þ
|
QUARTERLY
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
|
¨
|
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)
|
Yes
þ
|
No
¨
|
Yes
¨
|
No
¨
|
Large
accelerated filer
þ
|
Accelerated
filer
¨
|
Non
accelerated filer
¨
|
Smaller
reporting company
¨
|
Yes
¨
|
No
þ
|
Page No.
|
||
PART
I. FINANCIAL INFORMATION
|
||
Item
1.
|
Condensed
Consolidated Financial Statements:
|
|
3
|
||
4
|
||
5
|
||
6
|
||
7
|
||
Item
2.
|
45
|
|
Item
3.
|
55
|
|
Item
4.
|
56
|
|
PART
II. OTHER INFORMATION
|
||
Item
1.
|
57
|
|
Item
1A.
|
57
|
|
Item
2.
|
75
|
|
Item
3.
|
75
|
|
Item
4.
|
75
|
|
Item
5.
|
75
|
|
Item
6.
|
75
|
|
76
|
||
77
|
Condensed
Consolidated Financial Statements
|
March 29,
2009
|
December 28,
2008*
|
|||||||
(In
thousands)
|
||||||||
ASSETS
|
||||||||
Current
assets
|
||||||||
Cash
and cash equivalents
|
$ | 1,090,079 | $ | 962,061 | ||||
Short-term
investments
|
395,088 | 477,296 | ||||||
Accounts
receivable from product revenues, net
|
109,095 | 122,092 | ||||||
Inventory
|
552,170 | 598,251 | ||||||
Deferred
taxes
|
17,123 | 84,023 | ||||||
Other
current assets
|
224,071 | 469,961 | ||||||
Total
current assets
|
2,387,626 | 2,713,684 | ||||||
Long-term
investments
|
897,427 | 1,097,302 | ||||||
Property
and equipment, net
|
373,147 | 396,987 | ||||||
Notes
receivable and investments in flash ventures with Toshiba
|
1,467,612 | 1,602,291 | ||||||
Deferred
taxes
|
46,019 | 15,188 | ||||||
Intangible
assets, net
|
58,721 | 63,182 | ||||||
Other
non-current assets
|
37,248 | 43,506 | ||||||
Total
assets
|
$ | 5,267,800 | $ | 5,932,140 | ||||
LIABILITIES
|
||||||||
Current
liabilities
|
||||||||
Accounts
payable trade
|
$ | 128,524 | $ | 240,985 | ||||
Accounts
payable to related parties
|
299,851 | 370,006 | ||||||
Convertible
short-term debt
|
75,000 | — | ||||||
Other
current accrued liabilities
|
307,526 | 502,443 | ||||||
Deferred
income on shipments to distributors and retailers and deferred
revenue
|
178,012 | 149,575 | ||||||
Total
current liabilities
|
988,913 | 1,263,009 | ||||||
Convertible
long-term debt
|
892,314 | 954,094 | ||||||
Non-current
liabilities
|
209,481 | 274,316 | ||||||
Total
liabilities
|
2,090,708 | 2,491,419 | ||||||
Commitments
and contingencies (see Note 12)
|
||||||||
EQUITY
|
||||||||
Stockholders’
equity
|
||||||||
Preferred
stock
|
— | — | ||||||
Common
stock
|
227 | 226 | ||||||
Capital
in excess of par value
|
4,174,216 | 4,154,166 | ||||||
Accumulated
deficit
|
(1,110,794 | ) | (902,799 | ) | ||||
Accumulated
other comprehensive income
|
113,786 | 188,977 | ||||||
Total
stockholders’ equity
|
3,177,435 | 3,440,570 | ||||||
Non-controlling
interests
|
(343 | ) | 151 | |||||
Total
equity
|
3,177,092 | 3,440,721 | ||||||
Total
liabilities and equity
|
$ | 5,267,800 | $ | 5,932,140 |
*
|
As
adjusted for the adoption of new accounting standards. See Note
1.
|
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008*
|
|||||||
(In thousands,
except per share amounts)
|
||||||||
Revenues
|
||||||||
Product
|
$ | 588,099 | $ | 724,051 | ||||
License
and royalty
|
71,372 | 125,916 | ||||||
Total
revenues
|
659,471 | 849,967 | ||||||
Cost
of product revenues
|
657,478 | 576,604 | ||||||
Amortization
of acquisition-related intangible assets
|
3,132 | 14,582 | ||||||
Total
cost of product revenues
|
660,610 | 591,186 | ||||||
Gross
profit (loss)
|
(1,139 | ) | 258,781 | |||||
Operating
expenses
|
||||||||
Research
and development
|
86,936 | 111,434 | ||||||
Sales
and marketing
|
37,878 | 80,156 | ||||||
General
and administrative
|
38,325 | 57,804 | ||||||
Amortization
of acquisition-related intangible assets
|
292 | 4,475 | ||||||
Restructuring
and other
|
765 | — | ||||||
Total
operating expenses
|
164,196 | 253,869 | ||||||
Operating
income (loss)
|
(165,335 | ) | 4,912 | |||||
Interest
income
|
19,368 | 25,756 | ||||||
Interest
(expense) and other income (expense), net
|
(38,061 | ) | (11,871 | ) | ||||
Total
other income (expense)
|
(18,693 | ) | 13,885 | |||||
Income
(loss) before provision for income taxes
|
(184,028 | ) | 18,797 | |||||
Provision
for income taxes
|
23,967 | 7,837 | ||||||
Net
income (loss)
|
$ | (207,995 | ) | $ | 10,960 | |||
Net
income (loss) per share:
|
||||||||
Basic
|
$ | (0.92 | ) | $ | 0.05 | |||
Diluted
|
$ | (0.92 | ) | $ | 0.05 | |||
Shares
used in computing net income (loss) per share:
|
||||||||
Basic
|
226,529 | 224,518 | ||||||
Diluted
|
226,529 | 229,480 |
*
|
As
adjusted for the adoption of new accounting standards. See Note
1.
|
Stockholders’
Equity
|
||||||||||||||||||||||||||||||||
Common
Stock Shares
|
Common
Stock
Par
Value
|
Capital
in Excess of Par Value*
|
Accumulated
Deficit*
|
Accumulated
Other Comprehensive
Income
|
Total*
|
Non-Controlling
Interests
|
Total
Equity
|
|||||||||||||||||||||||||
(In
thousands)
|
||||||||||||||||||||||||||||||||
Balance
at December 28, 2008
|
226,128 | $ | 226 | $ | 4,154,166 | $ | (902,799 | ) | $ | 188,977 | $ | 3,440,570 | $ | 151 | $ | 3,440,721 | ||||||||||||||||
Net
loss
|
— | — | — | (207,995 | ) | — | (207,995 | ) | (494 | ) | (208,489 | ) | ||||||||||||||||||||
Unrealized
income on available-for-sale investments
|
— | — | — | — | 11,186 | 11,186 | — | 11,186 | ||||||||||||||||||||||||
Foreign
currency translation
|
— | — | — | — | (58,303 | ) | (58,303 | ) | — | (58,303 | ) | |||||||||||||||||||||
Unrealized
loss on hedging activities
|
— | — | — | — | (28,074 | ) | (28,074 | ) | — | (28,074 | ) | |||||||||||||||||||||
Comprehensive
loss
|
(283,186 | ) | (494 | ) | (283,680 | ) | ||||||||||||||||||||||||||
Issuance
of shares pursuant to equity plans
|
129 | — | 153 | — | — | 153 | — | 153 | ||||||||||||||||||||||||
Issuance
of stock pursuant to employee stock purchase plan
|
455 | 1 | 4,416 | — | — | 4,417 | — | 4,417 | ||||||||||||||||||||||||
Issuance
of restricted stock
|
143 | — | — | — | — | — | — | — | ||||||||||||||||||||||||
Share-based
compensation expense
|
— | — | 15,481 | — | — | 15,481 | — | 15,481 | ||||||||||||||||||||||||
Balance
at March 29, 2009
|
226,855 | $ | 227 | $ | 4,174,216 | $ | (1,110,794 | ) | $ | 113,786 | $ | 3,177,435 | $ | (343 | ) | $ | 3,177,092 |
*
|
As
adjusted for the adoption of new accounting standards. See Note
1.
|
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008*
|
|||||||
(In
thousands)
|
||||||||
Cash
flows from operating activities:
|
||||||||
Net
income (loss)
|
$ | (207,995 | ) | $ | 10,960 | |||
Adjustments
to reconcile net income (loss) to net cash provided by operating
activities:
|
||||||||
Deferred
and other taxes
|
8,922 | (9,446 | ) | |||||
Depreciation
|
39,125 | 41,210 | ||||||
Amortization
|
18,344 | 33,670 | ||||||
Provision
for doubtful accounts
|
2,163 | 5,774 | ||||||
Share-based
compensation expense
|
16,330 | 23,226 | ||||||
Excess
tax benefit from share-based compensation
|
— | (794 | ) | |||||
Impairment,
restructuring and other charges
|
9,038 | 3,934 | ||||||
Other
non-cash charges
|
(6,027 | ) | 5,392 | |||||
Changes
in operating assets and liabilities:
|
||||||||
Accounts
receivable from product revenues
|
10,833 | 276,937 | ||||||
Inventory
|
40,309 | (140,362 | ) | |||||
Other
assets
|
220,383 | 109,981 | ||||||
Accounts
payable trade
|
(112,460 | ) | (53,014 | ) | ||||
Accounts
payable to related parties
|
(70,155 | ) | 3,721 | |||||
Other
liabilities
|
(83,071 | ) | (92,556 | ) | ||||
Total
adjustments
|
93,734 | 207,673 | ||||||
Net
cash provided by (used in) operating activities
|
(114,261 | ) | 218,633 | |||||
Cash
flows from investing activities:
|
||||||||
Purchases
of short and long-term investments
|
(168,938 | ) | (354,955 | ) | ||||
Proceeds
from sales of short and long-term investments
|
422,112 | 434,364 | ||||||
Proceeds
from maturities of short and long-term investments
|
36,630 | 190,049 | ||||||
Acquisition
of property and equipment
|
(16,497 | ) | (56,774 | ) | ||||
Distribution
from FlashVision Ltd.
|
12,713 | — | ||||||
Notes
receivable issuance, Flash Partners Ltd. and Flash Alliance
Ltd.
|
(326,350 | ) | (37,418 | ) | ||||
Notes
receivable proceeds, Flash Partners Ltd. and Flash Alliance
Ltd.
|
277,070 | — | ||||||
Purchased
technology and other assets
|
1,210 | 1,125 | ||||||
Net
cash provided by investing activities
|
237,950 | 176,391 | ||||||
Cash
flows from financing activities:
|
||||||||
Repayment
of debt financing
|
— | (9,785 | ) | |||||
Proceeds
from employee stock programs
|
4,570 | 6,437 | ||||||
Excess
tax benefit from share-based compensation
|
— | 794 | ||||||
Net
cash provided by (used in) financing activities
|
4,570 | (2,554 | ) | |||||
Effect
of changes in foreign currency exchange rates on cash
|
(241 | ) | (934 | ) | ||||
Net
increase in cash and cash equivalents
|
128,018 | 391,536 | ||||||
Cash
and cash equivalents at beginning of the period
|
962,061 | 833,749 | ||||||
Cash
and cash equivalents at end of the period
|
$ | 1,090,079 | $ | 1,225,285 |
*
|
As
adjusted for the adoption of new accounting standards. See Note
1.
