations and facilities will remain in compliance with then effective Environmental Laws and with Environmental Laws as they are then scheduled to go into effect or are anticipated to be changed in the next one [ * ]. | ||
4. | No Environmental Costs shall constitute Covered Environmental Costs with respect to either Party to the extent such Partys liability limit under Section 5.5 has been exceeded. |
(c) | If the Parties are not able to agree on whether any given Environmental Costs constitute Covered Environmental Costs (including whether remediation is necessary to fulfill the Prudent Operator Standard), such dispute shall be resolved by the mediation and arbitration provisions of Appendix A. |
5.2 | Toshiba Indemnity . Toshiba shall indemnify SanDisk and its Indemnified Parties from any environmental costs, expenses or liabilities of SanDisk resulting from, arising out of or otherwise by virtue of: |
(a) | environmental conditions existing at the Yokkaichi Facility (including the Y4 Facility but excluding conditions from operations of the Y3 Facility) prior to the Closing; |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(b) | the actions or omissions of Toshiba, its Affiliates or its or their respective employees, directors, agents or representatives (other than in connection with the operation of the Y4 Facility or Other Y4 Facilities), for which Toshiba shall be solely responsible; provided however , that Toshiba shall have no indemnification obligation under this Section 5.2(b) to the extent that any Environmental Costs result from, arise out of or otherwise occur by virtue of actions or omissions of SanDisk, its Affiliates or its or their respective employees, directors, agents or representatives, for which SanDisk shall be solely responsible; |
(c) | from the operations of the Y4 Facility or Other Y4 Facilities after the FA Termination Date (unless SanDisk is the Buyer for purposes of Section 5.3, in which case this Section 5.2(c) shall not apply); or |
(d) | environmental conditions existing before Closing at Area #3, to the extent of contractual rights (including to indemnification), claims or defenses of Toshiba against Yokkaichi City or other lessors to Toshiba of Area #3 ( Third Party Property Indemnity ) that are actually enjoyed by Toshiba (and to the extent SanDisk bears its pro rata share in exercising any such rights, claims or defenses) and further provided that, in the event such Third Party Property Indemnity is not assignable or otherwise available for the direct benefit of SanDisk, Toshiba shall exercise reasonable efforts to obtain the benefits of such Third Party Property Indemnity for SanDisk (with any associated costs of exercising such rights to be borne pro rata by SanDisk). |
5.3 | Buyer Indemnity . If either of Toshiba or SanDisk (as Buyer ) acquires the interests of the other (as Seller ) in the Company, the Y4 Facility and Other Y4 Facilities (whether through acquiring its Shares in the Company, by an asset sale and liquidation or by other means), then, subject to Section 7, Buyer shall indemnify Seller and its Indemnified Parties from any environmental costs, expenses or liability of Seller resulting from, arising out of or otherwise by virtue of, operations of the Y4 Facility and Other Y4 Facilities after the FA Termination Date. However, Buyer shall have no indemnification obligation under this Section 5.3 to the extent that any Seller environmental costs, expenses or liabilities result from, arise out of or otherwise by virtue of actions or omissions of Seller, its Affiliates or its or their respective employees, directors, agents or representatives. |
5.4 | Control by Indemnifying Party . |
(a) | The indemnifying Party under Section 5.2 or 5.3 shall have the sole right to control the defense of any claim and the method and scope of remediation with respect to which the indemnified Party seeks indemnification, provided that the indemnifying Party shall not enter into any settlement that would materially affect the operations of the indemnified Party at the Yokkaichi Facility unless the indemnified Party has granted its prior written consent. |
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(b) | The Parties shall cooperate in good faith to seek to agree upon the means of joint defense of any third party claim giving rise to Covered Environmental Costs (with any disagreement to be resolved by the mediation and arbitration provisions set forth in Appendix A ) |
5.5 | Liability Limit . Neither Partys aggregate liability for Covered Environmental Costs or indemnification obligations under Sections 5.1, 5.2 and 5.3 shall exceed the greater of US$5 million or the aggregate purchase price of Y4 NAND Flash Memory Products by such Party from the Company during the six years prior to the date of the applicable claim (or in the case of liability arising after the FA Termination Date, for the six year period immediately preceding the FA Terminate Date). |
6. | Satisfaction of Indemnification Obligations. |
6.1 | Prompt Payment . Each Party shall promptly pay its 50% share of any Covered Environmental Costs paid by the Company or by the other Party in excess of its obligation to bear 50% of the Covered Environmental Costs. In principle, Toshiba and SanDisk shall bear their respective 50% shares of any given Covered Environmental Costs via adjustments to the purchase prices they pay Company for Y4 NAND Flash Memory Products, pursuant to the applicable FA Master Operative Documents. The Parties shall discuss in good faith the means and the timing of payment of their respective 50% share of Covered Environmental Costs, taking into account when the Covered Environmental Costs are paid by the Company or by the other Party and the amount of such Covered Environmental Costs. To the extent the obligations of either Party will not be timely or fully retired by wafer price increases, the Parties shall directly pay their respective 50% share of Covered Environmental Costs. |
6.2 | Action in the Name of the Company . Either Party making a demand for indemnification or contribution pursuant to this Agreement shall be entitled, notwithstanding anything to the contrary in the FA Master Agreement or the FA Operating Agreement, to cause the Company to make such demand, if doing so is appropriate to fulfill the intent of this Section 6 (e.g., if the Company has borne the Covered Environmental Costs and the claiming Party has already reimbursed the Company 50% of the same). |
7. | Post Termination Environmental Costs and Exit Environmental Report. |
7.1 | Environmental Costs Paid Post Termination . Except as otherwise set forth in this Section 7, the Parties obligations under Section 5.1 shall expire as of the FA Termination Date: |
(a) | In respect of Environmental Costs for remediation, to the extent the Exit Environmental Report (as defined below) identifies contamination at the Y4 Facility or Other Y4 Facilities and a good faith claim concerning shared responsibility for such remediation costs is made by one of the Parties before the FA Termination Date, any obligations of the Parties under Section 5.1(a) (subject to Section 5.1(b)) in respect of remediation of |
7
such contamination shall survive the FA Termination Date, but only for so long and to the extent the Prudent Operator Standard continues to require remediation in respect of such contamination. |
(b) | In respect of Covered Environmental Costs resulting from a bona fide third party claim, the Parties obligations under Section 5.1(a) (subject to Section 5.1(b)) shall survive[ * ]. |
7.2 | Exit Environmental Report . | |
(a) | Promptly upon (i) the exercise by either Party of any right under the FA Operating Agreement and/or the FA Master Agreement to acquire the Shares of the other Party in the Company, to sell its Shares in the Company to the other Party or to cause the dissolution of the Company, or (ii) entering into any letter of intent or agreement for the sale of the Y4 Facility, Other Y4 Facilities or all or substantially all of the assets (leased or owned) of the Company, the Parties shall engage an environmental consultant from an internationally recognized environmental investigation firm that has experience in Japan and that is mutually acceptable to the Parties (the Exit Consultant ) to conduct and complete Phase I and Phase II investigations of the Y4 Facility and Other Y4 Facilities as of a date as close as practicable to but in any event in advance of the FA Termination Date. Toshiba shall facilitate the Exit Consultants access to the Yokkaichi Facility as reasonably necessary to conduct such investigations. | |
(b) | The Exit Consultant shall be directed to prepare a draft report based on its Phase I and Phase II investigations and to deliver the draft report to SanDisk and Toshiba (and if either so directs, to any environmental consultant either Party has engaged for its own account). SanDisk and Toshiba, directly and/or through their respective consultants, shall have 60 days from receipt to comment on the draft report (any such comment shall be delivered both to the Exit Consultant and the other Party and any consultant it engages for its own account). The Exit Consultant shall then be directed to issue to the Parties its final report (the Exit Environmental Report ), which shall be final and binding on the Parties. | |
(c) | Covered Environmental Costs arising from the Exit Environmental Report process shall be payable as provided in Section 6.1. | |
(d) | Unless all payments due for Covered Environmental Costs in connection with the Exit Environmental Report process have been made before the FA Termination Date, the Buyer shall be entitled to withhold from the purchase price payable (or distributable) to |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Seller and place into third party escrow up to [ * ] of such purchase price (but not to exceed the balance of Sellers liability limit in Section 5.5), which shall serve as security for Sellers responsibility for Covered Environmental Costs determined pursuant to this Section 7. | ||
7.3 | [*] | |
8. | Miscellaneous. | |
8.1 | Survival . Sections 5, 6, 7 and 8 and Appendix A shall survive the termination or expiration of this Agreement. | |
8.2 | Entire Agreement . This Agreement, together with the exhibits, schedules, appendices and attachments thereto, constitutes the agreement of the Parties to this Agreement with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter. | |
8.3 | Effective Time of Agreement . Notwithstanding the effective date of this Agreement first written above, SanDisks indemnification obligations hereunder shall not become effective until its Consultant has completed its Phase II soil sampling of the proposed site of the Y4 Facility. SanDisk shall use its best efforts to cause its Consultant to complete such sampling on an expedited basis, with a goal of completion on or before June 30, 2006, and Toshiba shall take all steps necessary to ensure that SanDisks Consultant is granted timely access to the entire proposed site of the Y4 Facility (taking into account measures to avoid adverse effects to the manufacturing operations of the Yokkaichi Facility) to complete such Phase II soil sampling within such period. | |
8.4 | Governing Law . This Agreement shall be governed and construed as to all matters including validity, construction and performance by and under the substantive laws of Japan. | |
8.5 | Dispute Concerning Prudent Operator Standard . Notwithstanding anything to the contrary in Section 2.5 of Appendix A , if the Parties are not able to agree upon what application of the Prudent Operator Standard requires with respect to any given proposed remediation hereunder, at the request of either of them they shall engage a neutral and independent environmental consultant acceptable to both Parties (the Independent Consultant ) to facilitate resolution of such dispute. The Parties (and at the option of each of them their own environmental consultants) shall meet and discuss the matter with the Independent Consultant and seek in good faith to resolve the dispute. If the Parties |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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are not able to resolve the dispute within 60 days after initiating discussions with the Independent Consultant, then at any time after such 60 day period either Party may bring an arbitration claim pursuant to Section 2.5 of Appendix A to resolve the dispute concerning application of the Prudent Operator Standard. | ||
8.6 | Assignment . Neither party hereto may transfer this Agreement or any of its rights hereunder (except for any transfer to an Affiliate or in connection with a merger, consolidation or sale of all or substantially all the assets or the outstanding securities of such party, which transfer shall not require any consent of the other party) without the prior written consent of the other party hereto (which consent may be withheld in such other partys sole discretion), and any such purported transfer without such consent shall be void. |
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TOSHIBA CORPORATION | ||||||
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By: | |||||
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Name: | Masashi Muromachi | ||||
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Title: | President and CEO | ||||
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Semiconductor Company | |||||
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Corporate Executive Vice President | |||||
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SANDISK (IRELAND) LIMITED | ||||||
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||||||
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By: | |||||
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||||||
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Name: | Sanjay Mehrotra | ||||
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Title: | Director |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1. | Indemnification. | |
1.1 | Patent Infringement . With regard to any and all sales of Y4 NAND Flash Memory Products by the Company to SanDisk ( Company Products ): | |
(a) | Subject to the terms and conditions listed below, Toshiba agrees to indemnify and defend SanDisk in any legal proceeding, lawsuit or other judicial action, [*]claims that the Company Products supplied by the Company infringe any [*] patent(s). With regard to any claim of patent infringement for which Toshiba has indemnification obligations hereunder, Toshibas obligations are subject to the following conditions: |
(i) | SanDisk shall notify Toshiba in writing of such claim [*]; | ||
(ii) | SanDisk shall also notify Toshiba, in writing [*]; | ||
(iii) | SanDisk shall provide Toshiba with notice of any other written communication indicating potential patent infringement claims against the Company Products [*]; provided , however , SanDisks failure to provide such notice shall in no way constitute a breach of this Agreement by SanDisk nor in any way excuse Toshibas obligations under this Agreement; | ||
(iv) | [*], Toshiba shall have the sole and exclusive control of the defense or settlement |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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of such claim, [*]; and | |||
(v) | SanDisk shall provide all reasonable assistance in defending such claim. |
(b) | Notwithstanding the foregoing, Toshiba shall not be obligated to indemnify or defend SanDisk in the event that such infringement arises from: |
(i) | [ * ]; | ||
(ii) | [*] | ||
(iii) | [*] |
(c) | [*] | |
(d) | [*] | |
(e) | In addition to the obligations set forth above, should any third party patent claim result in a temporary or permanent injunction against the manufacture, use, sale, offer for sale, importation or otherwise disposal of the Company Products by SanDisk, Toshiba shall use best efforts to undertake one of the following actions: |
(i) | [*] | ||
(ii) | [*] |
(f) | The total cumulative liability of Toshiba under this Agreement, exclusive of the remedy set forth in subparagraph (e), above, shall be limited to an amount not to exceed the greater of (x) [*]or (y) [*]. | |
1.2 | Qualifying Claims . | |
(a) | If either Party receives a notice of a [*] or becomes aware that the Company has received such a notice, it shall promptly notify the other Party. Promptly following the notified Partys receipt of such notice from the notifying Party, the Parties shall meet and discuss in good faith whether and how [*], in accordance with the principles set forth in Section 1.2(b). | |
(b) | In discussing and evaluating each [*], Toshiba and SanDisk shall discuss and agree upon [*]. | |
(c) | If despite their good faith efforts the Parties are not able to agree upon [*] pursuant to |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Section 1.2(b) for [*], the matter shall be resolved in accordance with the dispute resolution procedures set forth in the Master Agreement. | ||
(d) | [*] | |
1.3 | [*] | |
2. | termination | |
This Agreement shall terminate [ * ], and upon such termination, this Agreement shall be of no further force and effect, and Toshiba and SanDisk shall thereafter have no liability hereunder. | ||
3. | miscellaneous | |
3.1 | Certain Definitions and Interpretive Rules . | |
(a) | As used herein, the term Agreement means this Patent Indemnification Agreement together with any exhibits, schedules, appendices and attachments hereto. | |
(b) | Capitalized terms used but not defined in the main body of this Agreement shall have the respective meanings assigned to them in attached Appendix A . If any capitalized term used in this Agreement is not defined in either the main body of this Agreement or Appendix A , it shall have the meaning assigned to it in the Master Agreement. | |
(c) | The rules of construction and documentary conventions and general terms and conditions set forth in Appendix A shall apply to this Agreement. | |
3.2 | [*] | |
(a) | [*] |
(i) | [*] | ||
(ii) | [*] | ||
(iii) | [*] |
3.3 | Survival . Except as otherwise specifically provided in this Agreement, all covenants, agreements, representations and warranties of the Parties made in or pursuant to such agreement or instrument shall survive the execution and delivery of such agreement or instrument and the closing of the transactions contemplated thereby, notwithstanding any |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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investigation by or on behalf of any party. Further, the provisions set forth in this Article III shall survive and shall apply with respect to this Agreement following termination thereof pursuant to Article II hereof. | ||
3.4 | Assignment . Neither Party shall transfer, or grant or permit to exist any Lien (except Permitted Liens) on, this Agreement or any of its rights hereunder, (except for any transfer to an Affiliate or in connection with a merger, consolidation or sale of all or substantially all the assets or the outstanding securities of such Party, which transfer shall not require any consent of the other Party) without the prior written consent of the other Party (which consent may be withheld in each such other Partys sole discretion), and any such purported transfer or Lien without such consent shall be void. [ * ]. | |
3.5 | Governing Law . This Agreement shall be governed and construed as to all matters including validity, construction and performance by and under the substantive laws of the State of California. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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TOSHIBA CORPORATION
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||||
By: | ||||
Name: | Masashi Muromachi | |||
Title: | President and CEO Semiconductor Company Corporate Executive Vice President | |||
SANDISK CORPORATION
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||||
By: | ||||
Name: | Eli Harari | |||
Title: |
Chief Executive Officer
[ * ] |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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3.1 | The Guarantor shall, in the event the Lessee fails to perform all or any part of its obligations under the Guaranteed Obligation within 10 Business Days ( Ginko-Eigyobi ) from each due date, perform the Guarantee in favor of the SD Lessors within 20 Business Days ( Ginko-Eigyobi ) from the receipt of the written demand from the SD Lessors. |
3.2 | If there is any Guaranteed Obligation upon the occurrence of any Termination Event (Kaijo-Jiyu) under the Lease Agreement, the Guarantor shall perform the Guarantee within 20 Business Days (Ginko-Eigyobi) from the receipt of the written demand from the SD Lessors. |
3.3 | If any Termination Event (Kaijo-Jiyu) under the Lease Agreement occurs, the Guarantor may, pursuant to Article 26, Paragraph 8 or Article 26, Paragraph 9 of the Lease Agreement, succeed the rights, obligations and legal title of the Lessee under the Lease Agreement or the rights, obligations and legal title of Other Guarantor (defined below) under the guarantee agreement dated the same date hereof by and between Toshiba Corporation (the Other Guarantor) and the Toshiba Lessors, whereupon such Termination Event (Kaijo-Jiyu) shall be deemed cured. |
3.4 | The Guarantor may not exercise the right of subrogation, prior indemnity and post indemnity with respect to the Guarantee against the Lessee until any and all receivables of the SD Lessors and the Toshiba Lessors against the Lessee in respect of this Agreement and the Lease Agreement have been paid in full. |
4.1 | The guarantee under this Agreement shall be granted in addition to other security interests or guarantees held by the SD Lessors in connection with the Guaranteed Obligation, and the effectiveness of such other securities or guarantees shall not be affected by the security interests pursuant to this Agreement. |
4.2 | The Guarantor shall not claim exemption even if the SD Lessors, in their reasonable discretion, alter or terminate other security interests or guarantees securing the Guaranteed Obligations, provided, however, that the SD Lessors shall give at least fifteen (15) days prior notice to the Guarantor in case of such alteration or termination unless the same is contemplated by the Related Agreements (Honken-Kanren-Keiyaku). |
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[Guarantee Agreement] | |
Guarantor:
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SanDisk Corporation | |
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By: | |
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Title: |
Page | ||||||
Article 1
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(Definitions) | 1 | ||||
Article 2
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(Transaction Structure) | 12 | ||||
Article 3
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(Lease) | 13 | ||||
Article 4
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(Delivery) | 13 | ||||
Article 5
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(Prior conditions regarding delivery) | 14 | ||||
Article 6