|
1.
|
Organization
and Summary of Significant Accounting
Policies
|
As
Reported
|
As
Adjusted
|
|||||||
Interest
(expense) and other income (expense), net
|
$ | 126 | $ | (11,871 | ) | |||
Provision
for income taxes
|
12,914 | 7,837 | ||||||
Net
income
|
17,880 | 10,960 | ||||||
Net
income per share:
|
||||||||
Basic
|
$ | 0.08 | $ | 0.05 | ||||
Diluted
|
$ | 0.08 | $ | 0.05 |
2.
|
Financing
Arrangements
|
March 29,
2009
|
December 28,
2008
|
|||||||
1%
Notes due 2013
|
$ | 1,150.0 | $ | 1,150.0 | ||||
Less:
Unamortized Interest Discount
|
(257.7 | ) | (270.9 | ) | ||||
Net
Carrying Amount of 1% Notes due 2013
|
892.3 | 879.1 | ||||||
1%
Notes due 2035
|
75.0 | 75.0 | ||||||
Total
convertible debt
|
967.3 | 954.1 | ||||||
Less:
convertible short-term debt
|
(75.0 | ) | — | |||||
Convertible
long-term debt
|
$ | 892.3 | $ | 954.1 |
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Contractual
interest coupon
|
$ | 2.9 | $ | 2.9 | ||||
Amortization
of interest discount
|
13.2 | 12.3 | ||||||
Total
interest cost recognized
|
$ | 16.1 | $ | 15.2 |
3.
|
Investments
and Fair Value Measurements
|
Total
|
Quoted
Prices in Active Markets for Identical Assets
(Level
1)
|
Significant
Other Observable Inputs
(Level
2)
|
Significant
Unobservable Inputs
(Level
3)
|
|||||||||||||
Fixed
income securities
|
$ | 1,606,270 | $ | 381,974 | $ | 1,224,296 | $ | — | ||||||||
Equity
securities
|
47,060 | 47,060 | — | — | ||||||||||||
Derivative
assets
|
68,702 | — | 68,702 | — | ||||||||||||
Other
|
1,222 | — | 1,222 | — | ||||||||||||
Total
financial assets
|
$ | 1,723,254 | $ | 429,034 | $ | 1,294,220 | $ | — | ||||||||
Derivative
liabilities
|
$ | 8,292 | $ | — | $ | 8,292 | $ | — | ||||||||
Total
financial liabilities
|
$ | 8,292 | $ | — | $ | 8,292 | $ | — |
Total
|
Quoted
Prices in Active Markets for Identical Assets
(Level
1)
|
Significant
Other Observable Inputs
(Level
2)
|
Significant
Unobservable Inputs
(Level
3)
|
|||||||||||||
Fixed
income securities
|
$ | 1,822,466 | $ | 317,081 | $ | 1,505,385 | $ | — | ||||||||
Equity
investments
|
37,227 | 37,227 | — | — | ||||||||||||
Derivative
assets
|
105,133 | — | 105,133 | — | ||||||||||||
Other
|
2,889 | — | 2,889 | — | ||||||||||||
Total
financial assets
|
$ | 1,967,715 | $ | 354,308 | $ | 1,613,407 | $ | — | ||||||||
Derivative
liabilities
|
$ | 153,523 | $ | — | $ | 153,523 | $ | — | ||||||||
Total
financial liabilities
|
$ | 153,523 | $ | — | $ | 153,523 | $ | — |
Total
|
Quoted
Prices in Active Markets for Identical Assets
(Level
1)
|
Significant
Other Observable Inputs
(Level
2)
|
Significant
Unobservable Inputs
(Level
3)
|
|||||||||||||
Cash
equivalents
(1)
|
$ | 382,976 | $ | 381,974 | $ | 1,002 | $ | — | ||||||||
Short-term
investments
|
395,088 | 3,489 | 391,599 | — | ||||||||||||
Long-term
investments
|
897,427 | 43,571 | 853,856 | — | ||||||||||||
Other
current assets and other non-current assets
|
47,763 | — | 47,763 | — | ||||||||||||
Total
assets
|
$ | 1,723,254 | $ | 429,034 | $ | 1,294,220 | $ | — | ||||||||
Other
current accrued liabilities
|
$ | 8,292 | $ | — | $ | 8,292 | $ | — | ||||||||
Total
liabilities
|
$ | 8,292 | $ | — | $ | 8,292 | $ | — |
(1)
|
Cash
equivalents exclude cash of $707.1 million included in Cash and Cash
Equivalents of the Condensed Consolidated Balance Sheet as of March 29,
2009.
|
March 29,
2009
|
December 28,
2008
|
|||||||||||||||||||||||||||||||
Book
Value
|
Gross
Unrealized Gain
|
Gross
Unrealized Loss
|
Market
Value
|
Book
Value
|
Gross
Unrealized Gain
|
Gross
Unrealized Loss
|
Market
Value
|
|||||||||||||||||||||||||
Fixed
income securities:
|
||||||||||||||||||||||||||||||||
U.S.
agency securities
|
$ | 29,216 | $ | 109 | $ | (3 | ) | $ | 29,322 | $ | 40,110 | $ | 476 | $ | — | $ | 40,586 | |||||||||||||||
U.S.
corporate notes and bonds
|
40,155 | 278 | (127 | ) | 40,306 | 56,916 | 267 | (360 | ) | 56,823 | ||||||||||||||||||||||
Municipal
notes and bonds
|
1,130,204 | 24,583 | (119 | ) | 1,154,668 | 1,387,592 | 21,714 | (1,330 | ) | 1,407,976 | ||||||||||||||||||||||
1,199,575 | 24,970 | (249 | ) | 1,224,296 | 1,484,618 | 22,457 | (1,690 | ) | 1,505,385 | |||||||||||||||||||||||
Equity
investments
|
70,226 | 1,427 | (24,593 | ) | 47,060 | 70,226 | — | (32,999 | ) | 37,227 | ||||||||||||||||||||||
Total
available-for-sale investments
|
$ | 1,269,801 | $ | 26,397 | $ | (24,842 | ) | $ | 1,271,356 | $ | 1,554,844 | $ | 22,457 | $ | (34,689 | ) | $ | 1,542,612 |
Unrealized
Loss for Less than 12 Months
|
||||||||
Market
Value
|
Gross
Unrealized
Loss
|
|||||||
U.S.
agency securities, U.S. corporate and municipal notes and
bonds
|
$ | 66,931 | $ | (249 | ) | |||
Equity
investments
|
43,571 | (24,593 | ) | |||||
Total
|
$ | 110,502 | $ | (24,842 | ) |
Cost
|
Estimated
Fair
Value
|
|||||||
Due
in one year or less
|
$ | 389,092 | $ | 392,602 | ||||
Due
after one year through five years
|
810,483 | 831,694 | ||||||
Total
|
$ | 1,199,575 | $ | 1,224,296 |
4.
|
Derivatives
and Hedging Activities
|
Derivative
Assets Reported in
|
Derivative Liabilities Reported
in
|
|||||||||||||||||||||||
Other
Current Assets
|
Long-term
Investments
|
Other
Current Accrued Liabilities
|
||||||||||||||||||||||
March 29,
2009
|
December 28,
2008
|
March 29,
2009
|
December 28,
2008
|
March 29,
2009
|
December 28,
2008
|
|||||||||||||||||||
Foreign
exchange contracts designated as cash flow hedges
|
$ | 12,922 | $ | 51,576 | $ | — | $ | — | $ | 757 | $ | — | ||||||||||||
Equity
market risk contract designated as cash flow hedge
|
— | — | 22,161 | 31,987 | — | — | ||||||||||||||||||
Total
derivatives designated as hedging instruments
|
12,922 | 51,576 | 22,161 | 31,987 | 757 | — | ||||||||||||||||||
Foreign
exchange contracts not designated
|
33,620 | 21,570 | — | — | 7,535 | 153,523 | ||||||||||||||||||
Total
derivatives
|
$ | 46,542 | $ | 73,146 | $ | 22,161 | $ | 31,987 | $ | 8,292 | $ | 153,523 |
Three
months ended
|
||||||||||||||||
Amount
of Loss Recognized in OCI
|
Amount
of Gain Reclassified from OCI to the Statement of
Operations
|
|||||||||||||||
March
29,
2009
|
March
28,
2008
|
March
29,
2009
|
March
28,
2008
|
|||||||||||||
Foreign
exchange contracts designated as cash flow hedges
|
$ | (14,638 | ) | $ | — | $ | 3,610 | $ | — | |||||||
Equity
market risk contract designated as cash flow hedge
|
(9,826 | ) | — | — | — |
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Foreign
exchange contracts designated as cash flow hedges
|
$ | (997 | ) | $ | — | |||
Equity
market risk contract designated as cash flow hedge
|
— | — |
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Gain
(loss) on foreign exchange contracts
|
$ | 101,125 | $ | (65,087 | ) |
5.
|
Balance
Sheet Information
|
March 29,
2009
|
December 28,
2008
|
|||||||
Trade
accounts receivable
|
$ | 413,549 | $ | 584,262 | ||||
Allowance
for doubtful accounts
|
(16,068 | ) | (13,881 | ) | ||||
Price
protection, promotions and other activities
|
(288,386 | ) | (448,289 | ) | ||||
Total
accounts receivable from product revenues, net
|
$ | 109,095 | $ | 122,092 |
March 29,
2009
|
December 28,
2008
|
|||||||
Raw
material
|
$ | 264,330 | $ | 309,436 | ||||
Work-in-process
|
137,217 | 90,544 | ||||||
Finished
goods
|
150,623 | 198,271 | ||||||
Total
inventory
|
$ | 552,170 | $ | 598,251 |
March 29,
2009
|
December 28,
2008
|
|||||||
Royalty
and other receivables
|
$ | 34,119 | $ | 81,451 | ||||
Prepaid
expenses
|
16,828 | 20,321 | ||||||
Prepaid
income taxes and tax related receivables
|
126,401 | 294,906 | ||||||
Other
current assets
|
46,723 | 73,283 | ||||||
Total
other current assets
|
$ | 224,071 | $ | 469,961 |
March 29,
2009
|
December 28,
2008
|
|||||||
Notes
receivable, Flash Partners Ltd.
|
$ | 634,913 | $ | 843,380 | ||||
Notes
receivable, Flash Alliance Ltd.
|
441,011 | 276,518 | ||||||
Investment
in FlashVision Ltd.
|
— | 63,965 | ||||||
Investment
in Flash Partners Ltd.
|
189,357 | 202,530 | ||||||
Investment
in Flash Alliance Ltd.