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(Related documents) | 15 | ||||
Article 7
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(Payment of lease payment etc.) | 16 | ||||
Article 8
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(Immunity from defect liability) | 19 | ||||
Article 9
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(Burden of loss, damage and risk) | 20 | ||||
Article 10
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(Representation of Owner) | 21 | ||||
Article 11
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(Quiet Enjoyment) | 22 | ||||
Article 12
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(Installation and Use) | 22 | ||||
Article 13
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(Possession and Sublease) | 22 | ||||
Article 14
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(Maintenance Management) | 23 | ||||
Article 15
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(Change in Original Condition) | 23 | ||||
Article 16
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(Ownership of Parts) | 24 | ||||
Article 17
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(Inspection) | 24 | ||||
Article 18
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(Obligations) | 24 | ||||
Article 19
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(Insurance) | 25 | ||||
Article 20
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(Representations and Warranties) | 26 | ||||
Article 21
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(Covenants) | 27 | ||||
Article 22
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(Indemnity and Expenses Liabilities) | 29 | ||||
Article 23
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(Number of individual transactions and change of deliverable period) | 31 | ||||
Article 24
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(Purchase Options) | 31 | ||||
Article 25
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(Return) | 32 | ||||
Article 26
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(Termination of Agreement) | 35 | ||||
Article 27
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(Default Interest) | 39 | ||||
Article 28
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(Transfer of Rights and Obligations) | 39 | ||||
Article 29
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(Limitations on Recourse to the Property) | 40 | ||||
Article 30
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(Notices, etc.) | 42 | ||||
Article 31
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(Communication of Intention or Reporting of Facts or Receipt thereof by each Lessor) | 42 |
Page | ||||||
Article 32
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(Modification of Agreement) | 42 | ||||
Article 33
|
(Confidentiality) | 42 | ||||
Article 34
|
(Governing Law) | 43 | ||||
Article 35
|
(Jurisdiction) | 43 |
Attachment 1
|
Lease Terms and Conditions | |
Attachment 2
|
Request for Lease and Approval | |
Attachment 3
|
Loan Certificate | |
Attachment 4
|
Permitted Liens | |
Attachment 5
|
Certificate of Return | |
Attachment 6
|
Certificate of Transfer | |
Attachment 7
|
Conditions at the Time of Return | |
Attachment 8
|
Notification address |
1 | Unless the context makes it clear that the term has a different meaning, the terms in the left column below, used in this Agreement, shall have the meanings set forth in the right column below, corresponding to the relevant terms. |
SD Group Companies
|
San Disk Corporation and companies of which San Disk Corporation directly or indirectly owns 50% or more of their voting stocks | ||
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SD Tranches
|
Collectively refers to SD Tranche 1-A, SD Tranche 1-B, SD Tranche 1-C, and SD Tranche 2, and individually, each SD Tranche. | ||
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SD Tranche 1-A
|
SD Tranche 1-A composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. | ||
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SD Tranche 1-AB
|
Collectively, SD Tranche 1-A and SD Tranche 1-B. | ||
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SD Tranche 1-B
|
SD Tranche 1-B composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. | ||
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SD Tranche 1-C
|
SD Tranche 1-C composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. |
SD Tranche 2
|
SD Tranche 2 composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. | ||
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SD Lessor RA
|
A person who named as the SD Lessor RA in Attachment 1 Item 15. | ||
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Reason for cancellation
|
Any of all of the reasons stipulated in Article 26, Paragraph 1 | ||
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Loan certificate
|
Loan certificate for the Property prepared for each individual transaction in a manner provided in Attachment 3 pursuant to Article 4, Paragraph 5 | ||
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Stipulated loss payment
|
Amount calculated for each Tranche on a certain day in accordance with Attachment 1, Paragraph 9 | ||
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Taxes and public dues
|
Present or future tax, levy, withholding tax, fees, handling fees, monetary obligations as well as other monies (regardless of their names) and penalties, default assessments, surcharges, late charges and late interest thereon (regardless of their names) imposed by a tax authority or public office (both domestic and foreign) | ||
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Bank Business Day
|
Days on which banks operate in Japan | ||
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Payment for exercise of
purchase options
|
Amount calculated pursuant to Attachment 1, Paragraph 6 with respect to each Tranche for each lease payment date | ||
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|||
Individual transaction
|
Each individual transaction to be conducted pursuant to this Agreement and each loan certificate | ||
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Original Purchase
Agreement
|
Each purchase agreement executed between Lessee and a property manufacturer in connection with the purchase of the Property | ||
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Sublessee
|
Person who holds a sublease pursuant to the stipulation in Article 13 | ||
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Repayment standard fee
|
Amount calculated pursuant to Attachment 1, Paragraph 8 for the return date stipulated in Article 25, Paragraph 1 |
- 2 -
Performance, etc.
|
Performance, structure, design, design specification, practical value, exchange value, usability, sales possibility, commercial value, durability, operability, economical efficiency, compatibility with purpose, legality and any other performance, function, characteristics, value and utility of the Property | ||
|
|||
Reason for total loss
|
Any of the following incidents that occur to the Property or its unit component or component part: (a) Loss or whereabouts unknown (b) damage or failure, reasonably recognized by Lessee as impossible to repair or reuse from an economic viewpoint, which is confirmed by an appraisal company appointed by Lessor or (c) confiscation, expropriation or theft | ||
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Loss, etc.
|
Losses, damage, costs, fees, handling fees, liabilities, responsibilities, penal charges, penalties, delinquency charges, claims and lawsuits | ||
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|||
Unit component part
|
A set of each property (including subject parts fixed to or furnished with said property) listed by serial number separately in each loan certificate of the Property. Provided, however, that when a part or unit component part subject to said individual transaction is excluded from this Agreement, the remaining unit component part/s shall compose unit component parts subject to the said individual transaction thereafter. | ||
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Bankruptcy proceedings,
etc, |
General term referring to bankruptcy, civil rehabilitation or corporate reorganizations and other bankruptcy proceedings | ||
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Toshiba group companies
|
Toshiba Corporation and companies of which Toshiba Corporation directly or indirectly owns 50% or more of their voting shares | ||
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Toshiba Tranches
|
Collectively refers to Toshiba Tranche 1-A, Toshiba Tranche 1-B and Toshiba Tranche 2, and individually, each Toshiba Tranche. |
- 3 -
Toshiba Tranche 1-A
|
Toshiba Tranche 1-A composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. | ||
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Toshiba Tranche 1-AB
|
Collectively, Toshiba Tranche 1-A and Toshiba Tranche 1-B | ||
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Toshiba Tranche 1-B
|
Toshiba Tranche 1-B composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. | ||
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Toshiba Tranche 2
|
Toshiba Tranche 2 composed pursuant to Article 7, Paragraph 1 in relation to lease payments and other claims under this Agreement. | ||
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Toshiba Lessor RA
|
A person who named as the Toshiba Lessor RA in Attachment 1 Item 15. | ||
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Tranches
|
Collectively, SD Tranches and Toshiba Tranches, and individually, each Tranche. | ||
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Delivery Period
|
Period from the day of the execution of this Agreement to the final deliverable date stipulated in Attachment 1, Item 1 (provided however, when there is an agreement between Lessor and Lessee to extend the delivery period pursuant to Article 4, Paragraph 8, the period shall be such agreed delivery period). | ||
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Delivery place
|
Place, on each scheduled delivery day, where the Property or its unit component part is located, which the Lessee notifies the Lessor on a Banking Business Day immediately prior to the relevant scheduled delivery day. | ||
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Delivery date
|
Date on which each unit component part composing the Property is delivered pursuant to Article 4. | ||
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Scheduled delivery date
|
Each day stipulated in Attachment 1, Paragraph 1 as a scheduled delivery date for each individual transaction or other bank business day as agreed upon by Lessee and Lessor. |
- 4 -
Person to be compensated
|
Lessor, the Borrower, or the Lender and all or either of successor, director, employee or agent thereof. | ||
Obligation etc.
|
Ownership, right of possession, lease right, lease, mortgage, right of pledge, lien, security interests, right of mortgage and conditional rights thereto, subscription rights thereto, any other usufructuary right as well as security rights and rights based on attachment or provisional attachment. | ||
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Property purchase price
|
Sales price determined by Article 3, Paragraph 1 of the Master Sale and Purchase Agreement with respect to the Property or its each unit component part. | ||
|
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Property manufacturer
|
Person indicated in the column manufacturer on an itemized property list attached to a loan certificate. | ||
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Cause of default
|
Cause of cancellation or cancellation by notification or cause of cancellation as a result of passing of time or other conditions. |
- 5 -
Break funding cost
|
Damages or penalty or other monies (provided, however, that if Lessee has doubts about other monies, Lessor, Lessee and the Lender shall negotiate) borne by each Lessor with respect to raising funds for purchasing the Property upon nonperformance or early termination of a lease, pursuant to this Agreement. Such amount shall be calculated based on the aggregate of (1) the amount calculated by the relevant Lessor pursuant to its prescribed calculation method pursuant to the difference between the funding cost (shown in per annum) applicable to each Lessor in respect of its own share of the purchase price of the Property and the reinvestment rate in the market of the relevant Lessor, (2) the amount calculated by the SD Receivables Assignee pursuant to its prescribed calculation method pursuant to the difference between the funding cost (shown in per annum) applicable to the SD Receivables Purchaser in respect of the claims of the purchase price of the Property related to SD Tranche 1-C and the reinvestment rate in the market of the SD Receivables Assignee, and (3) the amounts of the damages or penalties or other monies the Lenders impose on the Borrowers pursuant to the Loan Agreements in relation to the failure to drawdown or the acceleration, etc., under the Loan Agreements (provided however, if Lessee has doubts about other monies, Lessor, Lessee and the Lenders shall consult with each other). | ||
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Return Adjustment Fee
|
Amount to be calculated pursuant to Attachment 1, Paragraph 7 with respect to the return date stipulated in Article 25, Paragraph 1. | ||
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The Lenders
|
Collective term for the SD Lenders and Toshiba Lenders. | ||
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The SD Lenders
|
Collective term for persons listed as the SD Lenders in Attachment 1, Paragraph 11. |
- 6 -
The Toshiba Lenders
|
Collective term for persons listed as the Toshiba Lenders in Attachment 1, Paragraph 11. | |
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Toshiba Lender Agent
|
The person named as Toshiba Lender Agent in Attachment 1, Item 11. | |
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The Loan Agreements
|
Collective term for the SD Loan Agreement and the Toshiba Loan Agreement. | |
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The SD Loan Agreement
|
Collective term for Revolving Loan Agreement (SD Tranches 1-AB) concluded between the SD Borrower and the SD Lender on the same date as the execution of this Agreement and its Acknowledgement of Debts and Repayment Agreement thereunder. | |
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The Toshiba Loan Agreement
|
Collective term for Revolving Loan Agreement (Toshiba Tranches 1-AB) concluded between the Toshiba Borrower, Toshiba Lender, and Toshiba Lender Agent on the same date as the execution of this Agreement and its Acknowledgment of Debts and Repayment Agreement thereunder. | |
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The Borrowers
|
Collective term for the SD Borrower and the Toshiba Borrower. | |
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The SD Borrower
|
Persons listed as SD Borrower in Attachment 1, Paragraph 12 | |
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The Toshiba Borrower
|
Persons listed as Toshiba Borrower in Attachment 1, Paragraph 12 | |
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All Parties Agreement
|
Agreement setting forth priority executed by the Lenders, the Toshiba Lender Agent, Administrative Custodian, Lessor, the Borrowers and the SD Receivables Assignee on the same date as this Agreement |
- 7 -
Related Agreements
|
This Agreement, Sale and Purchase Agreement, Sale and Purchase Agreement regarding Receivables, SD Receivables Assignment Agreement, All Parties Agreement, Master Agreement on Security Assignment regarding Claims, Master Agreement on Commitment for Security Assignment regarding Claims, Administrative Services Agreement, Guarantee Agreement, Letter of Agreement, agreements and other documents related thereto | ||
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Master Agreements on
Security Assignment regarding Claims |
Collective term for SD Master Agreement on Security Assignment regarding Claims and Toshiba Master Agreement on Security Assignment regarding Claims | ||
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SD Master Agreement on
Security Assignment regarding Claims |
Collective term for Master Agreement on Security Assignment regarding Claims (SD Tranches 1-AB) executed between the SD Borrower and the SD Lenders on the same date as this Agreement regarding the right to claim performance of guaranteed obligations with respect to (i) claims associated with SD Tranches 1-AB under this Agreement and (ii) claims associated with SD Tranches 1-AB under this Agreement based on SD Guarantee Agreement and each individual agreement based thereon. | ||
|
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Toshiba Master Agreement
on Security Assignment regarding Claims |
Collective term for Master Agreement on Security Assignment regarding Claims (Toshiba Tranches 1-AB) executed between the Toshiba Borrower and the Toshiba Lender on the same date as this Agreement regarding the right to claim performance of guaranteed obligations with respect to (i) claims associated with Toshiba Tranches 1-AB under this Agreement and (ii) claims associated with Toshiba Tranches 1-AB under this Agreement based on Toshiba Guarantee Agreement and each individual agreement based thereon. |
- 8 -
Sale and Purchase
Agreements regarding
Receivables
|
Collective term for SD Sale and Purchase Agreement regarding Receivables and Toshiba Sale and Purchase Agreement regarding Receivables | ||
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SD Sale and Purchase
Agreement regarding
Receivables
|
Collective term for Sale and Purchase Agreement regarding Master Lease Receivables (SD Tranches 1-AB) executed between the SD Lessors and the SD Borrower on the same date as this Agreement regarding the right to claim performance of guaranteed obligations with respect to (i) claims associated with SD Tranches 1-AB under this Agreement and (ii) claims associated with SD Tranches 1-AB under this Agreement based on the SD Guarantee Agreement and each individual agreement based thereon | ||
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Toshiba Sale and Purchase
Agreement regarding
Receivables
|
Collective term for Sale and Purchase Agreement regarding Master Lease Receivables (Toshiba Tranches 1-AB) executed between the Toshiba Lessors and the Toshiba Borrower on the same date as this Agreement regarding the right to claim performance of guaranteed obligations (i) claims associated with Toshiba Tranches 1-AB under this Agreement and (ii) claims associated with Toshiba Tranches 1-AB under this Agreement based on the Toshiba Guarantee Agreement and each individual agreement based thereon | ||
|
|||
SD Receivables Assignment
Agreement |
Collective term for Master Lease Receivables Purchase and Sale Agreement (SD Tranche 1-C) executed between the SD Lessors and the SD Receivables Assignee on the same date as this Agreement regarding the right to claim performance of guaranteed obligations for (i) claims associated with SD Tranche 1-C under this Agreement and (ii) claims associated with SD Tranche 1-C under this Agreement based on the SD Guarantee Agreement and each individual agreement based thereon. |
- 9 -
SD Receivables Assignee
|
The persons listed as SD Receivables Assignee in Attachment 1, Item 13. | ||
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The Administrative
Services Agreement |
Collective term for SD Administrative Services Agreement and Toshiba Administrative Services Agreement | ||
|
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SD Administrative
Services Agreement |
SD Administrative Services Agreement concluded between the SD Lessors and the Administrative Custodian on the same date as this Agreement | ||
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Toshiba Administrative
Services Agreement |
Toshiba Administrative Services Agreement concluded between the Toshiba Lessors and the Administrative Custodian on the same date as this Agreement | ||
|
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Administrative Custodian
|
Collectively means the SD Administrative Custodian and the Toshiba Administrative Custodian. | ||
|
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SD Administrative
Custodian |
The persons listed as SD Administrative Custodian in Attachment 1, Item 15. | ||
|
|||
Toshiba Administrative
Custodian |
The persons listed as Toshiba Administrative Custodian in Attachment 1, Item 15. | ||
|
|||
Letter of Agreement
|
Letter of consent by the Guarantors and Lessees in a specified form with respect to assignment of receivables based on each Agreement on Security Assignment regarding Claims and establishment of the right to complete commitment for security assignment based on the Agreement on Commitment for Security Assignment regarding Claims | ||
|
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Master Sale and Purchase
Agreement
|
Collective term for Master Sale and Purchase Agreement with respect to the Property executed between Lessee and Lessor on the same date as this Agreement and each individual agreement based thereon. |
- 10 -
The Property
|
Each unit component (including subject parts) in each individual transaction reported by Lessee to Lessor pursuant to Article 4, Paragraph 1 of Master Sale and Purchase Agreement, confirmed by the request for lease and approval to be submitted five (5) bank business days prior to the relevant individual transaction (or if agreed otherwise between Lessee and Lessor, such date as agreed), a certificate of transfer, receipt and loan certificate delivered on the delivery date for said individual transaction. Provided, however, that if some portion of unit components is excluded from this Agreement due to the occurrence of total loss, or by exercise of purchase options, the remaining unit components shall constitute the Property thereafter. | ||
|
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Master Agreement on
Commitment for Security Assignment regarding Claims |
Collective term for Master Agreement on Commitment for Security Assignment regarding Claims concluded between Lessor and the Lenders on the same date as this Agreement and individual agreements pursuant thereto | ||
|
|||
Parts
|
Equipment and parts composing a unit component, and/or equipment, accessories, attachments and parts (including collection of parts and parts of similar kinds) fixed to or furnished with the Property | ||
|
|||
The Guarantee Agreements
|
Collective term for SD Guarantee Agreement and the Toshiba Guarantee Agreement | ||
|
|||
SD Guarantee Agreement
|
Guarantee Agreement concluded between SanDisk and the SD Lessors on the same date as this Agreement | ||
|
|||
Toshiba Guarantee
Agreement |
Guarantee Agreement concluded between Toshiba and the Toshiba Lessors on the same date as this Agreement | ||
|
|||
The Guarantors
|
Collectively refers to SanDisk and Toshiba | ||
|
|||
SanDisk
|
Person/s described as SanDisk in Attachment 1, Paragraph 14. |
- 11 -
Toshiba
|
Person/s described as Toshiba in Attachment 1, Paragraph 14 | ||
|
|||
Waived obligations, etc.