|
202,331 | 215,898 | ||||||
Total
notes receivable and investments in the flash ventures with
Toshiba
|
$ | 1,467,612 | $ | 1,602,291 |
March 29,
2009
|
December 28,
2008
|
|||||||
Accrued
payroll and related expenses
|
$ | 54,253 | $ | 54,516 | ||||
Accrued
restructuring
|
17,198 | 22,545 | ||||||
Research
and development liability, related party
|
2,000 | 4,000 | ||||||
Foreign
currency forward contract payables
|
8,292 | 153,523 | ||||||
Flash
Ventures adverse purchase commitments for under utilized
capacity
(see
Note 12)
|
62,778 | 121,486 | ||||||
Other
accrued liabilities
|
163,005 | 146,373 | ||||||
Total
other current accrued liabilities
|
$ | 307,526 | $ | 502,443 |
March 29,
2009
|
December 28,
2008
|
|||||||
Deferred
tax liability
|
$ | 16,723 | $ | 87,688 | ||||
Income
taxes payable
|
154,264 | 145,432 | ||||||
Accrued
restructuring
|
10,578 | 11,070 | ||||||
Other
non-current liabilities
|
27,916 | 30,126 | ||||||
Total
non-current liabilities
|
$ | 209,481 | $ | 274,316 |
6.
|
Intangible
Assets
|
March 29,
2009
|
||||||||||||
Gross
Carrying Amount
|
Accumulated
Amortization
|
Net
Carrying Amount
|
||||||||||
Core
technology
|
$ | 79,800 | $ | (35,924 | ) | $ | 43,876 | |||||
Developed
product technology
|
11,400 | (5,225 | ) | 6,175 | ||||||||
Acquisition-related
intangible assets
|
91,200 | (41,149 | ) | 50,051 | ||||||||
Technology
licenses and patents
|
16,526 | (7,856 | ) | 8,670 | ||||||||
Total
|
$ | 107,726 | $ | (49,005 | ) | $ | 58,721 |
December 28,
2008
|
||||||||||||||||
Gross
Carrying Amount
|
Impairment
|
Accumulated
Amortization
|
Net
Carrying Amount
|
|||||||||||||
Core
technology
|
$ | 315,301 | $ | (136,001 | ) | $ | (132,407 | ) | $ | 46,893 | ||||||
Developed
product technology
|
12,900 | — | (6,318 | ) | 6,582 | |||||||||||
Customer
relationships
|
80,100 | (39,784 | ) | (40,316 | ) | — | ||||||||||
Acquisition-related
intangible assets
|
408,301 | (175,785 | ) | (179,041 | ) | 53,475 | ||||||||||
Technology
licenses and patents
|
23,814 | — | (14,107 | ) | 9,707 | |||||||||||
Total
|
$ | 432,115 | $ | (175,785 | ) | $ | (193,148 | ) | $ | 63,182 |
Estimated
Amortization Expenses
|
||||||||
Fiscal year:
|
Acquisition-Related
Intangible Assets
|
Technology
Licenses and Patents
|
||||||
2009
(remaining nine months)
|
$ | 10,271 | $ | 3,414 | ||||
2010
|
13,695 | 3,121 | ||||||
2011
|
13,034 | 1,268 | ||||||
2012
|
12,529 | 620 | ||||||
2013
|
522 | 245 | ||||||
2014
and thereafter
|
— | 2 | ||||||
Total
|
$ | 50,051 | $ | 8,670 |
7.
|
Warranties
|
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Balance,
beginning of period
|
$ | 36,469 | $ | 18,662 | ||||
Additions
|
4,913 | 11,155 | ||||||
Usage
|
(10,088 | ) | (16,124 | ) | ||||
Balance,
end of period
|
$ | 31,294 | $ | 13,693 |
8.
|
Accumulated
Other Comprehensive Income
|
March 29,
2009
|
December 28,
2008
|
|||||||
Accumulated
net unrealized gain (loss) on:
|
||||||||
Available-for-sale
investments
|
$ | (7,222 | ) | $ | (18,408 | ) | ||
Foreign
currency translation
|
42,883 | 101,186 | ||||||
Hedging
activities
|
78,125 | 106,199 | ||||||
Total
accumulated other comprehensive income
|
$ | 113,786 | $ | 188,977 |
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Net
income (loss)
|
$ | (207,995 | ) | $ | 10,960 | |||
Non-controlling
interest
|
(494 | ) | — | |||||
(208,489 | ) | 10,960 | ||||||
Change
in accumulated unrealized gain (loss) on:
|
||||||||
Available-for-sale
investments
|
11,186 | 7,793 | ||||||
Foreign
currency translation
|
(58,303 | ) | 38,557 | |||||
Hedging
activities
|
(28,074 | ) | (1,636 | ) | ||||
Comprehensive
income (loss)
|
$ | (283,680 | ) | $ | 55,674 |
9.
|
Restructuring
Plans
|
Severance
and Benefits
|
||||
Restructuring
provision
|
$ | 4.1 | ||
Cash
paid
|
(3.1 | ) | ||
Accrual
balance at December 28, 2008
|
1.0 | |||
Accrual
adjustments
|
(0.8 | ) | ||
Accrual
balance at March 29, 2009
|
$ | 0.2 |
Severance
and Benefits
|
Contract
Termination Fees and Other Charges
|
Total
|
||||||||||
Restructuring
and other provisions
|
$ | 10.4 | $ | 21.0 | $ | 31.4 | ||||||
Cash
paid
|
(4.1 | ) | (2.4 | ) | (6.5 | ) | ||||||
Non-cash
utilization
|
─
|
(4.6 | ) | (4.6 | ) | |||||||
Accrual
balance at December 28, 2008
|
6.3 | 14.0 | 20.3 | |||||||||
Restructuring
|
1.6 |
─
|
1.6 | |||||||||
Cash
paid
|
(6.2 | ) | (1.5 | ) | (7.7 | ) | ||||||
Accrual
balance at March 29, 2009
|
$ | 1.7 | $ | 12.5 | $ | 14.2 |
10.
|
Share-Based
Compensation
|
Three
months ended
|
||
March 29,
2009
|
March 30,
2008
|
|
Option
Plan Shares
|
||
Dividend
yield
|
None
|
None
|
Expected
volatility
|
0.87
|
0.50
|
Risk
free interest rate
|
1.39%
|
2.28%
|
Expected
lives
|
3.6
years
|
3.6
years
|
Estimated
annual forfeiture rate
|
9.07%
|
8.31%
|
Weighted
average fair value at grant date
|
$4.92
|
$9.76
|
Employee
Stock Purchase Plan Shares
|
||
Dividend
yield
|
None
|
None
|
Expected
volatility
|
0.81
|
0.53
|
Risk
free interest rate
|
0.39%
|
2.15%
|
Expected
lives
|
½
year
|
½
year
|
Weighted
average fair value for grant period
|
$4.21
|
$8.34
|
Shares
|
Weighted
Average Exercise Price
|
Weighted
Average Remaining Contractual Term (Years)
|
Aggregate
Intrinsic Value
|
|||||||||||||
Options
and SARs outstanding at December 28, 2008
|
25,057 | $ | 33.59 | 4.9 | $ | 5,284 | ||||||||||
Granted
|
3,727 | 8.21 | ||||||||||||||
Exercised
|
(129 | ) | 7.71 | 419 | ||||||||||||
Forfeited
|
(606 | ) | 40.61 | |||||||||||||
Expired
|
(409 | ) | 38.48 | |||||||||||||
Options
and SARs outstanding at March 29, 2009
|
27,640 | 30.06 | 4.9 | 35,320 | ||||||||||||
Options
and SARs vested and expected to vest after March 29, 2009, net of
forfeitures
|
26,002 | 30.54 |
4.8
|
31,898 | ||||||||||||
Options
and SARs exercisable at March 29, 2009
|
17,230 | 32.29 |
4.2
|
16,947 |
Shares
|
Weighted
Average Grant Date Fair Value
|
Aggregate
Intrinsic Value
|
||||||||||
Non-vested
share units at December 28, 2008
|
1,523 | $ | 25.38 | $ | 13,983 | |||||||
Granted
|
— | |||||||||||
Vested
|
(214 | ) | 41.62 | 2,166 | ||||||||
Forfeited
|
(96 | ) | 22.33 | |||||||||
Non-vested
share units at March 29, 2009
|
1,213 | 22.75 | 15,868 |
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Share-based
compensation expense by caption:
|
||||||||
Cost
of product revenues
|
$ | 2,374 | $ | 3,629 | ||||
Research
and development
|
6,152 | 8,826 | ||||||
Sales
and marketing
|
2,349 | 3,511 | ||||||
General
and administrative
|
5,455 | 7,260 | ||||||
Total
share-based compensation expense
|
$ | 16,330 | $ | 23,226 | ||||
Share-based
compensation expense by type of award:
|
||||||||
Stock
options and SARs
|
$ | 13,881 | $ | 20,634 | ||||
RSUs
|
2,860 | 1,487 | ||||||
ESPP
|
(411 | ) | 1,105 | |||||
Total
share-based compensation expense
|
$ | 16,330 | $ | 23,226 |
11.
|
Net
Income (Loss) Per Share
|
Three
months ended
|
||||||||
March 29,
2009
|
March 30,
2008
|
|||||||
Numerator
for basic net income (loss) per share:
|
||||||||
Net
income (loss)
|
$ | (207,995 | ) | $ | 10,960 | |||
Denominator
for basic net income (loss) per share:
|
||||||||
Weighted
average common shares outstanding
|
226,529 | 224,518 | ||||||
Basic
net income (loss) per share
|
$ | (0.92 | ) | $ | 0.05 |
Anti-dilutive
shares excluded from net income (loss) per share
calculation
|
54,042 | 47,631 |
12.
|
Commitments,
Contingencies and Guarantees
|
Master Lease Agreements by Execution
Date
|
Lease
Amounts
|
Expiration
|
|||||||
(Yen
in billions)
|
(Dollars
in thousands)
|
||||||||
Flash
Partners
|
|||||||||
December 2004
|
¥ | 8.0 | $ | 82,084 |
2010
|
||||
December 2005
|
4.8 | 48,869 |
2011
|
||||||
June
2006
|
9.4 | 96,486 |
2011
|
||||||
September 2006
|
23.7 | 243,066 |
2011
|
||||||
March
2007
|
11.7 | 119,291 |
2012
|
||||||
February
2008
|
4.8 | 49,027 |
2013
|
||||||
62.4 | 638,823 | ||||||||
Flash
Alliance
|
|||||||||
November
2007
|
24.6 | 251,208 |
2013
|
||||||
June
2008
|
33.3 | 341,090 |
2013
|
||||||
57.9 | 592,298 | ||||||||
Total
guarantee obligations
|
¥ | 120.3 | $ | 1,231,121 |
Annual Installments
|
Payment
of Principal Amortization
|
Purchase
Option Exercise Price at Final Lease Terms
|
Guarantee
Amount
|
|||||||||
(In thousands)
|
||||||||||||
Year
1
|
$ | 312,886 | $ |
─
|
$ | 312,886 | ||||||
Year
2
|
259,322 | 67,432 | 326,754 | |||||||||
Year
3
|
163,642 | 160,171 | 323,813 | |||||||||
Year
4
|
75,447 | 98,781 | 174,228 | |||||||||
Year
5
|
13,807 | 79,633 | 93,440 | |||||||||
Total
guarantee obligations
|
$ | 825,104 | $ | 406,017 | $ | 1,231,121 |
Total
|
1
Year or Less
(9
months)
|
2
- 3 Years
(Fiscal
2010
and
2011)
|
4
–5 Years
(Fiscal
2012
and
2013)
|
More
than 5 Years (Beyond
Fiscal
2013)
|
||||||||||||||||
(In
thousands)
|
||||||||||||||||||||
Operating
leases
|
$ | 32,373 | $ | 6,834 | $ | 14,383 | $ | 6,006 | $ | 5,150 | ||||||||||
Flash
Partners reimbursement for certain fixed costs including
depreciation
|
1,243,310 | (3) | 332,301 | 693,469 | 182,158 | 35,382 | ||||||||||||||
Flash
Alliance reimbursement for certain fixed costs including
depreciation
|
1,318,617 |
(3)
|
300,205 | 623,051 | 353,958 | 41,403 | ||||||||||||||
Toshiba
research and development
|
11,076 |
(3)
|
11,076 | — | — | — | ||||||||||||||
Capital
equipment purchase commitments
|
12,122 | 11,914 | 208 | — | — | |||||||||||||||
Convertible
notes principal and interest
(1)
|
1,273,101 | 9,188 | 98,158 | 23,000 | 1,142,755 | |||||||||||||||
Operating
expense commitments
|
68,352 | 56,340 | 8,939 | 3,073 | — | |||||||||||||||
Noncancelable
production purchase commitments
(2)
|
272,135 |
(3)
|
272,135 | — | — | — | ||||||||||||||
Total
contractual cash obligations
|
$ | 4,231,086 | $ | 999,993 | $ | 1,438,208 | $ | 568,195 | $ | 1,224,690 |
As
of
March 29,
2009
|
||||
(In
thousands)
|
||||
Guarantee
of Flash Partners equipment leases
(4)
|
$ | 638,823 | ||
Guarantee
of Flash Alliance equipment leases
(4)
|
592,298 |
(1)
|
In
May 2006, the Company issued and sold $1.15 billion in aggregate
principal amount of 1% Notes due 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 until calendar year
2013. In November 2006, through its acquisition of msystems
Ltd., (“msystems”), the Company assumed msystems’ $75 million in
aggregate principal amount of 1% Notes due 2035. The Company
will pay cash interest at an annual rate of 1%, payable semi-annually on
March 15 and September 15 of each year. In addition,
the expected maturity of the 1% Notes due 2035 has been adjusted to March
15, 2010 as holders have an option to put these notes on this date and, as
a result, only interest payments through March 15, 2010 have been included
as an obligation.
|
(2)
|
Includes
Toshiba foundries, Flash Ventures, related party vendors and other silicon
source vendor purchase
commitments.
|
(3)
|
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 March 29,
2009.
|
(
4)
|
The
Company’s guarantee obligation, net of cumulative lease payments, is
120.3 billion Japanese yen, or approximately $1.23 billion based
upon the exchange rate at March 29,
2009.
|
Fiscal Year
|
||||
2009
(9 months)
|
$ | 7,501 | ||
2010
|
8,760 | |||
2011
|
6,645 | |||
2012
|
4,982 | |||
2013
|
3,279 | |||
2014
and thereafter
|
5,150 | |||
36,317 | ||||
Sublease
income to be received in the future under noncancelable
subleases
|
(3,944 | ) | ||
Net
operating leases
|
$ | 32,373 |
13.
|
Related
Parties and Strategic Investments
|
March 29,
2009
|
December 28,
2008
|
|||||||
Notes
Receivable
|
$ | 1,076 | $ | 1,120 | ||||
Equity
Investments
|
392 | 482 | ||||||
Operating
lease guarantees
(1)
|
1,231 | 2,095 | ||||||
Maximum
loss exposure
|
$ | 2,699 | $ | 3,697 |
(1)
|
Based
upon the exchange rate at each respective balance sheet
date.
|
14.
|
Litigation
|
15.
|
Condensed
Consolidating Financial Statements
|
Condensed
Consolidating Statements of Operations
For
the three months ended March 29, 2009
|
||||||||||||||||||||||||
Parent
Company
(1)
|
Subsidiary
Issuer
(1)
|
Other
Guarantor Subsidiary
(1)
|
Combined
Non-Guarantor Subsidiaries
(2)
|
Consolidating
Adjustments
|
Total
Company
|
|||||||||||||||||||
(In thousands)
|
||||||||||||||||||||||||
Total
revenues
|
$ | 337,584 | $ | — | $ | 23,125 | $ | 1,022,559 | $ | (723,797 | ) | $ | 659,471 | |||||||||||
Total
cost of revenues
|
405,284 | — | 1,685 | 937,004 | (683,363 | ) | 660,610 | |||||||||||||||||
Gross
profit (loss)
|
(67,700 | ) | — | 21,440 | 85,555 | (40,434 | ) | (1,139 | ) | |||||||||||||||
Total
operating expenses
|
122,054 | — | 18,671 | 62,394 | (38,923 | ) | 164,196 | |||||||||||||||||
Operating
income (loss)
|
(189,754 | ) | — | 2,769 | 23,161 | (1,511 | ) | (165,335 | ) | |||||||||||||||
Total
other income (expense)
|
(6,771 | ) | (1 | ) | 2,250 | (13,155 | ) | (1,016 | ) | (18,693 | ) | |||||||||||||
Income
(loss) before provision for income taxes
|
(196,525 | ) | (1 | ) | 5,019 | 10,006 | (2,527 | ) | (184,028 | ) | ||||||||||||||
Provision
for income taxes
|
7,606 | — | 1,149 | 15,212 | — | 23,967 | ||||||||||||||||||
Equity
in net income (loss) of consolidated subsidiaries
|
(307 | ) | — | (94 | ) | 8,574 | (8,173 | ) | — | |||||||||||||||
Net
income (loss)
|
$ | (204,438 | ) | $ | (1 | ) | $ | 3,776 | $ | 3,368 | $ | (10,700 | ) | $ | (207,995 | ) |
Condensed
Consolidating Statements of Operations
For
the three months ended March 30, 2008
|
||||||||||||||||||||||||
Parent
Company
(1)
(3)
|
Subsidiary
Issuer
(1)
|
Other
Guarantor Subsidiary
(1)
|
Combined
Non-Guarantor Subsidiaries
(2)
|
Consolidating
Adjustments
|
Total
Company
|
|||||||||||||||||||
(In
thousands)
|
||||||||||||||||||||||||
Total
revenues
|
$ | 473,229 | $ | — | $ | 88,373 | $ | 1,097,814 | $ | (809,449 | ) | $ | 849,967 | |||||||||||
Total
cost of revenues
|
258,598 | — | 48,959 | 1,029,006 | (745,377 | ) | 591,186 | |||||||||||||||||
Gross
profit
|
214,631 | — | 39,414 | 68,808 | (64,072 | ) | 258,781 | |||||||||||||||||
Total
operating expenses
|
146,304 | — | 43,859 | 127,755 | (64,049 | ) | 253,869 | |||||||||||||||||
Operating
income (loss)
|
68,327 | — | (4,445 | ) | (58,947 | ) | (23 | ) | 4,912 | |||||||||||||||
Total
other income
|
4,686 | 9 | 3,075 | 6,548 | (433 | ) | 13,885 | |||||||||||||||||
Income
(loss) before provision for (benefit from) income taxes
|
73,013 | 9 | (1,370 | ) | (52,399 | ) | (456 | ) | 18,797 | |||||||||||||||
Provision
for (benefit from) income taxes
|
(972 | ) | — | 3,346 | 5,462 | 1 | 7,837 | |||||||||||||||||
Equity
in net income (loss) of consolidated subsidiaries
|
(72,850 | ) | — | (1,404 | ) | 13,973 | 60,281 | — | ||||||||||||||||
Net
income (loss)
|
$ | 1,135 | $ | 9 | $ | (6,120 | ) | $ | (43,888 | ) | $ | 59,824 | $ | 10,960 |
(1)
|
This
represents legal entity results which exclude any subsidiaries required to
be consolidated under GAAP.
|
(2)
|
This
represents all other legal
subsidiaries.
|
(3)
|
As
adjusted for the adoption of new accounting standards. See Note
1.
|
Condensed
Consolidating Balance Sheets
As
of March 29, 2009
|
||||||||||||||||||||||||
Parent
Company
(1)
|
Subsidiary
Issuer
(1)
|
Other
Guarantor Subsidiary
(1)
|
Combined
Non-Guarantor Subsidiaries
(2)
|
Consolidating
Adjustments
|
Total
Company
|
|||||||||||||||||||
(In thousands)
|
||||||||||||||||||||||||
ASSETS
|
||||||||||||||||||||||||
Current
assets:
|
||||||||||||||||||||||||
Cash
and cash equivalents
|
$ | 659,706 | $ | 62 | $ | 19,106 | $ | 411,205 | $ | — | $ | 1,090,079 | ||||||||||||
Short-term
investments
|
379,127 | — | 15,961 | — | — | 395,088 | ||||||||||||||||||
Accounts
receivable, net
|
21,463 | — | 1,168 | 86,464 | — | 109,095 | ||||||||||||||||||
Inventory
|
68,804 | — | 1,836 | 486,391 | (4,861 | ) | 552,170 | |||||||||||||||||
Other
current assets
|
377,344 | — | 289,839 | 817,059 | (1,243,048 | ) | 241,194 | |||||||||||||||||
Total
current assets
|
1,506,444 | 62 | 327,910 | 1,801,119 | (1,247,909 | ) | 2,387,626 | |||||||||||||||||
Property
and equipment, net
|
192,241 | — | 32,467 | 148,439 | — | 373,147 | ||||||||||||||||||
Other
non-current assets
|
2,679,838 | 73,526 | 24,437 | 1,507,082 | (1,777,856 | ) | 2,507,027 | |||||||||||||||||
Total
assets
|
$ | 4,378,523 | $ | 73,588 | $ | 384,814 | $ | 3,456,640 | $ | (3,025,765 | ) | $ | 5,267,800 | |||||||||||
LIABILITIES
|
||||||||||||||||||||||||
Current
liabilities:
|
||||||||||||||||||||||||
Accounts
payable
|
$ | 53,467 | $ | — | $ | 1,769 | $ | 373,079 | $ | 60 | $ | 428,375 | ||||||||||||
Convertible
short-term debt
|
— | 75,000 | — | — | — | 75,000 | ||||||||||||||||||
Other
current accrued liabilities
|
492,707 | 1,977 | 20,267 | 1,284,200 | (1,313,613 | ) | 485,538 | |||||||||||||||||
Total
current liabilities
|
546,174 | 76,977 | 22,036 | 1,657,279 | (1,313,553 | ) | 988,913 | |||||||||||||||||
Convertible
long-term debt
|
892,314 | — | — | — | — | 892,314 | ||||||||||||||||||
Non-current
liabilities
|
155,840 | — | 10,417 | 52,311 | (9,087 | ) | 209,481 | |||||||||||||||||
Total
liabilities
|
1,594,328 | 76,977 | 32,453 | 1,709,590 | (1,322,640 | ) | 2,090,708 | |||||||||||||||||
EQUITY
|
||||||||||||||||||||||||
Stockholders’
equity
|
2,784,690 | (3,389 | ) | 352,209 | 1,747,050 | (1,703,125 | ) | 3,177,435 | ||||||||||||||||
Non-controlling
interests
|
(495 | ) | — | 152 | — | — | (343 | ) | ||||||||||||||||
Total
equity
|
2,784,195 | (3,389 | ) | 352,361 | 1,747,050 | (1,703,125 | ) | 3,177,092 | ||||||||||||||||
Total
liabilities and equity
|
$ | 4,378,523 | $ | 73,588 | $ | 384,814 | $ | 3,456,640 | $ | (3,025,765 | ) | $ | 5,267,800 |
(1)
|
This
represents legal entity results which exclude any subsidiaries required to
be consolidated under GAAP.