|
Obligations, etc. excluded pursuant to Article 18, Paragraph 1 | ||
|
|||
Lease period
|
Period starting on delivery date stipulated in Attachment 1, Paragraph 2. Provided, however, that if this Agreement is cancelled before expiration, the lease period shall terminate on such cancellation day. | ||
|
|||
Lease period expiration
date |
The last day of a lease period | ||
|
|||
Lease payment
|
Lease payment determined for each unit component of each Tranche pursuant to Attachment 1, Paragraph 3 | ||
|
|||
Lease payment calculation
period |
Period stipulated in Attachment 1, Paragraph 5 | ||
|
|||
Lease payment date
|
Date stipulated in Attachment 1, Paragraph 4 |
2 | With respect to quoting other agreements and documents in this Agreement, if the relevant agreements and documents are revised, added or changed after the Agreement was initially executed, they shall mean the relevant agreements and documents after they were revised, added or changed. | ||
3 | With respect to quoting provisions in this Agreement, the provisions shall mean, unless otherwise specially stated, the provisions of this Agreement. | ||
4 | With respect to referring to parties to the related agreements to this Agreement, the parties shall also include their successors and accredited assignees. |
1 | Lessee and Lessor confirm that transactions listed in Attachment 1, Paragraph 16 are planned with respect to the Property and they are inextricably linked with each other. | ||
2 | Lessee confirms that Lessor has the ownership of the Property during the lease period under this Agreement. |
- 12 -
1 | Pursuant to Master Sale and Purchase Agreement, Lessor shall receive from Lessee each unit component composing the Property on each delivery date and, in the meantime, shall lease said unit component to Lessee. | ||
2 | A lease of the Property and each unit component under this Agreement shall exist for each individual transaction during its lease period and it shall commence from the issuance date of each loan certificate pursuant to Article 4, Paragraph 5. Except where explicitly provided in this Agreement, a lease of the Property shall neither be cancelled nor terminated prior to its lease expiration date. | ||
3 | Lessee shall pay the lease payment pursuant to Article 7, Paragraph 2 as compensations for the lease under this Agreement. | ||
4 | Lessee shall have the right to quiet enjoyment of the Property pursuant to Article 11 and other provisions of this Agreement. |
1 | Lessee shall designate a scheduled date to deliver each unit component composing the Property to Lessor pursuant to Attachment 1, Paragraph and Lessee shall submit to Lessor the request for lease and approval in the form of Attachment 2 at least five (5) bank business days prior to the scheduled delivery date. Lessor shall confirm and agree on the contents and conditions of the request for lease and approval received from Lessee, and thereupon shall deliver to Lessee the relevant request for lease and approval after printing its name and sealing it. | ||
2 | Subject to the satisfaction of the conditions set forth in Article 5, and to receive from Lessee a unit component on each delivery date at a delivery location in accordance with Master Sale and Purchase Agreement, Lessor shall deliver said unit component in as is, where is condition to Lessee on the same date and at the same location for the purpose of the leasing stipulated in the previous Article, and Lessee shall receive said unit component from Lessor. | ||
3 | If it becomes necessary to change any scheduled delivery date, Lessee shall notify Lessor to that effect as soon as possible (at the latest by 5 bank business days prior). Lessee and Lessor shall agree on each amount of lease payment, payment for exercise of purchase options, Return Adjustment Fee, repayment standard fee and stipulated loss payment for each individual transaction, based on the actual property purchase price of and delivery date for said unit component. In such case, the agreed amount of lease payment, payment for exercise of purchase options, Return Adjustment Fee, repayment standard fee and |
- 13 -
stipulated loss payment, together with the actual property purchase price and the delivery date, shall be documented and attached to each loan certificate in the form specified in Attachment 3. | |||
4 | Lessee shall bear the cost and liabilities (including break funding cost; further, if Lessee bears the liability for break funding cost in accordance with this Agreement, Lessee shall pay the amount calculated based on the definition stipulated in Article 1 for each Tranche. Provided however, if respective amounts and payment periods for each Tranche are different, they shall be appropriately adjusted. Hereinafter, the same in this Agreement.) incurred as a result of a change of delivery date or delayed or failed delivery (excluding cases where the cause is attributable to Lessor, the SD Receivables Assignee or the Lenders). | ||
5 | Lessee shall prepare and deliver to Lessor a loan certificate in the form specified in Attachment 3 as the delivery of each unit component takes place pursuant to the above Paragraph 2. | ||
6 | Delivery of each unit component as part of leasing in each individual transaction under this Agreement shall be deemed complete by delivery of a loan certificate referenced in the preceding paragraph. Lessee may use each unit component from such delivery date of said loan certificate. | ||
7 | Lessee shall bear all the cost of delivering the Property under this Article. | ||
8 | In the event where delivery of the Property is not completed during a delivery period in accordance with Article 4 Paragraph 2, Lessee and Lessor shall faithfully negotiate a possibility of extending such delivery period. |
Lessors obligation to deliver each unit component for each individual transaction under Article 4 is conditional upon meeting the following conditions before the scheduled delivery date. Provided, however, that this shall not apply if Lessor notifies Lessee before completion of delivery that Lessor waives these conditions. |
(1) | That no event has occurred by a scheduled delivery date that triggers Lessor or Lessee to expect changes in laws, orders, notices or other legal, administrative guidance or tax changes that, in light of the purpose [of the transaction], Lessor or Lessee reasonably considers appropriate reasons to suspend or postpone the execution of such transaction planned in accordance with the related agreements, or that such transaction is illegal. (However, if Lessor or Lessee determines that an event applicable under this Item has occurred, Lessor or Lessee shall immediately |
- 14 -
notify and negotiate with the other party.) | |||
(2) | That Lessee has purchased from a manufacturer of the Property said unit components before such scheduled delivery date from a manufacturer in accordance with the Original Purchase Agreement, and Lessee has acquired the ownership thereof without incurring any obligations etc. (excluding waived obligations). | ||
(3) | That said unit component is insured under Article 19 by an insurance that is effective as of said scheduled delivery date. | ||
(4) | That no events of default have occurred. | ||
(5) | That no events have occurred that cause Lessor to determine that events constituting a total loss or leading to a total loss of said unit component. | ||
(6) | That related agreements to which Lessor or Lessee shall be a party are signed by all the parties, issued and continued to be in effect. | ||
(7) | That representations and warranties by Lessee under Article 20 are entirely correct as of said scheduled delivery date under existing conditions on the same day. | ||
(8) | That no significant change has been added to the FLASH PARTNERS MASTER AGREEMENT executed on September 10, 2004 between the Guarantors and SanDisk International Limited, or that this Agreement has not been cancelled, dissolved or terminated, and that there is no such material risk to the extent known to Lessee. | ||
(9) | That the long-term loan rating of SanDisk by Standard & Poors Rating Services or Moodys Investors Service is BB- or above Ba3, respectively, as of said scheduled delivery date. |
1 | Lessee and Lessor shall take steps necessary for execution of this Agreement and other related agreements and for authorization required to carry out obligations under this Agreement by the date of execution of this Agreement or each delivery date and, in the meantime, shall exchange certificates of seal impression for the seals used in these agreements (issued within three months prior to each signing), certified copy of company registration (issued within three months prior to the day of each signing) and Articles of Incorporation (valid as of the date of signing of this Agreement). | ||
2 | Lessee shall submit the following documents to Lessor by each scheduled delivery date: |
(1) | Insurance certificate for said unit component designated in Article 19 | ||
(2) | Original Letter of Agreement, notarized and dated, for said unit component | ||
(3) | Other documents reasonably requested by Lessor |
- 15 -
1 | Lessee and each Lessor agree that monetary claims of Lessor against Lessee in the form of lease payment, stipulated loss payment, Return Adjustment Fee, payments for exercise of purchase options and other payments connected to each individual transaction under this Agreement comprise Tranche 1-A, SD Tranche 1-B, SD Tranche 1-C, SD Tranche 2 and Toshiba Tranche 1-A and Toshiba Tranche 1-B. Each Tranche regarding each individual transaction shall consist of claims obtained by dividing such monetary claims by a rate provided in the loan certificate for said individual transaction. Further, a specific amount for each Tranches in the form of lease payment, stipulated loss payment, Return Adjustment Fee and payment for exercise of purchase options for each individual transaction shall be determined by Attachment 1, Paragraph 3, Paragraph 6, Paragraph 7 and Paragraph 9 of this Agreement and the loan certificate related to said individual transaction. | ||
In addition, (i) claims related to lease payment, stipulated loss payment, Return Adjustment Fee, and payment for exercise of purchase options regarding each SD Tranche shall be attributed to only the SD Lessors (each SD Lessor holds claims divided by the ratio of its share of the Property), and money for such claims shall be paid only to the SD Lessors, and (ii) claims related to lease payment, stipulated loss payment, Return Adjustment Fee, payment for exercise of purchase options regarding each Toshiba Tranche shall be attributed to only the Toshiba Lessors (each Toshiba Lessor holds claims divided by the ratio of its share of the Property), and money for such claims shall be paid only to the Toshiba Lessors. | |||
2 | Lessee shall, for each individual transaction, make a lease payment to Lessor for the lease payment calculation period that ends on each payment date by 11 am on such payment date. | ||
3 | In the event that the day that Lessee is supposed to make payment in any amount that Lessee has payment obligations for each individual transaction under this Agreement on a day other than a bank business day, with respect to such lease payment, stipulated loss payment, Return Adjustment Fee, and payment for exercise of purchase options, Lessee shall make payment on the following bank business day (if the following bank business day falls in next month, then use the previous bank business day shall apply). With respect to the lease payments, such payment amount shall be adjusted accordingly. With respect to other payments, payments shall be made on the following bank business day and such payments shall not be adjusted. |
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4 | The amount that Lessee owes under this Agreement shall be paid according to provisions set forth in Attachment 1, Paragraph 10(2), unless as otherwise agreed by the parties concerned. However, lease payment, stipulated loss payment, payment for exercise of purchase options and Return Adjustment Fee, Break Funding Cost and the related late fees thereto due under this Agreement regarding each SD Tranche shall be paid to the SD Borrower, and lease payment, stipulated loss payment, payment for exercise of purchase options and Return Adjustment Fee, Break Funding Cost, and the related late fees thereto due under this Agreement regarding each Toshiba Tranche shall be paid to the Toshiba Borrower, in accordance with Attachment 1, Paragraph 10(1). Lessee confirms that in connection with receiving said payments into the bank account of the Borrowers, the SD Lessors and the SD Receivables Assignee have delegated to the SD Borrower, and the Toshiba Lessors have delegated to the Toshiba Borrower, and each Borrower has accepted such delegations. If such delegation is terminated by prior written notice by the SD Lessors, the SD Receivables Assignee or Toshiba Lessors to the SD Borrower or the Toshiba Borrower, Lessor shall notify Lessee to that effect by at least one bank business day prior to the first lease payment due date after such termination. (In such case, with respect to lease payment, stipulated loss payment, payment for exercise of purchase options and Return Adjustment Fee, Break Funding Cost and the related late fees thereto due under this Agreement, the amount with respect to SD Tranches 1-AB shall be paid in the bank account of each SD Lender provided in Attachment 1, Paragraph 10(2); the amount with respect to SD Tranche 1-C shall be paid in the bank account of the SD Receivables Assignee provided in Attachment 1, Paragraph 10(2); the amount with respect to Toshiba Tranches 1-AB shall be paid in the bank account of each Toshiba Lender provided in Attachment 1, Paragraph 10(2); the amount with respect to SD Tranche 2 shall be paid in the bank account of each SD Lessor provided in Attachment 1, Paragraph 10(2); and the amount with respect to Toshiba Tranche 2 shall be paid in the bank account of each Toshiba Lessor provided in Attachment 1, Paragraph 10(2).). | ||
5 | Pursuant to this Agreement, Lessee is obliged to pay Lessor in full amount without any deduction, offsetting or defense regardless of any reasons (except where Lessor, the SD Receivables Assignee or the Lenders are responsible), including defective performance etc. by the Property, obligations against the Property, infringement against use of the Property or bankruptcy proceedings of the parties concerned. If Lessee is required by decree to withhold tax for the applicable payment, Lessee shall make an additional payment that is needed to ensure the amount that the receiving party would have received should such withholding have not been necessary. |
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6 | If a lease pursuant to this Agreement for each individual transaction is terminated on a day other than its lease payment date, regardless of the occurrence of a total loss of the Property or its unit component, cancellation, exercising of purchase options or return options by Lessee or other reasons (except where Lessor, SD Receivables Assignee or the Lenders are responsible for causing such termination), Lessee shall pay break funding cost to Lessor on said termination day. | ||
7 | If the amount that Lessee has paid to Lessor or the amount received by Lessor by disposition of the Property under this Agreement is less than the total amount of Lessees debts due on said payment date or receipt date under this Agreement for liquidation, such amount shall be appropriated to each debt in the following order. However, the claims of the same priority shall be distributed proportionally according to the amount of debt corresponding to the claims of the same priority each Lessor holds. |
(1) | Amount Lessee is required to pay Lessor under the related agreements (provided however, excluding items listed in sub-paragraphs (2) through (7) of this paragraph). | ||
(2) | Default interest related to lease payment, stipulated loss payment, Return Adjustment Fee, payment for exercise of purchase options due under SD Tranches 1-AB, SD Tranche 1-C and Toshiba Tranches 1-AB. | ||
(3) | As between lease payments and stipulated loss payments with respect to SD Tranches 1-AB, SD Tranche 1-C and Toshiba Tranches 1-AB, the amount equivalent to lease payment interest (each amount due under said Tranche, provided in Attachment 1, Paragraphs 3 1 (2), 2 (2), 3 (2), 5 (2) and 6 (2), and Attachment 1, Paragraphs 9 (3), (6), (9), (15) and (18) specified in the loan certificate for each individual transaction). | ||
(4) | Break funding cost regarding SD Tranches 1-AB, SD Tranche 1-C and Toshiba Tranches 1-AB. | ||
(5) | As between lease payments and stipulated loss payments with respect to SD Tranches 1-AB, SD Tranche 1-C and Toshiba Tranches 1-AB, the amount equivalent to the original principal of the lease payments (each amount due under the relevant Tranche, provided in Attachment 1, Paragraphs 3 1 (1), 3 (1), 3 (1), 5 (1) and 6 (1) and Attachment 1, Paragraphs 9 (1), (2), (4), (5), (7), (8), (13), (14), (16) and (17) specified in the loan certificate for each individual transaction), or amount equivalent to payments for exercise of purchase options or Return Adjustment Fees. | ||
(6) | Default interest on lease payment, stipulated loss payment, and payment for exercise of purchase options related to SD Tranche 2 and Toshiba Tranche 2. |
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(7) | As between lease payments and stipulated loss payments with respect to SD Tranche 2 and Toshiba Tranche 2, the amount equivalent to lease payment interest (each amount due under the relevant Tranche provided in Attachment 1, Paragraphs 3 4 (2) and 7 (2) and Attachment 1, Paragraphs 9 (12) and (21) specified in the loan certificate for each individual transaction). | ||
(8) | Break funding cost regarding SD Tranche 2 and Toshiba Tranche 2. | ||
(9) | As between lease payments and stipulated loss payments with respect to SD Tranche 2 and Toshiba Tranche 2, the amount equivalent to the original principal of lease payments (each amount due under the relevant Tranches provided in Attachment 1, Paragraphs 3 4 (1) and 7 (1) and Attachment 1, Paragraphs 9 (10), (11), (19) and (20) specified in the loan certificate for each individual transaction), or the amounts equivalent to the payments for exercise of purchase options. | ||
(10) | Other debts of Lessee pursuant to this Agreement that has become due. |
1 | Lessor shall lease the Property to Lessee on an as is basis, without warranty of any kind regarding the Property, whether express or implied, and shall not be liable for defects (provided however, excluding defects which arose due to the Lessors intentional acts or gross negligence) in the Property, whether apparent or hidden. Further, Lessor shall make no guarantee regarding existing obligations etc. (provided however, excluding obligations, etc. which arose due to the Lessors intentional acts or gross negligence) regarding the Property or its parts and shall not be liable for defects irrespective of whether the defects are known or not. | ||
2 | Lessee, assuming its own responsibility and at its own expense, shall acquire appropriate quality assurance from the manufacturer of the Property or its parts supplier, and at the same time make an arrangement for after-sale service and hereby assigns to Lessor (except where such assignment is prohibited) the rights regarding the Property, such as the right to claim damages and warranties (including the right to claim warranty against defects). However, Lessee may exercise the applicable right to claim damages and warranties in its own name, provided that no event of cancellation has occurred, and may directly receive the benefit of the execution of the right to claim damages and warranties during the lease period from a manufacturer of the Property or its parts suppliers. | ||