|
(2)
|
This
represents all other legal
subsidiaries.
|
Condensed
Consolidating Balance Sheets
As
of December 28, 2008
|
||||||||||||||||||||||||
Parent
Company
(1)
(3)
|
Subsidiary
Issuer
(1)
|
Other
Guarantor Subsidiary
(1)
|
Combined
Non-Guarantor Subsidiaries
(2)
|
Consolidating
Adjustments
|
Total
Company
|
|||||||||||||||||||
(In thousands)
|
||||||||||||||||||||||||
ASSETS
|
||||||||||||||||||||||||
Current
assets:
|
||||||||||||||||||||||||
Cash
and cash equivalents
|
$ | 376,052 | $ | 66 | $ | 51,806 | $ | 534,137 | $ | — | $ | 962,061 | ||||||||||||
Short-term
investments
|
443,632 | — | 33,664 | — | — | 477,296 | ||||||||||||||||||
Accounts
receivable, net
|
76,733 | — | 1,862 | 43,497 | — | 122,092 | ||||||||||||||||||
Inventory
|
87,612 | — | 1,573 | 511,740 | (2,674 | ) | 598,251 | |||||||||||||||||
Other
current assets
|
1,165,716 | — | 209,861 | 1,424,708 | (2,246,301 | ) | 553,984 | |||||||||||||||||
Total
current assets
|
2,149,745 | 66 | 298,766 | 2,514,082 | (2,248,975 | ) | 2,713,684 | |||||||||||||||||
Property
and equipment, net
|
205,022 | — | 33,478 | 158,487 | — | 396,987 | ||||||||||||||||||
Other
non-current assets
|
2,778,895 | 73,710 | 69,797 | 1,564,731 | (1,665,664 | ) | 2,821,469 | |||||||||||||||||
Total
assets
|
$ | 5,133,662 | $ | 73,776 | $ | 402,041 | $ | 4,237,300 | $ | (3,914,639 | ) | $ | 5,932,140 | |||||||||||
LIABILITIES
|
||||||||||||||||||||||||
Current
liabilities:
|
||||||||||||||||||||||||
Accounts
payable
|
$ | 81,014 | $ | — | $ | 3,379 | $ | 526,809 | $ | (211 | ) | $ | 610,991 | |||||||||||
Other
current accrued liabilities
|
1,105,212 | 2,166 | 21,567 | 1,841,278 | (2,318,205 | ) | 652,018 | |||||||||||||||||
Total
current liabilities
|
1,186,226 | 2,166 | 24,946 | 2,368,087 | (2,318,416 | ) | 1,263,009 | |||||||||||||||||
Convertible
long-term debt
|
879,094 | 75,000 | — | — | — | 954,094 | ||||||||||||||||||
Non-current
liabilities
|
188,825 | — | 17,963 | 75,964 | (8,436 | ) | 274,316 | |||||||||||||||||
Total
liabilities
|
2,254,145 | 77,166 | 42,909 | 2,444,051 | (2,326,852 | ) | 2,491,419 | |||||||||||||||||
EQUITY
|
||||||||||||||||||||||||
Stockholders’
equity
|
2,879,517 | (3,390 | ) | 358,981 | 1,793,249 | (1,587,787 | ) | 3,440,570 | ||||||||||||||||
Non-controlling
interests
|
— | — | 151 | — | — | 151 | ||||||||||||||||||
Total
equity
|
2,879,517 | (3,390 | ) | 359,132 | 1,793,249 | (1,587,787 | ) | 3,440,721 | ||||||||||||||||
Total
liabilities and equity
|
$ | 5,133,662 | $ | 73,776 | $ | 402,041 | $ | 4,237,300 | $ | (3,914,639 | ) | $ | 5,932,140 |
(1)
|
This
represents legal entity results which exclude any subsidiaries required to
be consolidated under GAAP.
|
(2)
|
This
represents all other legal
subsidiaries.
|
(3)
|
As
adjusted for the adoption of new accounting standards. See Note
1.
|
Condensed
Consolidating Statements of Cash Flows
For
the three months ended March 29, 2009
|
||||||||||||||||||||||||
Parent
Company
(1)
|
Subsidiary
Issuer
(1)
|
Other
Guarantor Subsidiary
(1)
|
Combined
Non-Guarantor Subsidiaries
(2)
|
Consolidating
Adjustments
|
Total
Company
|
|||||||||||||||||||
(In thousands)
|
||||||||||||||||||||||||
Net
cash provided by (used in) operating activities
|
$ | 44,570 | $ | (4 | ) | $ | (76,585 | ) | $ | (82,242 | ) | $ | — | $ | (114,261 | ) | ||||||||
Net
cash provided by (used in) investing activities
|
234,755 | — | 43,885 | (40,690 | ) | — | 237,950 | |||||||||||||||||
Net
cash provided by financing activities
|
4,570 | — | — | — | — | 4,570 | ||||||||||||||||||
Effect
of changes in foreign currency exchange rates on cash
|
(241 | ) | — | — | — | — | (241 | ) | ||||||||||||||||
Net
increase (decrease) in cash and cash equivalents
|
283,654 | (4 | ) | (32,700 | ) | (122,932 | ) | — | 128,018 | |||||||||||||||
Cash
and cash equivalents at beginning of period
|
376,052 | 66 | 51,806 | 534,137 | — | 962,061 | ||||||||||||||||||
Cash
and cash equivalents at end of period
|
$ | 659,706 | $ | 62 | $ | 19,106 | $ | 411,205 | $ | — | $ | 1,090,079 |
Condensed
Consolidating Statements of Cash Flows
For
the three months ended March 30, 2008
|
||||||||||||||||||||||||
Parent
Company
(1)
|
Subsidiary
Issuer
(1)
|
Other Guarantor
Subsidiary
(1)
|
Combined
Non-Guarantor Subsidiaries
(2)
|
Consolidating
Adjustments
|
Total
Company
|
|||||||||||||||||||
(In thousands)
|
||||||||||||||||||||||||
Net
cash provided by (used in) operating activities
|
$ | 298,945 | $ | (150 | ) | $ | (1,587 | ) | $ | (78,575 | ) | $ | — | $ | 218,633 | |||||||||
Net
cash provided by (used in) investing activities
|
226,094 | — | (2,403 | ) | (47,300 | ) | — | 176,391 | ||||||||||||||||
Net
cash provided by (used in) financing activities
|
7,231 | — | — | (9,785 | ) | — | (2,554 | ) | ||||||||||||||||
Effect
of changes in foreign currency exchange rates on cash
|
(399 | ) | — | — | (535 | ) | — | (934 | ) | |||||||||||||||
Net
increase (decrease) in cash and cash equivalents
|
531,871 | (150 | ) | (3,990 | ) | (136,195 | ) | — | 391,536 | |||||||||||||||
Cash
and cash equivalents at beginning of period
|
389,337 | 215 | 90,639 | 353,558 | — | 833,749 | ||||||||||||||||||
Cash
and cash equivalents at end of period
|
$ | 921,208 | $ | 65 | $ | 86,649 | $ | 217,363 | $ | — | $ | 1,225,285 |
(1)
|
This
represents legal entity results which exclude any subsidiaries required to
be consolidated under GAAP.
|
(2)
|
This
represents all other legal
subsidiaries.