3 | In the event that Lessee suffers damage or a loss due to lack of performance by the Property, Lessee may, assuming its own responsibility and at its own expense, demand recovery of such damage or loss directly from a manufacturer of the Property or its parts |
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manufacturer under the right set forth in the provision of the previous paragraph, and Lessor shall not be responsible for this. However, Lessees obligations under Article 14 shall not be affected. |
1 | If an event of total loss occurs to all or any unit component of the Property (except where Lessor is responsible), Lessee shall immediately notify Lessor of such event and provide Lessor stipulated loss payment and other amounts of debts that are due with respect to the Property and its unit component as of the date it intends to make the relevant payment on the earlier date of the following dates: (a) 90th day since the occurrence of said event of total loss (except where Lessee is not responsible for the total loss event and Lessor and Lessee have otherwise agreed); or (b) the following bank business day after the day when an amount greater than the stipulated loss payments is paid as insurance coverage prescribed in Article 19. | ||
2 | When Lessee has paid the amount prescribed in the previous paragraph, Lessor shall assign Lessee the right to the Property or its unit component that suffered a total loss or the right to a third party acquired as a result of such total loss event (excluding the right to claim compensation for damages for which Lessor should be held liable) on an as is basis with respect to performance without the third party providing funds, credits or other type of guarantee. | ||
3 | In the event that Lessor has received compensation from a third party as a result of the occurrence of a total loss event with respect to the Property or its unit component (including, irrespective of characterization, an amount paid to compensate for loss and financial burdens due to the occurrence of such total loss event, but excluding the amount that Lessor should incur to compensate for damage) or received insurance coverage for the total loss, when Lessee has not met the payment date due under Paragraph 1 (irrespective of whether or not Lessee is aware that the payment date due under Paragraph 1 has arrived as a result of the payment of total loss insurance coverage ), the received amount shall be appropriated for payment of stipulated loss payment, and if there is a surplus after the appropriation, the surplus amount shall be immediately returned to Lessee upon subtracting unpaid amounts that Lessee owes Lessor under the related agreements (including late charges), and if there is still deficiency after such appropriation, Lessee shall not avoid payment of said deficient amount. Further, if Lessee has paid said stipulated loss payment at the time referenced above, Lessor shall immediately return the remaining balance of the received amount to Lessee upon |
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subtracting, if any, unpaid amounts due from Lessee due under the related agreements. | |||
4 | During the lease period, Lessee shall incur all the risk and relevant expenses related to a loss (including total loss events) or damage (in either case, except when Lessor is responsible) to the Property or its unit component. | ||
5 | In the event that a total loss event occurs to a unit component and Lessee has paid stipulated loss payment with respect to said component and paid other unpaid amounts with respect to such component or the total loss, said unit component shall be removed from transactions set forth in the related agreements, and Lessee shall be exempt from obligations to pay future lease payment with respect to said unit component part. | ||
6 | With respect to a unit component that Lessee reasonably determines, through Lessees consultation with a manufacturer or maintenance company of the Property after delivery of such component, that it does not meet Lessees required specification, a total loss event is deemed to have occurred immediately after delivery on the delivery date for reasons for which Lessee is not responsible, and the provisions of this Article shall apply accordingly. | ||
7 | In the event that a total loss event has occurred to the Property or its unit component part, or that Lessee judges that the Property or its unit component needs to be replaced for the purpose of doing business, Lessee may request replacement of the Property or its unit component, subject to consent by Lessor, the Borrower, the SD Receivables Assignee and the Lenders (Lessor, the Borrower, the SD Receivables Assignee or the Lenders may not refuse such consent without any rational reasons, which include the case where Lessor judges, at its own discretion, that the value of the Property or its unit component after replacement will decrease compared to the value before replacement (excluding a minor decrease)). Such replacement shall take place at the expense of Lessee if Lessor, the Borrower, SD Receivables Assignee and the Lenders agree on conditions with respect to a replacement property, its cost and other matters of consideration. Provided however, only where obtaining prior written consent is difficult due to the urgent need to replace the relevant property or unit component part with equivalent items, Lessee can request the consent ex post facto from Lessor, the Borrower, the SD Receivables Assignee and the Lenders regarding the replacement of the relevant property or unit component part. |
Lessee shall, on its own responsibility and at its own expense, in a manner clearly recognizable by a third party, place signs indicating Lessors ownership of the Property where the Property is located and on main unit components of the Property and certain unit components that Lessor requests. |
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Lessee shall, unless a cancellation event has occurred, have the quiet enjoyment of the Property, and Lessor shall not disturb such use by Lessee without valid reasons. |
1 | Lessee shall, on its own responsibility and at its own expense, install the Property in Toshiba Yokkaichi Factory in accordance with installation standards or methods provided by the manufacturers of the Property and regulatory authorities, and shall not change the installation location without prior consent of Lessor. If installation of the Property or its unit components takes place outside of Japan, in addition to prior consent of Lessor, the following must be observed: compliance outside of Japan of with the provisions of each Article of this Agreement regarding the Property or its unit components, no compromising of the rights of Lessor, the Borrower, the SD Receivables Assignee and the Lenders with respect to the Property and rights under the related agreements, and compliance with laws of Japan and the United States regarding export and re-export control. | ||
2 | Lessee shall comply with all applicable laws with respect to installation, use, operation and handling of the Property (including environmental laws), any request, conditions imposed and instructions provided by the manufacturers of the Property, parts suppliers and the insurers and agreements with such parties and, at the same time, shall use the Property only for legal purposes. | ||
3 | Lessee shall, on its own responsibility and at its own expense, keep and maintain records regarding use and operation of the Property. |
1 | Lessee shall not, without prior consent of Lessor, transfer the possession of the Property to a third party, or sublease the Property. However, Lessee may, on its own responsibility and at its own expense, without consent of Lessor, transfer the possession of the Property for maintenance or repair to a manufacturer of the Property or approved maintenance or repair provider, and sublease the Property to an SD Group company or a Toshiba Group company. | ||
2 | In the event that the transfer of possession or sublease is executed in accordance with the previous paragraph, the transfer of possession or sublease shall not affect Lessees obligations under this Agreement and shall be subject to the Agreements Articles, |
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survival and other provisions, and even if Lessee incurs taxes and public dues as a result of the transfer of possession or subleasing, there shall be no affect on the lease payment or other lease conditions under this Agreement. Further, Lessee shall, on its own responsibility and at its own expense, take all reasonable measures so that Lessor and the Lenders maintain security interests as before (not limited to those expressed in this Agreement). |
1 | Lessee shall, on its own responsibility and at its own expense, keep the Property in safe condition at all time. | ||
2 | Lessee shall, on its own responsibility and at its own expense, perform maintenance and management of the Property in accordance with provisions of law, perform maintenance and repair using a method approved or recommended by a manufacturer of the Property or a parts supplier and a similar method that Lessee has employed with respect to other similar properties and, in the meantime, retain the Property in the same condition at all time as the initial condition of the delivery date (excluding normal wear and tear). Under any circumstances, Lessee shall not perform acts that might cause a significant adverse effect to the manufacturers warranty of the Property. | ||
3 | Lessee shall, on its own responsibility and at its own expense, keep and maintain records regarding maintenance and repair of the Property, including maintenance log. | ||
4 | Lessee may, for the purpose of maintenance and repair provided in Paragraph 2, on its own responsibility and at its own expense, replace parts with substitutes that are similar in performance to the respective parts and owned by Lessee without any obligation to itself (excluding the waived obligations) or may install parts owned by Lessee without any obligation for itself (excluding the waived obligations) in the Property without replacing the parts of the Property. However, in either case, the replacement or installation shall not cause any changes that are reasonably expected to decrease performance etc. of the Property, or have adverse effect on its performance etc. | ||
5 | Lessee may, on its own responsibility and at its own expense, after delivery of the Property to Lessee in accordance with Article 4, remove, without installing substitutes, parts that are installed to the Property as an addition, not as a replacement of the parts, or the parts of which removal does not cause reduced performance etc. of the Property. |
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Lessee may, on its own responsibility and at its own expense, perform changes, alterations or additions to the Property that are considered necessary or desirable for operations so long as such act does not reduce or negatively affect performance of the Property. |
1 | Except for circumstances under Paragraph 2, parts that Lessee installed in the Property under Article 14, Paragraph 4, upon installation, shall comprise the Parts that constitute the Property and automatically belong to Lessor and be leased from Lessor to Lessee under this Agreement. With respect to parts that are removed from the Property, the ownership of the removed parts shall be transferred to Lessee while the ownership of the substitutes is transferred to Lessor. However, the parts that are exchanged and removed, though not replaced by similar substitutes, shall still be owned by Lessor regardless of their location and are subject to this Agreement. | ||
2 | Lessee may retain the ownership of parts that are installed to the Property, after the Property was delivered to Lessee under Article 4, as an addition, not as replacements, under Article 14, if removal of such parts from the Property is possible without compromising performance of the Property. Lessor may consider said parts in accordance with Article 26, Paragraph 3. |
Lessor and its designated parties may, upon prior notice to Lessee no less than 5 bank business days in advance, with respect to the Property or its parts, enter an office, factory or facility of Lessee or its installation location, or on a premise of Lessee and inspect the Property with respect to conditions, installation, use, operation, storage, maintenance and repair. However, when performing the applicable inspection, normal operations of Lessee or its installation location shall not be disturbed and, at the same time, reasonable confidentiality, safety, and security restrictions imposed by Lessee or its installation location shall apply. |
1 | Lessee shall not establish, approve, or cause to create any obligation to the Property and its parts, rights or benefits under this Agreement. Provided, however, such shall not apply to any obligation arising out of (a) rights of Lessor and Lessee provided in this Agreement, (b) retention rights or similar security rights of employees, maintenance providers and repair providers that arise during normal operations of Lessee, for which a payment due |
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date has not arrived and there is no risk of enforcement of obligations with respect to the Property, and (c) rights under the related agreements executed by Lessor, SD Receivables Assignee, the Lenders and their successor/s and assignee/s (including loan and security agreements ). |
2 | In the event that an obligation arises that is not excluded by the conditions stipulated in the previous paragraph, Lessee, on its own responsibility and at its own expense, shall remove the same in an appropriate method. |
1 | Lessee shall, on its own responsibility and at its own expense, personally, execute an insurance agreement to cover damage to and loss of the Property at all times during the lease period through the Guarantor, Toshiba Group companies or SD Group companies with an insurance company recognized by Lessor as internationally reliable. | ||
2 | Regarding insurance referred to in the previous paragraph, the amount of insurance shall be no less than the amount equivalent to 100% of stipulated loss payment as of the lease payment date immediately before the date of loss event. | ||
3 | Lessee shall, in the event that an event insured against, whether total or partial, occurs to the Property, promptly notify Lessor. | ||
4 | In the event that damage (partial loss) occurs to the Property, where restoration or repair of the Property is possible, Lessee shall receive the insurance money paid for such event. Upon receiving such insurance money, unless the damage has already been restored or repaired, Lessee shall apply the entire amount of the insurance money to restoration and repair of the Property. Further, in the event that a total loss event occurs, the provisions stipulated in Article 9 shall apply. | ||
5 | Prior to the date of transfer of the Property stipulated in Article 4 and at the start of each insurance coverage for the period for which insurance coverage is required pursuant to this Article (at least once a year), Lessee shall obtain documentation that proves the coverage that meets the above conditions from an insurance company prescribed in Paragraph 1 and deliver such document to Lessor. | ||
6 | Terms and conditions for insurance set forth in this Article shall, in all respects under any circumstances, not be less than insurance that covers property that is similar to the Property. In the event that terms and conditions of the insurance set forth in this Article become less than the terms and conditions of such other insurance, the terms and conditions of the insurance set forth in this Article shall be improved to the terms and conditions of such other insurance, and Lessee shall promptly conform to the improved terms and conditions. |
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1 | Lessee represents and warrants the following items as of the day of this Agreement: |
(1) | That Lessee has concluded the related agreements to which Lessee is a party, has capacity and authority by law and internal corporate rules and regulations of the company to exercise the rights and fulfill the obligations under the related agreements and has processed resolutions of the general meetings of shareholders and other measures necessary by law and internal corporate rules and regulations of the company for the approval of such related agreements and exercise of its own rights and fulfillment of its obligations. | ||
(2) | That preparation, delivery and execution by Lessee of the related agreements to which Lessee is a party does not, in any respects, violate laws, Lessees Articles of Association and other documents related to its organizations and provisions of agreements to which Lessee is a party. | ||
(3) | That the related agreements, to which Lessee is a party, are legal, effective and binding agreements against Lessee where implementation in accordance with each provision is possible. | ||
(4) | That preparation and delivery of the related agreements to which Lessee is a party, and performance or fulfillment by Lessee of each intended transaction thereunder do not require in any way approval and license by any government or other public office or court, notification to or registration with government or other public office or court, or other procedure, except for those already completed. | ||
(5) | That there is no pending judicial or administrative procedure in any way that would adversely affect execution of the rights or fulfillment of the obligations by Lessee with respect to the related agreements to which Lessee is a party. | ||
(6) | That Lessee has disclosed to Lessor, the Borrower, the SD Receivables Assignee and the Lenders business plans for the fiscal year during which the execution date of this Agreement falls within the scope determined by Lessees directors as reasonably necessary for implementation of this Agreement. | ||
(7) | To the extent of Lessees knowledge, no event of default has occurred. |
2 | Lessor represents and warrants the following items as of the execution date of this Agreement: |
(1) | That Lessor has concluded the related agreements to which Lessor is a party has capacity and authority by law and internal corporate rules and regulations of the |
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company to exercise the rights and fulfill the obligations under the related agreements and has processed passed resolutions of internal corporate meetings and other measures necessary by law and internal corporate rules and regulations of the company for the approval of such related agreements and exercise of its own rights and fulfillment of its obligations. | |||
(2) | That preparation, delivery and execution by Lessor of the related agreements to which Lessor is a party does not, in any respects, violate laws, Lessors Articles of Association and other documents related to its organizations, and provisions of agreements to which Lessor is a party. | ||
(3) | That the related agreements, to which Lessor is a party, are legal, effective and binding agreements against Lessor where implementation in accordance with each provision is possible. | ||
(4) | That preparation and delivery of the related agreements to which Lessor is a party, and performance or fulfillment by Lessor of each intended transaction thereunder do not require in any way approval and license by government or other public office or court, notification to or registration with any government or other public office or court, or other procedure, except for those already completed. | ||
(5) | That there is no pending judicial or administrative procedure in any way that would adversely affect execution of rights or fulfillment of obligations by Lessor with respect to the related agreements to which Lessor is a party. |
3 | Representations and warranties of each item in the previous two paragraphs shall be deemed to be repeated by Lessee and Lessor on the delivery date of each individual transaction and each lease payment date under the circumstances existing on those days. Provided however, in relation to item 1 (7), where the event of default is cured within the cure period prescribed in each of the sub-paragraphs in Article 26, Paragraph 1, and did not become a termination event, such shall be deemed not in violation of this Article and Lessee shall not be responsible for damages and other liabilities. |
1 | Lessee shall make the following commitments to Lessor: |
(1) | Lessee shall manage in accordance with Article 10 during the lease period the Property, its unit components and its parts distinctly from other properties. | ||
(2) | Lessee shall fulfill and comply with Lessees obligations pursuant to the provisions stipulated in the related agreements (including the Original Purchase Agreements to the extent related to this Agreement). |
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(3) | In the event that a cause for default or cause that may have a significantly adverse effect on Lessors full rights under the related agreements or fulfillment of Lessees obligations thereunder arises, Lessee shall notify Lessor to that effect promptly after learning of the occurrence of such events. | ||
(4) | As regards to the related agreements, Lessee shall acquire each consent, permission, approval, license or acceptance from any government or other public office or court that such government or public office or court requires Lessee to acquire in order to continue essentially the same business operations as the present, shall maintain its effect, and also shall abide by all conditions or restrictions imposed thereby. | ||
(5) | Lessee shall provide Lessor, the SD Receivables Assignee and the Lenders, upon reasonable request by Lessor with information regarding the financial circumstances and business conditions of Lessor and the Guarantors as Lessor reasonably requests, including financial statements for which Lessee or the Guarantor has no specific confidentiality obligation, and information regarding installation, condition, storage, use, maintenance and repair of the Property after the end of a fiscal year (however, with respect to the Guarantor, at the end of its half year period and fiscal year). | ||
(6) | Lessee shall perform all acts that Lessor reasonably requests as necessary for establishment, transfer or formation of rights or fulfillment of perfection, to the extent that such act is recognized and intended by the related agreements and within the limitations provided thereunder. | ||
(7) | Lessee shall, for each fiscal year, report promptly after the end of each fiscal year to Lessor progress status of business plans of the fiscal years that are reasonably recognized by Lessees directors as necessary for implementation of this Agreement. | ||
(8) | If Lessor reasonably demands, Lessee shall cooperate with Lessor, the SD Receivables Assignee and the Lenders to achieve objectives of the related contracts. | ||
(9) | Lessee and the Guarantor shall handle, at their own discretion and responsibility, accounting and financial matters of Lessee and the Guarantor with respect to the transaction under this Agreement and its related agreements. | ||
(10) | Lessee shall ensure that the Guarantor makes no significant changes to the FLASH PARTNERS MASTER AGREEMENT executed between the Guarantor and SanDisk International Limited on September 10, 2004. Provided, however, that this shall not apply in the event that the Lessor, the SD Receivables Assignee and the Lenders agree otherwise. | ||
(11) | Lessee shall cause SanDisk to abide by the following provisions. Provided, however, that this shall not apply in the event that the Lessor, the SD Receivables Assignee and the Lenders agree otherwise as to (1) and (3) below. |
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(1) | SanDisk shall maintain a long-term debt rating by Standard & Poors Rating Services or Moodys Investors Service at BB-, Ba3 or above respectively. | ||
(2) | SanDisk shall undertake that no lien shall be attached to any SanDisk assets without prior written approval by Lessor. Provided, however, that this shall exclude cases involving normal securitization transactions regarding loan or inventory or any of the permitted liens listed in Attachment 3 below (Permitted Liens). | ||
(3) | SanDisk shall maintain the amount of equity (Total Stockholders Equity) indicated in consolidated balance sheet as of the end of each accounting term and mid accounting term of each fiscal year at no less than 1,514 million US dollars until the termination of this Agreement and completion of fulfillment of all of Lessees and SanDisks obligations to Lessor under this Agreement. |
2. | Lessor shall promptly submit to Lessee copies of notices, requests, demands, waivers, acceptances, consents, or other communications between the Lenders and the SD Receivables Assignee which has legal effects under the related agreements. |
1 | Lessee shall, except as otherwise provided in this Article, be responsible and indemnify for all obligations and loss etc. related to expenses that arise from ownership, possession, use, application, operation, lease, sublease, installation, storage, maintenance, repair, improvement, modification, insurance, obligations etc., delivery, purchase, transfer, return, performance etc., structure, design, specification, functions, durability, operability, manufacture of the Property, unit component or its parts and/or payments due under the related agreements (except payment of property purchase price under the Sale and Purchase Agreement and payment of principal and interest under the Loan Agreement), taxes and public duties imposed on all or any of persons to be indemnified in direct or indirect relation to any of the subject transactions, and loss etc. to be incurred by all or any of persons to be indemnified and, if there is an instruction from the persons to be indemnified, directly pay to the authorities or a third party. However, Lessee shall have no obligation of indemnity or payment stipulated under this paragraph for either taxes or public duties imposed with respect to net profit of the persons to be indemnified or taxes or public duties imposed based on or in respect of net profit, or taxes and public duties otherwise provided in this paragraph. |
2 | In respect of the expenses for preparation, drafting and execution of the related |
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agreements, each party shall pay its own attorneys fee. | |||
3 | Expenses arising from fulfillment of obligations and transactions under the related agreements shall be determined by the express provisions thereof and by the following: |
(1) | Lessee shall bear the bank fees with respect to payments etc. stipulated in Article 7. | ||
(2) | Lessee shall bear the expenses including attorneys fees with respect to Lessee exercising purchase options or returning the Property. | ||
(3) | Expenses including attorneys fees that arise from default under this Agreement by any of parties involved shall be incurred by the defaulting party. |
4 | Taxes and public duties with respect to the related agreements shall be determined by the express provisions thereof and by the following. |
(1) | Except as otherwise agreed by and between parties to this Agreement, with respect to consumption tax imposed on payment of sales and purchase price and lease payments for the Property due under the related agreements (including the fixed property tax provided in sub-paragraph (2)), the parties involved that make these payments shall pay the amount of consumption tax to the receiving parties along with these payments. Provided, however, this shall not apply in the case that any of the parties to this Agreement may be exempt from consumption tax under the provisions of consumption tax law. | ||
(2) | If payment of Fixed property tax imposed on the Property is payable by Lessor, Lessee shall pay Lessor the amount equivalent to the fixed property tax. |
5 | Taxes and public duties that Lessee indemnifies or pays those persons to be indemnified under this Article shall be based upon net amount after tax. | ||
6 | If the loan interest rate is increased based on each Subject Borrowing Contract (including where the subsidy becomes unavailable in whole or in part to the SD Lender B or the Toshiba Lender B pursuant to the provisions of the summary for subsidizing business expenses for promotion of special loans for the advancement of areas having power plants (enacted on January 14, 1991, Agency for Natural Resources and Energy 2, No. 14534)), or each Borrower is charged with additional costs in accordance with each Loan Agreement, Lessor may, upon written notice, based on charges from each Borrower, increase the lease payment applicable to SD Tranches 1-A or SD Tranche 1-B, or Toshiba Tranche 1-A or Toshiba Tranche 1-B based on reasonable calculation method or may demand payment of the relevant additional expense to Lessee. In such case, each amount of the applicable purchase option exercise cost, Return Adjustment Fee, repayment standard fee and stipulated damages shall also be recalculated. Further, if the SD Receivables Assignee is charged with additional expense, Lessor may, upon demand by |
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the SD Receivables Assignee, by written notice, increase the lease payment applicable to SD Tranche 1-C based on reasonable calculation method, or may demand payment of the relevant additional costs to Lessee. In such case, each amount of the applicable payment for the exercise of purchase options, Return Adjustment Fee, repayment standard fee and stipulated loss payment shall be recalculated as well. | |||
7 | In the event that taxes and public duties and other expenses to be incurred by Lessee pursuant to the related agreements are charged to Lessor or paid in advance by Lessor, Lessee shall immediately pay Lessor, upon request by Lessor, the amount of the relevant payment and interest calculated from the payment date in accordance with provisions of Article 27. Provided, however, Lessor shall immediately notify Lessee with proof of advance payment if Lessor is charged with such taxes and public duties and other expenses, or has paid such amount. |
1 | Lessee and Lessor shall perform the first individual transaction in the period starting [ * ] and ending [ * ], and thereafter may execute up to [ * ] transactions (total of 5 transactions) until [ * ]. | ||
2 | Lessee and Lessor may, if prior written approval of the Lender, the Borrower and the SD Receivables Assignee are obtained, change the execution period of individual transactions and the number of individual transactions provided in the previous paragraph, and in this case Lessee and Lessor shall, if a change is needed regarding terms and conditions of payment, including lease payment, stipulated loss payment, payment for exercise of purchase option payments and Return Adjustment Fee, discuss such changes. |
1 | Lessee may, for each individual transaction, by notifying Lessor no less than 30 days in advance of each lease payment date, purchase all of the Property or any unit component (provided, however, exercise of purchase options for any unit component shall be in accordance with the provisions in Paragraph 4 below) by paying Lessor the relevant |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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payment for exercise of purchase option and the other amounts that are due with respect to the Property or said unit component as of said lease payment date (provided, however, for each individual transaction on the final lease payment date, whether or not there is notification from Lessee, unless the leased item is returned pursuant to Article 25, the purchase options shall be deemed to have been exercised). Notice of exercise of purchase options under this paragraph shall not be withdrawn. | |||
2 | If Lessee exercises purchase options stipulated in the previous paragraph and has paid the amount as prescribed in the previous paragraph, Lessors ownership and any other rights with respect to such Property or its unit component shall be transferred to Lessee on an as is basis without warranty and others at the time of completion of its payment. Provided, however, Lessor shall warrant to Lessee that no obligations etc. with respect to the Property or its unit component that arise from causes created by Lessor or attributable to Lessor exist at the time of such transfer. | ||
3 | Lessor shall immediately deliver a certificate of transfer provided in Attachment 6 to Lessee when receiving the amount as prescribed in Paragraph 1 has been paid. | ||
4 | Exercise of purchase options with respect to some unit components and not the entire Property may be allowed only if the total amount of property purchase cost of said unit component that Lessee is to purchase on a lease payment date pursuant to this Article exceeds [ * ] Yen and Lessors consent is obtained (Lessor may not reject such consent without any rational reasons, which include the case that Lessor determines, at its own discretion, that the relative value of the remaining Property against payment for exercise of purchase options of the Property after the purchase of said unit component is less than that of the Property before such purchase.) Further, of the payment for exercise of purchase options, the maximum amount that is appropriated to the original principal of each of SD Tranches 1-AB, SD Tranche 1-C and Toshiba Tranches 1-AB shall be the amount calculated by multiplying a property purchase cost of said unit component by rates provided in the stipulated loss payments column (A), (B), (C), (E) and (F) of a loan certificate. | ||
5 | Lessee shall incur all expenses regarding exercise of purchase options by Lessee. |
1 | Lessee, in accordance with the following provisions, for each individual transaction, |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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return to Lessor all unit components that are subject to said individual transaction at the location designated by Lessor on the lease payment date immediately preceding the first anniversary of the delivery date within the lease period, and on each anniversary date of the relevant lease payment dates (hereinafter referred to as return date) by notifying Lessor and the Lenders no less than [ * ] days in advance. In such case, Lessor must specify Lessee the return location or the storage location of the relevant unit component part (including the location of all unit component parts at the time specified) [ * ] days before the return date. Provided, however, if any of reasons for cancellation or default (including reasons for cancellation and for default with respect to provisions regarding return in this Article) has occurred on such return date, or purchase by exercising purchase options pursuant to Article 24 takes place on the same day as the return date, Lessee may not return the Property under this Article. Notification of exercise of return options pursuant to this Article may be withdrawn until [ * ] days before such return date by obtaining prior written consent from Lessor. |
(1) | When Lessee returns the Property to Lessor pursuant to this Article, the Property shall be in a good condition as at the time of delivery in Article 4, its normal use is possible, and that Lessor can determine that all of the requirements for conditions at the time of return of the Property prescribed in Attachment 7 are met, except for normal wear and tear and changes etc. performed in accordance with provisions of Article 14, Paragraph 4 or 5, or Article 15. | ||
(2) | Lessee shall deliver, with return of the Property to Lessor, in addition to a maintenance and repair log of the Property, all records or copy thereof of installation, storage, use, operation, maintenance and repair of the Property and, if Lessor requests, a certificate by the Property manufacturer, the Property parts supplier or a property maintenance and repair provider approved by the property manufacturer that certifies the items provided in Item (1) of this paragraph. | ||
(3) | Lessee shall approve that Lessor, the Lenders or a party that is to become a buyer of the Property that Lessor has designated (and related parties thereof) enters the office and factory of Lessee or its installation location to inspect the Property prior to return of the Property in accordance with Article 17. | ||
(4) | Lessee shall, on the return date, with return of the Property, pay Lessor the Return Adjustment Fee for retuning the Property as of the return date and other amounts due under the related agreements. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(5) | If Lessor incurs a debt against Lessee under the related agreements on the return date, Lessor shall, on the return date, upon return of the Property, pay Lessee the relevant amount which relates to returned Property. | ||
(6) | Return of the Property under this Article shall be allowed only with respect to all unit components subject to the relevant individual transaction, and shall not be allowed with respect to only some unit components. | ||
(7) | Lessee shall, in electing return under this Article, upon discussion with Lessor, work to offer a third party who purchases the Property with purchase conditions with which Lessor is objectively satisfied. Provided, however, this shall not apply in the case where the Property or any of its unit components is discarded in accordance with Paragraph 4. |
2 | Lessor shall, when receiving the returned Property, prepare a certificate of return as provided in Attachment 5 and immediately delivery it to Lessee. | ||
3 | Lessee shall, if requested by Lessor, on its own responsibility and at its own expense, hold in trust the Property for Lessor for maximum of [ * ] after the return date, and shall perform maintenance management, inspection and maintenance in accordance with this Agreement in order to maintain the same level of performance etc. as on the delivery date by the Property at all times, and if the Property is damaged, regardless of the cause, shall restore it to its original condition. | ||
4 | Notwithstanding the provisions of Paragraph 1, Lessor may request Lessee to dispose all or a part of unit components that constitute the Property before the return date. In this case, Lessee shall, upon delivery of acknowledgement to Lessor, on its own responsibility and at its own expense, immediately dispose of the requested unit components within Japan. Lessee shall, for such disposition, comply with the applicable laws (including environmental laws). Provided, however, if Lessor needs to dispose on its own behalf, Lessee shall bear such cost and provide necessary support. In any event, Lessor may request Lessee to provide documentation that confirms disposition or any related documents, or copies thereof. | ||