|
Three
months ended
|
||||||||||||||||
March 29,
2009
|
%
of
Revenues
|
March 30,
2008
|
%
of
Revenues
|
|||||||||||||
(In millions,
except percentages)
|
||||||||||||||||
Product
revenues
|
$ | 588.1 | 89.2 | % | $ | 724.1 | 85.2 | % | ||||||||
License
and royalty revenues
|
71.4 | 10.8 | % | 125.9 | 14.8 | % | ||||||||||
Total
revenues
|
659.5 | 100.0 | % | 850.0 | 100.0 | % | ||||||||||
Cost
of product revenues
|
657.5 | 99.7 | % | 576.6 | 67.8 | % | ||||||||||
Amortization
of acquisition-related intangible assets
|
3.1 | 0.5 | % | 14.6 | 1.7 | % | ||||||||||
Total
cost of product revenues
|
660.6 | 100.2 | % | 591.2 | 69.5 | % | ||||||||||
Gross
profit (loss)
|
(1.1 | ) | (0.2 | %) | 258.8 | 30.5 | % | |||||||||
Operating
expenses
|
||||||||||||||||
Research
and development
|
86.9 | 13.2 | % | 111.4 | 13.1 | % | ||||||||||
Sales
and marketing
|
37.9 | 5.7 | % | 80.2 | 9.5 | % | ||||||||||
General
and administrative
|
38.3 | 5.8 | % | 57.8 | 6.8 | % | ||||||||||
Amortization
of acquisition-related intangible assets
|
0.3 | 0.1 | % | 4.5 | 0.5 | % | ||||||||||
Restructuring
and other
|
0.8 | 0.1 | % | — | — | |||||||||||
Total
operating expenses
|
164.2 | 24.9 | % | 253.9 | 29.9 | % | ||||||||||
Operating
income (loss)
|
(165.3 | ) | (25.1 | %) | 4.9 | 0.6 | % | |||||||||
Other
income (expense)
|
(18.7 | ) | (2.8 | %) | 13.9 | 1.6 | % | |||||||||
Income
(loss) before provision for taxes
|
(184.0 | ) | (27.9 | %) | 18.8 | 2.2 | % | |||||||||
Provision
for income taxes
|
24.0 | 3.6 | % | 7.8 | 0.9 | % | ||||||||||
Net
income (loss)
|
$ | (208.0 | ) | (31.5 | %) | $ | 11.0 | 1.3 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Retail
|
$ | 346.6 | $ | 418.3 | (17.1 | %) | ||||||
OEM
|
241.5 | 305.8 | (21.0 | %) | ||||||||
Product
revenues
|
$ | 588.1 | $ | 724.1 | (18.8 | %) |
Three
months ended
|
||||||||||||||||||||
March 29,
2009
|
%
of Product Revenues
|
March 30,
2008
|
%
of Product Revenues
|
Percent
Change
|
||||||||||||||||
(In millions,
except percentages)
|
||||||||||||||||||||
United
States
|
$ | 214.0 | 36.4 | % | $ | 253.1 | 35.0 | % | (15.5 | %) | ||||||||||
Japan
|
22.7 | 3.9 | % | 49.5 | 6.8 | % | (54.2 | %) | ||||||||||||
Europe
and Middle East
|
151.0 | 25.6 | % | 176.3 | 24.4 | % | (14.4 | %) | ||||||||||||
Asia-Pacific
|
188.2 | 32.0 | % | 229.2 | 31.7 | % | (17.9 | %) | ||||||||||||
Other
foreign countries
|
12.2 | 2.1 | % | 16.0 | 2.1 | % | (22.9 | %) | ||||||||||||
Product
revenues
|
$ | 588.1 | 100.0 | % | $ | 724.1 | 100.0 | % | (18.8 | %) |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
License
and royalty revenues
|
$ | 71.4 | $ | 125.9 | (43.3 | %) |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Product
gross profit (loss)
|
$ | (72.5 | ) | $ | 132.9 | (154.6 | %) | |||||
Product
gross margin (as a percent of product revenues)
|
(12.3 | %) | 18.4 | % | ||||||||
Total
gross margin (as a percent of total revenues)
|
(0.2 | %) | 30.5 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Research
and development
|
$ | 86.9 | $ | 111.4 | (22.0 | %) | ||||||
Percent
of revenue
|
13.2 | % | 13.1 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Sales
and marketing
|
$ | 37.9 | $ | 80.2 | (52.7 | %) | ||||||
Percent
of revenue
|
5.7 | % | 9.5 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
General
and administrative
|
$ | 38.3 | $ | 57.8 | (33.7 | %) | ||||||
Percent
of revenue
|
5.8 | % | 6.8 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Amortization
of acquisition-related intangible assets
|
$ | 0.3 | $ | 4.5 | (93.3 | %) | ||||||
Percent
of revenue
|
0.1 | % | 0.5 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages
)
|
||||||||||||
Restructuring
and other
|
$ | 0.8 | $ | n/a | — | |||||||
Percent
of revenue
|
0.1 | % | n/a |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Interest
income
|
$ | 19.4 | $ | 25.8 | (24.8 | %) | ||||||
Interest
expense
|
(17.0 | ) | (16.2 | ) | 5.1 | % | ||||||
Income
(loss) in equity investments
|
(0.8 | ) | 0.7 | (225.9 | %) | |||||||
Other
income (expense) net
|
(20.2 | ) | 3.6 | (653.3 | %) | |||||||
Total
other income (expense), net
|
$ | (18.6 | ) | $ | 13.9 | (234.6 | %) |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Provision
for income taxes
|
$ | 24.0 | $ | 7.8 | 205.8 | % | ||||||
Effective
tax rate
|
(13.0 | %) | 41.7 | % |
Three
months ended
|
||||||||||||
March 29,
2009
|
March 30,
2008
|
Percent
Change
|
||||||||||
(In millions,
except percentages)
|
||||||||||||
Net
cash provided by (used in) operating activities
|
$ | (114.3 | ) | $ | 218.6 | (152.3 | %) | |||||
Net
cash provided by investing activities
|
238.0 | 176.4 | 34.9 | % | ||||||||
Net
cash provided by (used in) financing activities
|
4.6 | (2.6 | ) | (278.9 | %) | |||||||
Effect
of changes in foreign currency exchange rates on cash
|
(0.3 | ) | (0.9 | ) | (74.2 | %) | ||||||
Net
increase in cash and cash equivalents
|
$ | 128.0 | $ | 391.5 | (67.3 | %) |
Quantitative
and Qualitative Disclosures About Market
Risk
|
Notional
Amount
|
Unrealized
Gain as of
March
29,
2009
|
Change
in Fair Value Due to 10% Adverse Rate Movement
|
||||||||||
Balance
sheet hedge forward contracts sold
|
$ | (1,547,976 | ) | $ | 26,351 | $ | (161,102 | ) | ||||
Balance
sheet hedge forward contracts purchased
|
261,986 | (266 | ) | 23,320 | ||||||||
Total
net forward contracts sold
|
$ | (1,285,990 | ) | $ | 26,085 | $ | (137,782 | ) |
Notional
Amount
|
Unrealized
Gain as of
March
29,
2009
|
Change
in Fair Value Due to 10% Adverse Rate Movement
|
||||||||||
Cash
flow hedge forward contracts purchased
|
$ | 117,864 | $ | 9,632 | $ | (10,498 | ) | |||||
Cash
flow hedge option contracts purchased
|
51,172 | 2,533 | (5,621 | ) | ||||||||
Total
cash flow hedge contracts purchased
|
$ | 169,036 | $ | 12,165 | $ | (16,119 | ) |
Controls
and Procedures
|
Unregistered
Sales of Equity Securities and Use of
Proceeds
|
Defaults
upon Senior Securities
|
Submission
of Matters to a Vote of Security
Holders
|
Other
Information
|
Exhibits
|
SANDISK CORPORATION | |
(Registrant) | |
Dated:
May 7, 2009
|
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)
|
Exhibit
Number
|
Exhibit Title
|
2.1
|
Agreement
and Plan of Merger and Reorganization, dated as of October 20, 2005,
by and among the Registrant, Mike Acquisition Company LLC, Matrix
Semiconductor, Inc. and Bruce Dunlevie as the stockholder representative
for the stockholders of Matrix Semiconductor, Inc.(1)
|
2.2
|
Agreement
and Plan of Merger, dated as of July 30, 2006, by and among the
Registrant, Project Desert, Ltd. and msystems Ltd.(2)
|
3.1
|
Restated
Certificate of Incorporation of the Registrant.(3)
|
3.2
|
Certificate
of Amendment of the Restated Certificate of Incorporation of the
Registrant dated December 9, 1999.(4)
|
3.3
|
Certificate
of Amendment of the Restated Certificate of Incorporation of the
Registrant dated May 11, 2000.(5)
|
3.4
|
Certificate
of Amendment to the Amended and Restated Certificate of Incorporation of
the Registrant dated May 26, 2006.(6)
|
3.5
|
Amended
and Restated Bylaws of the Registrant, as amended to
date.(7)
|
3.6
|
Certificate
of Designations for the Series A Junior Participating Preferred
Stock, as filed with the Delaware Secretary of State on October 14,
1997.(8)
|
3.7
|
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)
|
4.1
|
Reference
is made to Exhibits 3.1, 3.2, 3.3, and 3.4.(3), (4), (5),
(6)
|
4.2
|
Rights
Agreement, dated as of September 15, 2003, between the Registrant and
Computershare Trust Company, Inc.(9)
|
4.3
|
Amendment
No. 1 to Rights Agreement, dated as of November 6, 2006, by and
between the Registrant and Computershare Trust Company,
Inc.(10)
|
10.1
|
Joint
Venture Restructure Agreement, dated as of January 29, 2009, by and among
the Registrant, SanDisk (Ireland) Limited, SanDisk (Cayman) Limited,
Toshiba Corporation, Flash Partners Limited, and Flash Alliance Limited.
(*)(+)
|
10.2
|
Equipment
Purchase Agreement, dated as of January 29, 2009, by and among the
Registrant, SanDisk (Ireland) Limited, SanDisk (Cayman) Limited, Toshiba
Corporation, Flash Partners Limited, and Flash Alliance
Limited.(*)(+)
|
12.1
|
Computation
of Ratio of Earnings to Fixed Charges.(*)
|
31.1
|
Certification
of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.(*)
|
31.2
|
Certification
of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002.(*)
|
32.1
|
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.(**)
|
32.2
|
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.(**)
|
Page
|
||
1.
|
Definitions.
|
2
|
2.
|
Transactions.
|
4
|
3.
|
Capital
Equipment Acquisition Transactions
|
5
|
4.
|
Allocation
of Capacity to Toshiba
|
6
|
5.
|
Modification
of Joint Venture Agreements, Future Technology Transaction and
Expansion of Capacity
|
7
|
6.
|
[***]
|
9
|
7.
|
Foundry
and [***]*
|
9
|
8.
|
Representations
and Warranties of Each of the Parties
|
9
|
9.
|
Additional
Matters
|
10
|
10.
|
Miscellaneous
|
11
|
1.1
|
The
following capitalized terms used in this Agreement shall have the
respective meanings assigned in this
Agreement:
|
Term
|
Defined In
|
3D
Collaboration Agreement
|
Recitals
|
3D
Memory Products
|
Recitals
|
[***]*
|
Section
5.4(b)
|
[***]
*
|
Section
7.3
|
Agreement
|
Heading
|
[***]
*
|
Section
4.1(d)(iii)
|
[***]
*
|
Section
6.1(a)(iii)
|
[***]
*
|
Section
4.1(d)(ii)
|
Cross
License Agreement
|
Recitals
|
Equipment
|
Section
2.1(a)(i)
|
Equipment
Purchase Agreement
|
Recitals
|
FA
|
Heading
|
FA
Agreements
|
Recitals
|
FA
Master Agreement
|
Recitals
|
[***]
*
|
Section
5.4(a)(i)
|
Foundry
Agreement
|
Recitals
|
FP
|
Heading
|
FP
Agreements
|
Recitals
|
FP
Master Agreement
|
Recitals
|
Governmental
Authority
|
Section
8.3
|
[***]
*
|
Schedule
4.1(a)
|
[***]
*
|
Section
4.1(a)
|
[***]
*
|
Schedule
4.1(a)
|
[***]
*
|
Recitals
|
Joint
Venture Agreements
|
Recitals
|
Joint
Ventures
|
Heading
|
JV
|
Heading
|
[***]
*
|
Schedule
4.1(b)(ii)
|
[***]
*
|
Schedule
4.1(b)(i)
|
[***]
*
|
Schedule
4.1(b)(i)
|
[***]*
|
Schedule
4.1(b)(ii)
|
Lien
|
Section
8.3
|
[***]
*
|
Section
4.1(d)(iv)
|
Parties
|
Heading
|
Person
|
Section
8.3
|
SanDisk
|
Heading
|
SanDisk
Cayman
|
Heading
|
SanDisk
Corporation
|
Heading
|
SanDisk
Ireland
|
Heading
|
[***]
*
|
Section
7.2(a)
|
[***]
*
|
Section
7.2(b)
|
[***]
*
|
Section
5.6(a)
|
Toshiba
|
Heading
|
[***]
*
|
Schedule
4.1(b)(ii)
|
[***]
*
|
Section
5.2(a)
|
[***]
*
|
Schedule
4.1(b)(i)
|
[***]
*
|
Schedule
4.1(b)(i)
|
[***]
*
|
Schedule
4.1(b)(ii)
|
[***]
*
|
Schedule
4.1(b)(i)
|
[***]
*
|
Section
4.1(d)(i)
|
Transaction
Agreements
|
Section
2.1(a)
|
Transactions
|
Section
2.1(a)
|
[***]
*
|
Section
5.4(a)(ii)
|
[***]
*
|
Section
4.1(d)(i)
|
1.2
|
Interpretation
. Whenever
the words “include,” “includes” or “including” are used in this Agreement,
they shall be deemed, as the context indicates, to be followed by the
words “but (is/are) not limited to.” Wherever in this Agreement
words indicating the plural number appear, such words will be considered
as words indicating the singular number and vice versa where the context
indicates the propriety of such
use.