5 | Lessee shall incur maintenance expense, removal expense, transport expense, storage expense in item 3, resale expense and all other expenses. Provided however, the amounts to be borne by Lessee shall be limited to the expenses stated in the previous paragraph. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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6 | If Lessor sells the Property to a third party within [ * ] of return of the Property by Lessee to Lessor under this Article, and if the net amount after deducting taxes and public dues, sales fee, resale expenses and any other expenses which Lessor incurs from the received amount of the sales proceeds exceeds the Return Adjustment Fee of the Property as of the return date, Lessor shall 1 return the resale expenses borne by Lessee and 2 if there remains further balance after such return pay Lessee the amount equivalent to [ * ]% thereof. Lessee shall incur taxes and public duties charged on such payment. | ||
7 | In disposing Property that is returned pursuant to this Article, conditions and methods etc. of disposition shall be determined by discussion with SD Lessor RA and Toshiba Lessor RA. Provided however, in the case of disposition of such Property under terms of sale and method which recovers an amount less than the amount equivalent to the repayment standard fee, consent from both SD Lessor RA and Toshiba Lessor RA shall be required. | ||
8 | All actions conducted pursuant to this Article and Attachment 7 in Lessees and the office, factory or facilities of the installation location and within the facilities of the installation location shall be in accordance with the conditions and restrictions stated in Article 17. |
1 | Lessor may, upon the occurrence of any one of the following events, with only written notice without formal demand, accelerate all payments owing by Lessee under this Agreement or any or all of the individual transactions and terminate this Agreement or any or all of the individual transactions. |
(1) | If Lessee defaults a lease payment, purchase option exercise cost, Return Adjustment Fee and stipulated damages under the relevant agreements for 2 bank business days or more or if Lessee defaults payment of lease payment and payment for other debts due under the related agreements and does not make the relevant payments within 2 bank business days of receipt of written notice to that effect from Lessor. Lessor shall notify Lessee by the next succeeding day of the scheduled date of receipt if there is delay in the receipt of lease payment and other monetary obligations under the related agreements from Lessee. | ||
(2) | If Lessee neglects to obtain and keep required insurance in accordance with this Agreement. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(3) | If Lessee neglects to remove obligations etc. in accordance with this Agreement, and Lessee fails to eliminate within 5 bank business days after receipt of written notice from Lessor of such event. | ||
(4) | If Lessee violates the provisions of the related agreements, in addition to the previous Item, and does not correct the relevant violations within 10 bank business days of receipt of written notice to that effect from Lessor. | ||
(5) | If Lessee or a Guarantor is subject to compulsory execution, petition for auction or disposition for failure to pay taxes and public duties, or petition for the commencement of bankruptcy proceedings (including petition for similar procedures or dispositions under foreign law). Provided, however, except where the relevant petition or disposition is cancelled or dissolved within 30 days. | ||
(6) | If Lessee or a Guarantor starts private dissolution, passes a resolution to liquidate or dissolve all or the major part of the business operation (provided, however, except in the case of corporate reorganization that does not follow a procedure provided in Item (5) for Lessee or the Guarantor, and Lessor, the Borrower, the SD Receivables Assignee and the Lenders have consented thereto), or receives an order of business suspension of all or major part of business or operation or other discontinuance of all or major part of business or operation from a public office (It shall be considered to fall under this Item (6) if operation of the Property by Lessee has ceased for more than 2 months and without any prospect for resumption). | ||
(7) | If Lessee or a Guarantor transfers all or major part of its business. Provided, however, except in the case of corporate reorganization that does not follow a procedure of Item (5) for Lessee or the Guarantor, and Lessor, the Borrower, the SD Receivables Assignee, the Lenders have consented thereto. | ||
(8) | If Lessee or a Guarantor stops payment or suffers suspension by a bill clearing house. | ||
(9) | If the direct or indirect rate of equity participation by each Guarantor with respect to Lessee changes. Provided, however, except where Lessor, the Borrower, the SD Receivables Assignee and the Lenders otherwise have consented thereto. | ||
(10) | If the FLASH PARTNERS MASTER AGREEMENT executed between Toshiba Corporation, SanDisk Corporation and SanDisk International Limited on September 10, 2004 is cancelled, dissolved, or terminated. | ||
(11) | If (i) Lessee or a Guarantor suffers acceleration with respect to debt greater than 20 million US dollars arising from a default of monetary obligations (including where monetary obligations of Lessee or a Guarantor that is greater than 20 million US dollars and which did not arise from a default of monetary obligations is accelerated, |
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and the relevant monetary obligation is not repaid by Lessee or Guarantor within the period scheduled by the agreement regarding the relevant monetary obligations (including any periods necessary for the procedures for repayment if such procedures are set forth in the agreement) or within a reasonable period if no such period is scheduled in such agreement), or (ii) Lessee or a Guarantor suffers acceleration with respect to monetary obligations greater than 100 million US. Provided, however, this shall exclude cases where it is determined that the creditor has consented or agreed to the delay (including implied consents pursuant to commercial practices) or cases where Lessee or the Guarantor is disputing the relevant obligation and has not yet been legally settled. | |||
(12) | If the amount of equity (Total Stockholders Equity) in consolidated the balance sheet as of the last of accounting term and mid accounting term of each fiscal year of SanDisk becomes less than 1,514 million US dollars. | ||
(13) | If a long-term debt rating of SanDisk by Standard & Poors Rating Services or Moodys Investors Service is decreased to below BB- or Ba3, respectively |
2 | If this Agreement is terminated under the previous paragraph, Lessee shall return the Property to Lessor on the date specified by Lessor for termination (hereinafter referred to as termination date), and pay all amounts due that have not been paid as of the termination date, including unpaid lease payments due to be paid on a lease payment date before the termination date and late charges thereof and stipulated loss payment as of the termination date as provided in Attachment 1, Paragraph 9. | ||
3 | In the event that this Agreement is terminated in accordance with Paragraph 1, Lessor shall, following its selection, liquidate all or a portion of debts of the previous paragraph by method provided in each of the following Items. |
(1) | Upon disposing of the Property by sale under sales conditions determined at its own discretion, the amount equivalent to the amount of such net sales proceeds from which expenses have been deducted is less than the amounts owing under the previous paragraph. | ||
(2) | Upon appraising fair market price of the Property, the amount equivalent to such appraisal amount from which expenses are deducted is less than the amounts owning under the previous paragraph. |
In addition, of the amounts owing under the previous paragraph, Lessee shall not avoid liability for any of such amount remaining after such liquidation. Lessor shall immediately return to Lessee the remaining balance after the total amounts owing under the previous paragraph is satisfied by such liquidation. |
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4 | When Lessee returns the Property pursuant to Paragraph 2, conditions of the Property, method of return and others shall be determined by the provisions of Article 25, unless otherwise provided in this Article. | ||
5 | Notwithstanding the provisions of each of the previous paragraphs, Lessee may, until Lessor disposes of the Property or its unit components by sale in accordance with Paragraph 3, purchase the Property or its unit component that have not been sold by paying to Lessor stipulated loss payment with respect to the Property or unit component as of the termination date, unpaid lease payments and other amounts that Lessee is required to pay to Lessor under Paragraph 2 (including late charges) (provided, however, except for a case of purchasing the entire Property, this may be approved only when Lessors consent is provided ). If Lessee purchases the Property or its unit component by making such payment to Lessor, Lessor shall transfer title to the Property or its unit component to Lessee on an as is basis without warranty. (Provided however, where there exists burden etc. created by the relevant agreements or arising from events attributable to either of Lessor, SD Receivables Assignee, the Lenders and their respective successors and permitted assigns in relation to such property or unit component part, Lessor shall eliminate at the Lessors expense.) Such transfer shall be pursuant to provisions of certificate of transfer in the form provided in Attachment 6. | ||
6 | Lessor may, in relation to the termination events set forth in each of the sub-paragraphs of paragraph 1, seek injunction of defaults or specific performance, claims for compensation regarding losses or liability suffered by Lessor, and any other remedies recognized by law. | ||
7 | In the event that any reason for termination set forth in Paragraph 1 (12) or (13) occurs, that termination event shall be deemed not to have occurred if SanDisk, the all SD Lessors, SD Receivables Assignee and all SD Lenders have agreed, within 30 days of the date the occurrence of such event has become known, on the supplementary security to be supplied by SanDisk, or if they have agreed on the amount of lease and stipulated loss payment pursuant to this Agreement and on revision of the spread used to calculate the interest rate pursuant to the Loan Agreement. | ||
8 | Lessee may, in the event that any reason for termination provided in each Item of Paragraph 1 occurs, (excluding where termination events set forth in sub-paragraphs (9), (10), (12) and (13) has occurred in respect of the Guarantors) by obtaining prior written consent of Lessor or the Lenders within 30 days of the date the occurrence of such event has become known, transfer the status of Lessee under this Agreement and its related agreements to both or either of the Guarantors. In such case, the relevant reason for termination is cured and shall be deemed to not have occurred. |
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9 | In the event that a reason for termination provided in Paragraph 1 (5) through (8) and (10) through (13) occurs for either Guarantor, the other Guarantor may succeed the status of Guarantor within 30 days of the date of the occurrence of said event if such other Guarantor delivers a guarantee or security acceptable to Lessor, SD Receivables Assignee and the Lenders, then in such case, such termination event shall be deemed not to have occurred. | ||
10 | If there is significant cause, objectively and reasonably recognized, whereby voluntary and smooth performance of the obligations due under this Agreement becomes difficult due to a material change in conditions regarding assets and creditworthiness of Lessee or a Guarantor other than the events set forth in each sub-paragraphs of paragraph 1, Lessor shall notify Lessee to such effect and consult with Lessee regarding countermeasures. |
If Lessee defaults in the payment of money to Lessor under this Agreement, Lessee shall pay (a) for each Tranche other than SD Tranche 1-B and Toshiba Tranche 1-B, late charges at the interest rate of [ * ]% per annum (on a prorated daily basis with 1 year as 360 days) and (b) for SD Tranche 1-B and Toshiba Tranche 1-B, late charges at the rate of [ * ]% annual interest (on a prorated daily basis with 1 year as 365 days), for the period from the due date to the actual date of payment. |
Lessee and Lessor shall not, without obtaining prior written approval of the other party, transfer to a third party the right of use of the Property and rights and obligations under this Agreement, or give the same as security. Provided, however, except for the following cases: |
(1) | For each individual transaction, SD Lessor may transfer to the SD Borrower under the SD Sale and Purchase Agreement regarding Receivables any and all obligations related to the lease payments, stipulated loss payments, payments for purchase options, exercise, Return Adjustment Fees, break funding costs, late charges, and any other amounts related to SD Tranches 1-AB. | ||
(2) | For each individual transaction, SD Lessor may transfer to the SD Receivables |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Assignee under the SD Receivables Assignment Agreement any and all obligations related to the lease payments, stipulated loss payments, payments for purchase options exercise, Return Adjustment Fees, break funding costs, late charges, and any other amounts related to SD Tranche 1-C. | |||
(3) | For each individual transaction, Toshiba Lessor may transfer to Toshiba Borrower under Toshiba Sale and Purchase Agreement regarding Receivables any and all obligations related to the lease payments, stipulated loss payments, payments for purchase options exercise, Return Adjustment Fees, break funding costs, late charges, and any other amounts related to Toshiba Tranches 1-AB. | ||
(4) | For each individual transaction, the SD Borrower may, as security for the SD Loan Agreement for the SD Lenders, transfer the assigned obligations of Paragraph 1 under the SD Agreement on Security Assignment regarding Claims. | ||
(5) | For each individual transaction, the Toshiba Borrower may, as security for the Toshiba Loan Agreement for the Toshiba Lenders, transfer the assigned obligations of Paragraph 3 under the Toshiba Agreement on Security Assignment regarding Claims. | ||
(6) | For each individual transaction, Lessor may, as security for the Loan Agreement for the Lenders, assign the Property under the Master Agreement on Commitment for Security Assignment regarding Claims. |
Lessee shall hereby approve such transfers of the obligations and the establishment of security rights/liens and shall cooperate with Lessor in preparation and delivery of documents requested by Lessor. In addition, Lessee and SD Lessor shall approve the exercise of the SD Lessors rights provided in this Agreement to the extent necessary for performance of assigned obligations the SD Borrower and the SD Receivables Assignee acquired pursuant to the SD Sale and Purchase Agreement regarding Receivables or the SD Receivables Assignment Agreement, and Lessee and the Toshiba Lessor shall approve the exercise of Toshiba Lessors rights provided in this Agreement to the extent necessary for performance of the assigned obligations that the Toshiba Borrower has acquired under the Toshiba Sale and Purchase Agreement regarding Receivables. |
1 | Except as provided in Paragraph 3 of this Article, performance of monetary obligations that Lessee owes to the SD Lessor under this Agreement shall be recoverable against only the following money and other assets (hereinafter referred to as SD recourse property), and Lessee shall not be responsible for default by any parties to the related agreements |
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other than itself or price fluctuations or any inability to dispose of the Property. Except in respect of the SD recourse property, the SD Lessor shall not file petition for attachment, provisional attachment or other compulsory procedures, or protective orders against Lessees assets, and shall not seek bankruptcy procedures against Lessee. |
(1) | Amounts equal to lease payment, stipulated loss payment, Return Adjustment Fee, payment for exercise of purchase options, break funding costs and late charges related to each SD Tranche and other monies related to each SD Tranche under the Master Lease Agreement. | ||
(2) | Monetary amounts that the SD Lessor may claim pursuant to the SD Guarantee Agreement with respect to the rights related to the monies stipulated in the previous Item. | ||
(3) | The SD Lessors shared equity of the Property. | ||
(4) | Amounts that the SD Lessor receives as a result of exercise or execution of rights under the related agreements (irrespective of compulsory or voluntary procedures). |
2 | Except as provided in Paragraph 3 of this Article, performance of monetary obligations that Lessee owes to the Toshiba Lessor under this Agreement shall be recoverable against only the following money and other assets (hereinafter referred to as Toshiba recourse property) and Lessee shall not be responsible for default by any parties to the related agreements other than itself, price fluctuations or any inability to dispose of the Property. Except in respect of the Toshiba recourse property, the Toshiba Lessor shall not file petition for attachment, provisional attachment or other compulsory procedures, or protective orders against Lessees assets, and shall not seek bankruptcy procedures against Lessee. |
(1) | Amounts equal to lease payment, stipulated loss payment, Return Adjustment Fee, payments for exercise of purchase options, break funding costs and late charges related to each Toshiba Tranche and other monies related to each Toshiba Tranche 1 under the Master Lease Agreement.. | ||
(2) | Monetary amounts that the Toshiba Lessor may claim pursuant to the Toshiba Guarantee Agreement with respect to the rights related to the monies stipulated in the previous Item. | ||
(3) | The Toshiba Lessors shared equity of the Property. | ||
(4) | Amounts that the Toshiba Lessor receives as a result of exercise or execution of rights under the related agreements (irrespective of compulsory or voluntary procedures). |
3 | Notwithstanding the provisions of the previous two paragraphs, Lessee shall not be |
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exempt from liability and shall owe absolute obligations and responsibility to Lessor under the Master Lease Agreement or its related agreements with respect to loss, damage, expenses and cost Lessor incurs or suffers pursuant to the intentional actions or gross negligence of Lessee and in that case the provisions of the previous two paragraphs shall not apply. Further, this paragraph shall not extend to the other Tranches the several obligations for each Tranche of the respective Guarantor under the Guarantee Agreements. | |||
4 | The provisions of Paragraph 1 and Paragraph 2 shall only restrict sources of payment with respect to payment of monetary obligations provided in the same paragraphs, and shall not affect the existence of such debts or reduce such debts, nor restrict exercise of Lessors rights under the related agreements or security rights/liens held by Lessor. |
All written notices necessary under this Agreement shall be sent by postal mail, personal delivery, E-mail or facsimile transmission to the notified parties provided on Attachment 8. |
Where the SD Lessor or the Toshiba Lessor are expected to express its intent or notify facts as a whole, each SD Lessor shall express its intent or notify and receive facts through the SD Lessor Agent and each Toshiba Lessor do the same through the Toshiba Lessor Agent. |
This Agreement shall not be modified or amended without written consent of all parties concerned. |
1 | Each party to this Agreement shall pledge to keep strictly confidential contents of this Agreement and its related agreements and information or documents received through negotiations thereon in accordance with the provisions thereof for [ * ] years from the day of execution of this Agreement. Provided, however, except as in the case of disclosure of information or documents that are already publicly known, disclosure that accompanies |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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marketing of the Property, disclosure that is necessary for exercise of rights or fulfillment of obligations under the related agreements, and disclosure at the request of tax authorities and other related authorities or disclosure due to prior consent of all parties to this Agreement. | |||
2 | Period of confidentiality provided in the previous paragraph shall be automatically renewed for [ * ] year, unless there is notice of cancellation of confidentiality from Lessee, and the same shall apply thereafter. Provided, however, Lessor may request confirmation from Lessee with respect to the extension of period of confidentiality at the [ * ] year or at the end of an extended period. | ||
3 | In the event that a party to this Agreement infringes the obligations of Paragraph 1, said party shall compensate economic damages incurred by other parties. |
This Agreement shall be in every respect governed by, and construed in accordance with, the laws of Japan. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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1 | Designation of scheduled delivery day, the last possible date for delivery and of Property |
Lessee shall designate the unit components with serial numbers, etc. for the purpose of objective identification and a delivery date that falls on a business day [ * ] on [ * ], to [ * ] which Lessee notifies to Lessor 20 days to the delivery date (provided, however, that for the first transaction, Lessee and Lessor have agreed otherwise) as a delivery date for each individual transaction and the last delivery date during this period as the last delivery date under this Agreement. Lessee and Lessor shall conduct the first individual transaction during the period from [ * ] through [ * ], and thereafter may execute up to [ * ] transactions (total 5 transactions) until [ * ]. Provided, however, that Lessee and Lessor may change the period mentioned above and the number of transactions to be implemented pursuant to Article 23. |
2 | Lease period | |
For each individual transaction, the period up to the date specified by Lessee which shall be either March 10 or September 10 falling within the period up to the fourth or fifth anniversary date from the delivery date described in the related request for lease and approval (including the delivery date). | ||
3 | Calculation of lease payments | |
The total amount of the following SD Tranches 1-A, SD Tranche 1-B, SD Tranche 1-C, SD Tranche 2, Toshiba Tranche 1-A, Toshiba Tranche 1-B and Toshiba Tranche 2. |
(1) | (SD Tranche 1-A) | |||
For each lease payment calculation period, the total sum of (1) property purchase price for the Property in each individual transaction multiplied by the ratio in the following (A); and (2) the interest amount calculated pursuant to the following Paragraph 9 (1) as of the lease payment date with respect to the lease payment calculation period immediately |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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prior to the relevant lease payment calculation period (in the event that the prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of Euro Yen TIBOR (as defined below) with respect to the first date through the last date of the lease payment calculation period plus annual percentage rate of [ * ]% from the first date to the last date of the relevant lease payment calculation period (calculated on a pro rate basis with 360 days a year). | |||
(2) | (SD Tranche 1-B) | ||
For each lease payment calculation period, the total sum of (1) the amount obtained by multiplying the purchase price of the Property in each individual transaction by the ratio in the following (B); and (2) the interest amount calculated pursuant to the following Paragraph 9 (4) as of the lease payment date with respect to the lease payment calculation period immediately prior to the relevant lease payment calculation period (in the event that the immediately prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of standard fixed interest rate (as defined below) plus annual percentage rate of [ * ]% from the first date through the last date of the lease payment calculation period (calculated on a pro rate basis with 365 days a year). In addition, if the SD Borrower B (as defined in the SD Loan Agreement) receives the amount equivalent to subsidy as prescribed in Article 7, Paragraph 3 of the SD Loan Agreement, the amount equivalent to the relevant subsidy shall be deducted from the above total amount. | |||
(3) | (SD Tranche 1-C) | ||
For each lease payment calculation period, the total sum of (1) property purchase price for the Property in each individual transaction multiplied by the ratio in the following (C); and (2) the interest amount calculated pursuant to the following Paragraph 9 (7) as of the lease payment date with respect to the lease payment calculation period immediately prior to the relevant lease payment calculation period (in the event that the prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of Euro Yen TIBOR with respect to the first date through the last date of the lease payment calculation period plus annual percentage rate of [ * ]% from the first date to the last date of the relevant lease payment calculation period (calculated on a pro rate basis with 360 days a year). |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(4) | (SD Tranche 2) | ||
For each lease payment calculation period, the total sum of (1) property purchase price for the Property in each individual transaction multiplied by the ratio in the following (D); and (2) the interest amount calculated pursuant to the following Paragraph 9 (10) as of the lease payment date with respect to the lease payment calculation period immediately prior to the relevant lease payment calculation period (in the event that the prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of Euro Yen TIBOR with respect to the first date through the last date of the lease payment calculation period plus annual percentage rate of [ * ]% from the first date to the last date of the relevant lease payment calculation period (calculated on a pro rate basis with 360 days a year). | |||
(5) | (Toshiba Tranche 1-A) | ||
For each lease payment calculation period, the total sum of (1) property purchase price for the Property in each individual transaction multiplied by the ratio in the following (E); and (2) the interest amount calculated pursuant to the following Paragraph 9 (13) as of the lease payment date with respect to the lease payment calculation period immediately prior to the relevant lease payment calculation period (in the event that the prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of Euro Yen TIBOR with respect to the first date through the last date of the lease payment calculation period plus annual percentage rate of [ * ]% from the first date to the last date of the relevant lease payment calculation period (calculated on a pro rate basis with 360 days a year). | |||
(6) | (Toshiba Tranche 1-B) | ||
For each lease payment calculation period, the total sum of (1) the amount obtained by multiplying the purchase price of the Property in each individual transaction by the ratio in the following (F); and (2) the interest amount calculated pursuant to the following Paragraph 9 (16) as of the lease payment date with respect to the lease payment calculation period immediately prior to the relevant lease payment calculation period (in |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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the event that the immediately prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of standard fixed interest rate (as defined below) plus annual percentage rate of [ * ]% from the first date through the last date of the lease payment calculation period (calculated on a pro rate basis with 365 days a year). In addition, if the Toshiba Borrower B (as defined in the Toshiba Loan Agreement) receives the amount equivalent to subsidy as prescribed in Article 7, Paragraph 3 of the Toshiba Loan Agreement, the amount equivalent to the relevant subsidy shall be deducted from the above total amount. | |||
(4) | (Toshiba Tranche 2) | ||
For each lease payment calculation period, the total sum of (1) property purchase price for the Property in each individual transaction multiplied by the ratio in the following (G); and (2) the interest amount calculated pursuant to the following Paragraph 9 (19) as of the lease payment date with respect to the lease payment calculation period immediately prior to the relevant lease payment calculation period (in the event that the prior lease payment calculation period does not exist, delivery date is used) multiplied by the interest rate of Euro Yen TIBOR with respect to the first date through the last date of the lease payment calculation period plus annual percentage rate of [ * ]% from the first date to the last date of the relevant lease payment calculation period (calculated on a pro rate basis with 360 days a year). |
(A) | Provided in loan certificate regarding the relevant individual transaction | ||
(B) | Provided in loan certificate regarding the relevant individual transaction | ||
(C) | Provided in loan certificate regarding the relevant individual transaction | ||
(D) | Provided in loan certificate regarding the relevant individual transaction | ||
(E) | Provided in loan certificate regarding the relevant individual transaction | ||
(F) | Provided in loan certificate regarding the relevant individual transaction | ||
(G) | Provided in loan certificate regarding the relevant individual transaction |
In this Clause, Standard Fixed Interest Rates shall mean j and k below. |
(1) | The interest rate as of 3 P.M. (Japan time) on the date designated in advance by |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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Development Bank of Japan (hereinafter referred to as DBJ) as the determination date for the base rate (if such date is not a business day in Japan, then the immediately preceding business day in Japan) calculated by DBJ based on the Yen rate which appears on the Bridge Information Systems, Inc.s Telerate17143 page or its equivalent or alternative page as the value according to maturity for the six months Yen denominated London Interbank Offered Rate. |
4 | Lease payment date | ||
In each individual transaction, each March 10 and September 10 falling after each delivery date. However, in the event that the relevant corresponding date is not a bank business day, the payment date shall be determined pursuant to the provisions of Article7, Paragraph 3 of this Agreement. | |||
5 | Lease payment calculation period | ||
In each individual transaction, each of the following periods for each of the following Tranches (Provided, however, that in the event that this Agreement is cancelled before termination, the |
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last lease payment calculation period is until the relevant cancellation date.): | |||
(1) SD Tranche 1-A, 1-C, and SD Tranche 2 and Toshiba Tranche 1-A and Toshiba Tranche 2 The period commencing from the delivery date and ending on the day immediately preceding the first lease payment calculation date shall be the first lease payment calculation period and thereafter the period commencing from the day immediately succeeding the last date of the immediately preceding lease payment calculation period and ending the day immediately preceding the next lease payment calculation date. | |||
(2) SD Tranche 1-B and Toshiba Tranche 1-B | |||
The period commencing from the delivery date and ending on the first lease payment calculation date shall be the first lease payment calculation period and thereafter the period commencing from the day immediately succeeding the last date of the immediately preceding lease payment calculation period and ending the day immediately preceding the next lease payment calculation date. |
6 | Payment for exercise of purchase option amounts | ||
As described in the relevant request for lease and consent for each individual transaction. | |||
7 | Return Adjustment Fee | ||
As described in the relevant request for lease and consent for each individual transaction. | |||
8 | Repayment standard fee | ||
As described in the relevant request for lease and consent for each individual transaction. | |||
9 | Stipulated loss payment | ||
The total sum of the following (1), (4), (7), (10), (13), (16) and (19) with respect to the delivery date or each lease payment date. Provided, however, that the lease payment as of the relevant lease payment date shall be paid separately. In the event that a date on which a stipulated loss payment shall be paid is neither a delivery date nor lease payment date, it shall be the total sum of the following (2), (3), (5), (6), (8), (9), (11), (12), (14), (15), (17), (18), (20) and (21). | |||
(SD Tranche 1-A) |
(1) | The amount obtained by multiplying the purchase price for the Property or unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (A) | ||
(2) | The amount obtained by multiplying by the rate in the following (A) with respect to the |
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delivery date immediately before the date on which payment should be made for the purchase price of the Property or its unit component part or lease payment date. | |||
(3) | The amount of interest calculated by multiplying the amount mentioned above in (2) by the interest rate of Euro Yen TIBOR stipulated in the list attached to the Loan Agreement, Paragraph 6 (1) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on pro-rate basis with 360 days a year). |
(SD Tranche 1-B) |
(4) | The amount obtained by multiplying the purchase price for the Property or its unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (B) | ||
(5) | The amount obtained by multiplying by the rate in the following (B) with respect to the delivery date immediately before the date on which their payment should be made for the purchase price of the Property or its unit component part or lease payment date. | ||
(6) | The amount of interest calculated by multiplying the amount mentioned above in (5) by the interest rate of standard fixed interest rate stipulated in the list attached to the Loan Agreement, Paragraph 6 (2) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on a pro-rate basis with 360 days a year). In addition, if the SD Borrower B (as defined in the SD Loan Agreement) receives the amount equivalent to subsidy as prescribed in Article 7, Paragraph 3 of the SD Loan Agreement, the amount equivalent to the relevant subsidy shall be deducted from the above total amount. | ||
(SD Tranche 1-C) | |||
(7) | The amount obtained by multiplying the purchase price for the Property or unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (C) | ||
(8) | The amount obtained by multiplying by the rate in the following (C) with respect to the delivery date immediately before the date on which payment should be made for the purchase price of the Property or its unit component part or lease payment date. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(9) | The amount of interest calculated by multiplying the amount mentioned above in (8) by the interest rate of Euro Yen TIBOR stipulated in the list attached to the Loan Agreement, Paragraph 6 (1) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on pro-rate basis with 360 days a year). |
(SD Tranche 2) |
(10) | The amount obtained by multiplying the purchase price for the Property or unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (D) | ||
(11) | The amount obtained by multiplying by the rate in the following (D) with respect to the delivery date immediately before the date on which payment should be made for the purchase price of the Property or its unit component part or lease payment date. | ||
(12) | The amount of interest calculated by multiplying the amount mentioned above in (11) by the interest rate of Euro Yen TIBOR stipulated in the list attached to the Loan Agreement, Paragraph 6 (1) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on pro-rate basis with 360 days a year). |
(Toshiba Tranche 1-A) |
(13) | The amount obtained by multiplying the purchase price for the Property or unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (E) | ||
(14) | The amount obtained by multiplying by the rate in the following (E) with respect to the delivery date immediately before the date on which payment should be made for the purchase price of the Property or its unit component part or lease payment date. | ||
(15) | The amount of interest calculated by multiplying the amount mentioned above in (14) by the interest rate of Euro Yen TIBOR stipulated in the list attached to the Loan Agreement, Paragraph 6 (1) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on pro-rate basis with 360 days a year). |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(Toshiba Tranche 1-B) |
(16) | The amount obtained by multiplying the purchase price for the Property or its unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (F) | ||
(17) | The amount obtained by multiplying by the rate in the following (F) with respect to the delivery date immediately before the date on which their payment should be made for the purchase price of the Property or its unit component part or lease payment date. | ||
(18) | The amount of interest calculated by multiplying the amount mentioned above in (17) by the interest rate of standard fixed interest rate stipulated in the list attached to the Loan Agreement, Paragraph 6 (2) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on a pro-rate basis with 360 days a year). In addition, if the Toshiba Borrower B (as defined in the Toshiba Loan Agreement) receives the amount equivalent to subsidy as prescribed in Article 7, Paragraph 3 of the Toshiba Loan Agreement, the amount equivalent to the relevant subsidy shall be deducted from the above total amount. |
(Toshiba Tranches 2) |
(19) | The amount obtained by multiplying the purchase price for the Property or unit component purchase price with respect to the delivery date or lease payment date by the rate referenced in the following (G) | ||