|
1.3
|
The
term “
Rules of
Construction and Documentary Convention
” as used in this Agreement
means those certain Rules of Construction and Documentary Convention
attached to the FP Master Agreement and the FA Master Agreement, as
applicable, commencing from Section 2.1
therein.
|
1.4
|
The
term “
R/W
” as used in
this Agreement refers to certain 3D Memory Products and has the meaning
set forth in the 3D Collaboration
Agreement.
|
1.5
|
The
term “
NAND
” as used
in this Agreement means NAND Flash Memory
Products.
|
1.6
|
The
term
[***]*
as
used in this Agreement means (i) the requirements of
[***]
* of the
FP Master Agreement, (ii) the requirements of
[***]
* of the
FA Master Agreement and (iii) the
[***]
*.
|
1.7
|
The
term “
Y3
Facility
” as used in this Agreement means that facility located at
Yokkaichi, Mie, Japan which, following the consummation of the
Transactions, shall consist of FP equipment and production and Toshiba
equipment and production.
|
1.8
|
The
term “
Y4
Facility
” as used in this Agreement means that facility located at
Yokkaichi, Mie, Japan which, following the consummation of the
Transactions, shall consist of FA equipment and production and Toshiba
equipment and production.
|
1.9
|
Capitalized
terms not otherwise set forth in this
Section
1
shall have
the meanings assigned to them in the Equipment Purchase Agreement, the FP
Agreements, the FA Agreements and/or the 3D Collaboration Agreement as the
context requires.
|
2.1
|
Transactions and
Deliveries
.
|
(a)
|
Basic
Transactions
. Subject to and on the terms and conditions
set forth in this Agreement, the Equipment Purchase Agreement, the Foundry
Agreement, any amendments to the Joint Venture Agreements including any
Joint Venture equipment lease agreements and other agreements
signed of even
date herewith (collectively, the “
Transaction
Agreements
”) the Parties agree to effect the transactions set forth
in this
Section
2.1
(the “
Transactions
”), all
of which shall be considered binding as of, and to occur on, the date
hereof unless the date for actual performance is otherwise
stipulated:
|
(i)
|
Committed Capacity
Transfer
. Toshiba shall acquire approximately
[***]
* of the
current production capacity of each of FP and FA for NAND Memory Products
as set forth in Article 4 below;
and
|
(ii)
|
Toshiba Equipment
Purchase
. Upon the terms and conditions set forth in the
Equipment Purchase Agreement, Toshiba shall acquire owned equipment
representing approximately
[***]
* of the
capacity of each of FP and FA and leased equipment representing
approximately
[***]
* of the
capacity of each of FP and FA (the “
Equipment
”).
|
(iii)
|
Foundry
Option
. Toshiba and SanDisk shall enter into the Foundry
Agreement pursuant to which, until
[***]
*,
SanDisk will have the right to purchase NAND Memory Products on the terms
and conditions set forth therein.
|
(iv)
|
SanDisk Conversion
Option
. Subject to Toshiba’s consent, to be granted or
withheld at the time of exercise, SanDisk will have the option to cause FP
and FA to reacquire a portion of the production capacity and Equipment
being transferred to Toshiba pursuant to this Agreement and the Equipment
Purchase Agreement, as set forth in
Section
7.2
below.
|
(v)
|
Amendment to Joint
Venture Agreements
. The Parties agree that the Joint
Venture Agreements are hereby amended to the extent necessary to conform
to the provisions set forth herein.
|
(vi)
|
Transfer of Additional
Capacity to Toshiba
. The Parties may, if mutually agreed
in
[***]*
,
effect the transfer to Toshiba of additional capacity and owned equipment
as provided in and subject to
Section
7.3
.
|
(vii)
|
JV Ownership Interest
Remains Unchanged
. For the avoidance of doubt, nothing
in this Agreement shall affect the Parties’ equity interests in each of FP
and FA (i.e. 50.1% for Toshiba and 49.9% for
SanDisk).
|
(b)
|
Deliveries
. Each
of the relevant Parties agrees to make the following deliveries to the
other Parties at the time of the execution of this
Agreement:
|
(i)
|
Counterpart
originals of this Agreement duly executed by each of the Parties as of the
date hereof concurrently with the execution of this
Agreement;
|
(ii)
|
Counterpart
originals of the Equipment Purchase Agreement duly executed as of the date
hereof concurrently with the execution and delivery of this Agreement;
and
|
(iii)
|
Counterpart
originals of the Foundry Agreement (as provided for in Section 7.1 below)
duly executed by the Parties as of the date hereof concurrently with the
execution and delivery of this
Agreement.
|
3.1
|
Capital Equipment
Purchase by Toshiba
. Upon the terms and subject to the
conditions set forth in the Equipment Purchase Agreement, Toshiba shall
acquire the Equipment.
|
3.2
|
Use of Proceeds by
Joint Ventures
.
The Parties shall
cause each of FP and FA upon receipt of proceeds to payoff or pay down (on
an equal pro-rata basis) loans from its shareholders with the proceeds
realized from the sale of the Equipment. Subject
to
|
4.1
|
Allocation of Current
Capacity to Toshiba; Allocation of Fab Lot
Output
.
|
(a)
|
Initial Toshiba
Capacity
. Pursuant to the implementation schedule set
forth in Section 4.1(c) below, the Parties shall allocate to Toshiba,
and Toshiba shall acquire, approximately
[***]*
of the
pre-restructuring production capacity (and related Equipment) from each of
FP and FA,
[***]
*. Such
initial allocation in the percentages set forth on
Schedule 4.1(a)
shall be referred to herein as the
[***]
*.
|
(b)
|
Output
Allocation
.
|
(i)
|
Except
as described in Section 4.1(b)(ii), the actual monthly lot output from
each of the Y3 Facility and the Y4 Facility shall be allocated between
Toshiba and FP or FA, as applicable, based on
[***]
* and
the applicable
[***]
*, as
set forth in
Schedule
4.1(b)(i)
.
|
(ii)
|
During
any month during which the planned production of any of FP, FA or the
Toshiba Capacity, as applicable,
[***]
*, as
defined in
Schedule
4.1(b)(i)
,
the Parties
(as between the Joint Ventures and Toshiba) shall be
[***]
*.
|
(c)
|
Implementation
Schedule
. The capacity associated with each Equipment
transfer contemplated by the Equipment Purchase Agreement shall transfer
at the time of Toshiba’s acquisition of the related Equipment, subject,
however, to Section 3.6 of the Equipment Purchase
Agreement. Subject to Sections 3.6 and 3.7(a) of the Equipment
Purchase Agreement, depreciation and lease costs associated with the
transferred equipment or capacity shall be borne by Toshiba immediately
after the date of Toshiba’s acquisition of the related
Equipment.
|
(d)
|
Work in Process
Inventory
.
[***]
*.
|
(i)
|
[***]
*
.
|
(ii)
|
[***]
*.
|
(iii)
|
[***]
*.
|
(iv)
|
[***]
*.
|
5.1
|
Operations
.
|
(a)
|
No Operational Effects
from Toshiba Capacity
.
|
(i)
|
Except
as otherwise provided in or necessary to implement the Transaction
Agreements, the FA, FP and Toshiba Capacity equipment in the Y3 and Y4
Facilities will be
[***]
*. There
will be no change in the fabs’ operating methods, engineering, production
control processes, access, financial, investment or operational
transparency, or otherwise as a result of the inclusion of the Toshiba
Capacity in the Y3 Facility and the Y4
Facility.
|
(ii)
|
For
the Toshiba Capacity in the Y3 and Y4 Facility, Toshiba will provide to
the applicable Joint Venture
[***]
*,
including but not limited to
[***]
*. Notwithstanding
the foregoing, Toshiba shall have sole discretion over the use and
disposition of the equipment representing the Toshiba Capacity, provided
[***]*
.
|
(b)
|
Improvements Not
Related to Expansion
. To the extent practical and
commercially feasible, each of the Parties shall use commercially
reasonable efforts to enhance the
[***]
* of the
Y3 and Y4 Facilities.
|
(c)
|
Incentives
. All
governmental incentives (financial or otherwise) received with respect to
the Y4 Facility (including any Toshiba Capacity) shall be disclosed and
the Parties will discuss such incentives and the sharing thereof based on
the type of incentives.
|
5.2
|
Expansion and
Transition of Capacity
.
|
(a)
|
General Rule;
[***]
*
Expansion.
Except as provided in this Section, the terms
of Section 6.3(c)(iv) of the FP Master Agreement and Section 6.5(c)(iv) of
the FA Master Agreement will apply to
[***]
* within
FP, FA and other facilities.
[***]
*.
|
(b)
|
Technology
Transitions
. The Joint Ventures shall be given priority
for any technology transition. Should either FP or FA not
accept any proposal for a NAND technology transition, the non-rejecting
Party (as between SanDisk and Toshiba) shall be able to implement such
technology transition on its capacity and
[***]
*. Subject
to the foregoing priority granted to the Joint Ventures, nothing in this
Agreement shall in any way limit Toshiba’s ability to implement NAND
technology transitions within the Toshiba Capacity, which shall be made in
Toshiba’s sole discretion.
|
5.3
|
Effect on
[***]
*; Priority;
Proprietary Products
.
|
(a)
|
[***]
*.
|
(b)
|
Priority
.
|
(i)
|
Section
6.4(a)(ii) of the FP Master Agreement and Section 6.6(a)(ii) of the FA
Master Agreement are each hereby amended such that each of Sub-section
6.4(a)(ii)(B) in the FP Master Agreement and Sub-section 6.6(a)(ii)(C) in
the FA Master Agreement shall be replaced
with
|
(ii)
|
Section 6.4(a)(i)
of the FP Master Agreement and Section 6.6(a)(i) of the FA Master
Agreement are each hereby amended such that each of
Sub-section 6.4(a)(i)(C) in the FP Master Agreement and
Sub-section 6.6(a)(i)(D) in the FA Master Agreement shall be replaced
with
|
(c)
|
Proprietary
Products
.