(20) | The amount obtained by multiplying by the rate in the following (G) with respect to the delivery date immediately before the date on which payment should be made for the purchase price of the Property or its unit component part or lease payment date. | ||
(21) | The amount of interest calculated by multiplying the amount mentioned above in (20) by the interest rate of Euro Yen TIBOR stipulated in the list attached to the Loan Agreement, Paragraph 6 (1) (c) with respect to a period from the first date of the lease payment calculation period through the date on which a stipulated loss payment should be paid plus [ * ]% (calculated on pro-rate basis with 360 days a year). |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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10 | Payment method |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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(2) | Other monies, or in the event that proxy receipt for each Borrower stipulated in Article 7, Paragraph 4 is cancelled, shall be remitted into the account of each Lessor, each Lender or the SD Receivables Assignee in cash or by credit (Lessee shall bear the bank remittance fee). |
11 | The Lenders | ||
(The SD Lenders) |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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12 | The Borrowers | ||
(SD Borrower) | |||
Tuolumne Funding Yugen Kaisha | |||
(Toshiba Borrower) | |||
Mariposa Funding Yugen Kaisha | |||
13 | SD Receivables Assignee | ||
Japan Electric Computer Co., Ltd. | |||
14 | Guarantors | ||
(SanDisk) |
15 | Administrative Custodian, SD Lessor RA, and Toshiba Lessor RA | ||
(SD Administrative Custodian) | |||
SMBC Leasing Company, Limited | |||
(Toshiba Administrative Custodian) | |||
IBJ Leasing Co., Ltd. | |||
(SD Lessor RA) | |||
SMBC Leasing Company, Limited | |||
(Toshiba Lessor RA) | |||
Sumisho Lease Co., Ltd. |
16 | Composition of transactions |
(1) | Lessor shall purchase from Lessee each unit component in each individual transaction on the delivery date pursuant to the Sales and Purchase Agreement and obtain the ownership thereof. The SD Lessor and the Toshiba Lessor share the ownership of the Property in a ratio of 1:1. | ||
(2) | The SD Lessor shall (1) pursuant to the SD Sale and Purchase Agreement regarding Master Receivables, sell to the SD Borrower, at its own election and discretion, the obligations related to SD Tranche 1-AB due under this Agreement on each delivery date |
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in order to raise an amount equivalent to about [
*
]% of the property
purchase price, and
k
pursuant to the SD Receivables Assignment Agreement, sell to
the SD Receivables Assignee, at its own election and discretion, the obligations related
to SD Tranche 1-C due under this Agreement on each delivery date in order to raise an
amount equivalent to about [
*
]% of the property purchase price
|
|||
(3) Pursuant to the Toshiba Sale and Purchase Agreement regarding Master Receivables, the Toshiba Lessor shall sell to the Toshiba Borrower, at its own election and discretion, the obligations related to Toshiba Tranche 1-AB due under this Agreement on each delivery date in order to raise an amount equivalent to about [ * ]% of the property purchase price. |
(4) | To raise funds to purchase receivables/obligations, pursuant to the SD Loan Agreement, the SD Borrower shall, at its own election and discretion, receive financing from the SD Lenders on each delivery date. | ||
(5) | To raise funds to purchase receivables/obligations, pursuant to the Toshiba Loan Agreement, the Toshiba Borrower shall, at its own option and discretion, receive financing from the Toshiba Lenders on each delivery date. | ||
(6) | The SD Lessor and the Toshiba Lessor shall each raise an amount equivalent to about [ * ]% of the property price from their own funds. | ||
(7) | Lessor shall lease to Lessee the relevant unit component part on each delivery date pursuant to this Agreement. The ratio of obligations with respect to SD Tranche 1-AB, SD Tranche 1-C and Toshiba Tranche 1-AB and with respect to SD Tranche 2 and Toshiba Tranche 2 shall be 1 to 1, respectively. |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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1 | Our company hereby applies to your company the property indicated below pursuant to the Master Lease Agreement of September 22, 2006 (the Lease Agreement) executed between our company and your companies. |
2 | Our company confirms that, with respect to each individual transaction subject to this Request, its delivery date, lease period, the share of each Tranche, each amount of lease payments, payment for exercise of purchase options, Return Adjustment Fee, repayment standard fee and stipulated loss payment stipulated in Items 3, 6, 7, 8 and 9 of Attachment 1 to the Master Lease Agreement after being agreed upon pursuant to Article 4, Paragraph 3 of the Lease Agreement, are as follows and provided in Attachment 2 to this Request. |
3 | Our company approves that all of the provisions of the Lease Agreement shall apply to each individual transaction subject to this Request. |
1 | Property loaned | ||
Property specifications : see Attachment 1 | |||
2 | Delivery date : (Month) (Day), 200 |
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Lease period: [years ][months]from the date of delivery | |||
3 | Place of delivery: [800 Yamano-Issiki-cho, Yokkaichi City, Mie Prefecture] |
- 67 -
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SD Tranche 1-A
|
[ * ] | |
|
||
SD Tranche 1-B
|
[ * ] | |
|
||
SD Tranche 1-C
|
[ * ] | |
|
||
SD Tranche 2
|
[ * ] | |
|
||
Toshiba Tranche 1-A
|
[ * ] | |
|
||
Toshiba Tranche 1-B
|
[ * ] | |
|
||
Toshiba Tranche 2
|
[ * ] |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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1 | Our company hereby prepares and delivers to your company this Loan Certificate to certify the receipt of the property indicated below pursuant to the Master Lease Agreement of September 22, 2006 executed between our company and your companies. | |
2 | Our company confirms that, with respect to each individual transaction subject to this Loan Certificate, its delivery date, lease period, the share of each Tranche, each amount of lease payments, payment for exercise of purchase options, Return Adjustment Fee, repayment standard fee and stipulated loss payment stipulated in Items 3, 6, 7, 8 and 9 of Attachment 1 of Master Lease Agreement after being agreed upon pursuant to Article 4, Paragraph 3 of Master Lease Agreement, are as follows and provided in Attachment 2 to this Loan Certificate. | |
3 | Our company approves that all of the provisions of Master Lease Agreement set forth in Item 1, apply to each individual transaction subject to this Loan Certificate. | |
1 | Property loaned | |
Property specifications : see Attachment 1 | ||
2 | Delivery date : (Month) (Day), 200 | |
Lease period : [years ][months]from the date of delivery | ||
3 | Place of delivery : [800 Yamano-Issiki-cho, Yokkaichi City, Mie Prefecture] |
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- 72 -
SD Tranche 1-A
|
[ * ] | |
|
||
SD Tranche 1-B
|
[ * ] | |
|
||
SD Tranche 1-C
|
[ * ] | |
|
||
SD Tranche 2
|
[ * ] | |
|
||
Toshiba Tranche 1-A
|
[ * ] | |
|
||
Toshiba Tranche 1-B
|
[ * ] | |
|
||
Toshiba Tranche 2
|
[ * ] |
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 74 -
(a) | Liens existing on the date hereof and Liens securing refinancing indebtedness in respect of secured indebtedness; | ||
(b) | Indebtedness represented by F, F&E Financing Agreements and/or Capitalized Lease Obligations by secured by the assets acquired pursuant to the respective capital lease (in the case of Capitalized Lease Obligations) or with the proceeds of the respective F, F&E Financing Agreements, so long as such Liens do not extend to any other assets; | ||
(c) | Working Capital Indebtedness up to 50% of SanDisks and its Subsidiaries accounts receivable and inventory balances (and refinancings thereof) may be secured by the assets of SanDisk and its Subsidiaries; | ||
(d) | any Lien arising by reason of (i) any judgment, decree or order of any court, so long as such Lien is adequately bonded and any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order shall not have been finally terminated or the period within which such proceedings may be initiated shall not have expired; (ii) security for payment of workmens compensation or other insurance; (iii) good faith deposits in connection with tenders, leases and contracts (other than contracts for the payment of money); and (iv) deposits to secure, or guarantees of, public, governmental or statutory obligations, or in lieu of surety or appeal bonds; | ||
(e) | Liens for taxes, assessments of other governmental charges not yet due or which are being contested in good faith and by appropriate proceedings by SanDisk or any of its Subsidiaries if adequate reserves with respect thereto are maintained on the books of SanDisk or any of its Subsidiaries, as the case may be, in accordance with GAAP; | ||
(f) | purchase money security interests arising in the ordinary course of business securing only the assets so acquired; | ||
(g) | statutory Liens of carriers, warehousemen, mechanics, landlords, laborers, materialmen, repairmen or other like Liens arising by operation of law in the ordinary course of business and consistent with industry practices and Liens on deposits made to obtain the release of such Liens if (i) the |
- 75 -
underlying obligations are not overdue for a period of more than 60 days or (ii) such Liens are being contested in good faith and by appropriate proceedings by SanDisk or any of its Subsidiaries and adequate reserves with respect thereto are maintained on the books of SanDisk or any of its Subsidiaries, as the case may be, in accordance with GAAP; | |||
(h) | Easements, rights-of-way, zoning and similar restrictions and other similar encumbrances or title defects, which, if they are incurred by SanDisk or any of its Subsidiaries after it acquires the property subject thereto, are incurred in the ordinary course of business and consistent with industry practices which, individually or in the aggregate, do not materially detract from the value of the property subject thereto (as such property is used or proposed to be used by SanDisk or any of its Subsidiaries) or interfere with the ordinary conduct of the business of SanDisk or any of its Subsidiaries, provided, that any such Liens are not incurred in connection with any borrowing of money or any commitment to loan any money or to extend any credit; | ||
(i) | Liens that secure Acquired Indebtedness (and refinancings thereof), provided, in each case, that such Liens do not secure any property or assets other than the property or asset so acquired; | ||
(j) | leases or subleases granted to other persons not materially interfering with the conduct of the business of SanDisk or any of its Subsidiaries or materially detracting from the value of the relative assets of SanDisk or such Subsidiary; | ||
(k) | Liens arising from precautionary Uniform Commercial Code financing statement filings regarding operating leases entered into by SanDisk or any of its Subsidiaries; | ||
(l) | A notice of intention filed by a mechanic, materialman, or laborer under applicable mechanics lien law, or a building contract filed by a contractor or subcontractor thereunder; and | ||
(m) | Other Liens as SanDisk and the Lessors may agree upon from time to time. |
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(a) | Security interests/liens existing at the execution of this Agreement and security interests/liens to guarantee refinancing debt related to the secured debt. | ||
(b) | Security interests/liens established by an agreement to establish security interest and obtain operating assets (an agreement to obtain (including purchases and/or leases) operating assets after the execution of this Agreement in order to implement or develop each enterprise of SanDisk or affiliated companies ((i) any company owned directly or indirectly at that time by SanDisk through ownership of a majority of the voting shares (shares which have been issued by that time and which grant in the ordinary course of business the right to select directors and similar positions of the issuer) by SanDisk alone, or by SanDisk and an affiliated company, or by a SanDisk affiliated company alone, (ii) any entity (excluding a corporation) |
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in which SanDisk independently, or SanDisk and its affiliated company, or a SanDisk affiliated company alone owns a majority interest directly or indirectly on the date of decision, or (iii) any partnership in which SanDisk or a SanDisk affiliated company is a general partner and owns a majority interest; similarly throughout this Article) executed to establish a security interest in those operating assets for the purpose of securing payment of the price of those assets), as well as security interests established in assets obtained pursuant to a capital lease (a lease or other financing required by SanDisk or an affiliated company under U.S. accounting standards (GAAP) for capitalization; similarly below) to secure the payment of the price of those assets. | |||
(c) | Security interests/liens established in the assets of SanDisk or its affiliated companies to secure accounts receivables or inventory balances and financings thereof up to 50 percent of working capital debt (debt borrowed under a credit facility available for use by SanDisk or its affiliated companies, which is used for working capital or some similar purpose) . | ||
(d) | (i) Security interests/liens arising by reason of court judgment, decision, or order (provided, however, that this shall only apply if a bond sufficient for purposes of appealing such judgment, decision, or order has been paid, and all legal procedures properly instituted for the review of such judgment, decision, or order have not been terminated, or the period within which such procedures may be initiated has not expired); (ii) security interests to guarantee payment of workers compensation insurance and other insurance; (iii) good-faith deposit monies for deposits related to tenders, leases, and contracts (excluding contracts for payment of money); and (4) deposits to secure a public, government, or legal obligations, or appeal bonds. | ||
(e) | Security interests to secure payable taxes, public charges, and other governmental levies that are not yet due, and security interests to secure taxes, public charges, and other governmental levies that SanDisk or its affiliated companies are contested in court in good faith and by appropriate procedures. Provided, however, that this shall be limited to cases in which SanDisk or its affiliated companies have set aside sufficient reserves on its books for these charges as appropriate pursuant to GAAP. | ||
(f) | Purchase money security interests arising in the ordinary course of business. |
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Provided, however, that this shall be limited to assets acquired therein. | |||
(g) | Judicial liens for carriers, warehousemen, workmen, landlords, laborers, material suppliers, and mechanics and other similar liens arising by operation of law in the ordinary course of business and consistent with standard industry practices, and any security interests on deposits to release any of these liens. Provided, however, that this shall be limited to situations (i) within 60 days since the payment of the underlying indebtedness has become due, or (ii) such lien is contested in good faith and according to the appropriate procedures by SanDisk or its affiliated companies and SanDisk or its affiliated companies have set aside sufficient reserves on their books for these charges as appropriate pursuant to GAAP. | ||
(h) | Easements, limitations on use, or other limitations or similar encumbrances or title defects that are incurred by SanDisk or its affiliated companies after it acquired the property subject thereto in the ordinary course of business in a manner consistent with industry practices and do not, whether in whole or in part, reduce the actual value of the property and do not interfere with the ordinary operations of SanDisk or its affiliated companies. Provided, however, that these security interests are not incurred in connection with any borrowing of money, any commitment to loan money or extending credit. | ||
(i) | Security interests to secure acquired debt or financings thereof ((i) debt existing at a time of any person who has become a SanDisk affiliated company, or is merged with SanDisk or its affiliated company, or (ii) debt assumed in connection with the acquisition of assets from some person). Provided, however, that these security interests shall be limited to those established in the assets acquired. | ||
(j) | A lease or sublease of assets of SanDisk or its affiliated companies not materially interfering with the ordinary operations of SanDisk or its affiliated company. Provided, however, that such lease or sublease does not reduce the actual value of such assets. | ||
(k) | Security interests arising from precautionary Uniform Commercial Code financing statement filings related to operating leases entered into by SanDisk or its affiliated company | ||
(l) | Security interests arising from filing a notice of intention by a mechanic, material supplier, or laborer under applicable mechanics lien law or a building contract filed by a contractor or subcontractor thereunder |
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1 | Property returned | |
Property specifications : as listed in the attachment | ||
2 | Day of return : (Month) (Day), 200_ | |
3 | Place of return : |
- 80 -
1 | Transferee : Flash Partners Yugen Kaisha | |
2 | Property specifications : as listed in the attachment |
|
Toshiba Finance Corporation. | |
|
||
|
SMBC Leasing | |
|
Company, Limited | |
|
||
|
Sumisho Lease Co., Ltd. | |
|
||
|
Fuyo General Lease Co., Ltd. | |
|
||
|
Tokyo Leasing Co., Ltd. | |
|
||
|
STB Leasing Co., Ltd. | |
|
||
|
IBJ Leasing Co., Ltd. |
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* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 82 -
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 83 -
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 84 -
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 85 -
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 86 -
* | Indicates that certain information contained herein has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
- 87 -
/s/ Eli Harari | ||||
Eli Harari | ||||
Chief Executive Officer
(Principal Executive Officer) |
/s/ Judy Bruner | ||||
Judy Bruner | ||||
Chief Financial Officer
(Principal Financial and Accounting Officer) |
By:
|
/s/ Eli Harari | |||
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Eli Harari | |||
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Chief Executive Officer | |||
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(Principal Executive Officer) |
By:
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/s/ Judy Bruner | |||
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Judy Bruner | |||
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Chief Financial Officer | |||
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(Principal Financial and Accounting Officer) |