[***]
*.
|
5.4
|
Effect on
Costs
.
|
(a)
|
[***]
*
Manufacturing
Costs
. All costs of manufacturing shall be
[***]
*.
|
(i)
|
[***]
*.
|
(ii)
|
[***]
*.
|
(b)
|
[***]
*.
|
(c)
|
The
Joint Ventures shall not be responsible or invoiced for
[***]
*. Any
other
[***]
* shall
be subject to mutual good faith discussion and agreement regarding the
terms by which
[***]
* shall
be borne by the applicable Joint
Venture.
|
(d)
|
Cost
benefits associated with
[***]
* will
be discussed by the Parties
[***]
* and
mutually agreed by the Parties.
|
5.5
|
[***]
*.
|
(a)
|
For
[***]
*
for the Y3 or Y4 Facility that are owned by the applicable Joint Venture
as of the date hereof,
[***]
*,
within
[***]
* of
each Closing under the Equipment Purchase Agreement,
[***]
*.
|
(b)
|
For
[***]
*
for the Y3 or Y4 Facility that will be
[***]
*, the
Parties agree that:
|
(i)
|
For
such
[***]
*
related to
[***]
*;
and
|
(ii)
|
Each
Party (as between Toshiba and SanDisk) shall be solely responsible for the
purchase of
[***]
*.
|
5.6
|
[***]
*.
|
(a)
|
On
[***]
*,
Toshiba shall sell to the applicable Joint Venture, and such Joint Venture
shall purchase from Toshiba, the portion of the then existing
[***]
*. Payment
for such
[***]
* shall
be made by SanDisk and Toshiba to the applicable Joint Ventures, pursuant
to invoices from the Joint Ventures, no later than
[***]
*, and
the Joint Ventures
[***]
*.
|
(b)
|
[***]
*, shall
sell to each of the Joint Ventures, and each of the Joint Ventures shall
purchase
[***]
* and
[***]
*
allocable to such Joint Venture
[***]
*. Payment
for such
[***]
*
shall be made by
SanDisk and Toshiba to the applicable Joint Venture, pursuant to a payment
mechanism and schedule to be agreed between the Parties, provided that
payment shall occur
[***]
*.
|
7.1
|
Foundry
Option.
Toshiba and SanDisk shall enter into the Foundry
Agreement
which shall
provide for a foundry arrangement between the Parties until
[***]
*.
|
7.2
|
Conversion
Option.
|
(a)
|
[***]
*.
|
(b)
|
[***]
*.
|
(c)
|
[***]
*.
|
7.3
|
[***]*
.
|
8.1
|
Organization and
Standing
. It is duly organized and validly existing and,
where applicable, in good standing under the laws of the jurisdiction in
which it is organized.
|
8.2
|
Authority;
Enforceability
. It has the requisite corporate or
equivalent power and authority to enter into this Agreement, to execute
any certificates or other instruments to be executed by it in connection
with the Transactions, and otherwise carry out the
Transactions. All corporate or equivalent proceedings required
to be taken by it to authorize the execution, delivery and performance of
this Agreement, and any such certificates and instruments, and the
consummation of the Transactions, have been or will be as of the Closing
properly taken. This Agreement has been duly and validly
executed and delivered by it and constitutes a valid and binding
obligation of it, enforceable against it in accordance with its
terms.
|
8.3
|
No
Conflict
. The execution, delivery and performance of
this Agreement by it do not and will not (a) breach, violate or
conflict with any provision of its charter documents as amended to date,
(b) conflict with or violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to it, or
(c) result in the creation or imposition of any Lien (other than as
may result from the actions contemplated by the Equipment Purchase
Agreement)on any of the Purchased Assets. No consent, approval
or authorization of, or filing with, any Governmental Authority, or any
other Person, is required to be made or obtained by it in connection with
the execution, delivery and performance by it of this Agreement and the
consummation by it of the Transactions. The term “
Lien
” as used
in this Agreement means any lien, pledge, hypothecation, security
interest, claim, lease, charge, option, right of first refusal, transfer
restriction, encumbrance or any other restriction or limitation
whatsoever. The term “
Person
” as used
in this Agreement means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Authority or other
entity. The term “
Governmental
Authority
” as used in this Agreement means any court, tribunal,
arbitrator or any government or political subdivision thereof, whether
foreign, federal, state or county, or any agency, authority, official or
instrumentality of such government or political
subdivision.
|
8.4
|
Brokers’ or Finders’
Fees
. It has not incurred and will not incur, directly
or indirectly, any liability for brokerage or finders’ fees or agents’
commissions or any similar charges in connection with this Agreement or
any certificates and instruments executed or contemplated to be executed
by the Parties. It has not taken any action or entered into any
agreement or understanding that will cause any other Party to incur any of
the foregoing liabilities.
|
8.5
|
Litigation
. There
is no Action pending, or, to its knowledge, threatened, or directly
relating to the Transactions and which, if successful, would materially
impair such Party’s ability to consummate the
Transactions. There is no judgment, order, writ or decree that
substantially restrains its ability to consummate the
Transactions.
|
9.1
|
[***]*
.
|
9.2
|
Insurance
. Toshiba
shall continue to maintain insurance policies as contemplated under
Section 7.5(d) of the FP Master Agreement and Section 7.5(d) of
the FA Master Agreement covering the entire business of the Joint Ventures
and the Toshiba Capacity, provided that
[***]
*.
|
9.3
|
Environmental
Liabilities
. The Environmental Indemnification
Agreements with respect to FA and FP in effect shall continue in effect
without amendment, except that, beginning on the earlier of
[***]
* (i)
Toshiba shall be responsible for its share of liability for Environmental
Costs (as defined in the Environmental Indemnification Agreements)
[***]*
FA
and/or FP, as applicable, at the time of the contamination or release, if
determinable, and (ii) if the time of such contamination or release is not
determinable, the liability for Environmental Costs shall be allocated
[***]
*
of NAND Flash production through the time of discovery of such
contamination or release.
|
9.4
|
Further Assurances;
Cooperation
.
Each
of the Parties shall from time to time, at the reasonable request of the
other Parties, and without further consideration (unless otherwise
provided for under this Agreement), execute and deliver such instruments,
cooperate and take such actions (as a member of the FP and FA joint
ventures or otherwise) as may be reasonably necessary to effectuate the
Transactions.
|
10.1
|
Entire
Agreement
. This Agreement, together with the exhibits,
schedules, appendices and attachments hereto, the Joint Venture Agreements
(as and if amended hereby) and the other Transaction Agreements constitute
the entire agreement of the Parties to this Agreement with respect to the
subject matter hereof and supersede all prior written and oral agreements
and understandings with respect to such subject
matter.
|
10.2
|
Precedence
.
The terms and
provisions of this Agreement are binding on the Parties. To the
extent that a provision in this Agreement or another Transaction
Agreement
expressly
conflicts with a Joint Venture Agreement, then the provisions of this
Agreement shall control; provided however, that unless otherwise provided
herein, the provisions of the Joint Venture Agreements remain in
effect.
|
10.3
|
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.
|
10.4
|
Remedies; Rules of
Construction and Documentary Convention
. The Parties
agree that the Rules of Construction and Documentary Convention set forth
in each of the Joint Venture Agreements shall apply in the event that a
dispute arises out of or relates to this Agreement or a particular Joint
Venture Agreement.
|
Page
|
||
Definitions
and Interpretation
|
1
|
2.
|
The
Transaction
|
3
|
3.
|
Purchase
Price; Closing
|
6
|
4.
|
Representations
and Warranties of Each of the Parties
|
10
|
5.
|
Representations
and Warranties of the Sellers
|
11
|
6.
|
Covenants
|
12
|
7.
|
Conditions
Precedent to the Sellers’ Obligations at the First
Closing
|
13
|
8.
|
Conditions
Precedent to Toshiba’s Obligations at the First
Closing
|
14
|
9.
|
Conditions
Precedent to the Subsequent Closings
|
15
|
10.
|
Indemnification
|
15
|
11.
|
Termination
of the Agreement
|
16
|
12.
|
General
Provisions
|
16
|
|
Attachments:
|
1.1
|
Certain
Definitions
. The following capitalized terms used in
this Agreement shall have the respective meanings assigned in this
Agreement:
|
Closing
|
Section
3.2(a)
|
Closing
Date
|
Section
3.2(c)
|
Equipment
|
Section 2.1
|
Equipment
Leases
|
Section
2.1(b)(ii)
|
Equipment
Purchase Closing
|
Section
3.2(b)
|
Equipment
Transactions
|
Section
3.2(a)
|
Excluded
Assets
|
Section 2.2
|
Excluded
Liabilities
|
Section 2.3
|
FA
|
Heading
|
FA
Equipment
|
Section
2.1(b)(ii)
|
FA
Leased Equipment
|
Section 2.1(b)(ii)
|
FA
Leases
|
Section 2.1(b)(ii)
|
FA
Owned Equipment
|
Section 2.1(b)(i)
|
FA
Purchase Price
|
Section 3.1(a)(ii)
|
FA
Purchased Assets
|
Section 2.1(b)
|
FP
|
Heading
|
FP
Equipment
|
Section
2.1(a)(ii)
|
FP
Leased Equipment
|
Section 2.1(a)(ii)
|
FP
Leases
|
Section 2.1(a)(ii)
|
FP
Owned Equipment
|
Section 2.1(a)(i)
|
FP
Purchase Price
|
Section 3.1(a)(i)
|
FP
Purchased Assets
|
Section 2.1(a)
|
Governmental
Authority
|
Section 2.3
|
[***]*
|
Section
10.3
|
Indemnifying
Party
|
Section 10.1
|
JVRA
|
Recitals
|
Lease
Closing
|
Section 3.2(b)
|
Lease
Transfer Costs
|
Section
3.7(a)
|
Leased
Equipment
|
Section 2.1(b)(ii)
|
Lien
|
Section 4.4
|
[***]
*
|
Section
8.5
|
Material
Adverse Effect
|
Section
8.10
|
Material
Consent
|
Section 6.3
|
[***]
*
|
Section
3.1
|
Owned
Equipment
|
Section 2.1
|
Party
|
Heading
|
Permit
|
Section 5.2
|
Person
|
Section 4.4
|
1.2
|
Interpretation
. Whenever
the words “include,” “includes” or “including” are used in this Agreement,
they shall be deemed, as the context indicates, to be followed by the
words “but (is/are) not limited to.” Wherever in this Agreement
words indicating the plural number appear, such words will be considered
as words indicating the singular number and vice versa where the context
indicates the propriety of such
use.
|
1.3
|
The
terms “
Y3
Facility
” and “
Y4 Facility
” as
used in this Agreement shall have the meanings assigned to them in the
JVRA.
|
2.1
|
Purchased
Assets
. Subject to the terms and conditions of this
Agreement, and on the basis of the representations, warranties, covenants
and agreements set forth herein, at the applicable Closing, the Sellers
shall sell, transfer, convey, assign and deliver to Toshiba, and Toshiba
shall purchase from the Sellers, all right, title and interest in and to
the following assets (collectively, the “
Purchased
Assets
”):
|
(a)
|
FP Purchased
Assets
. To be purchased from FP (collectively, the
“
FP Purchased
Assets
”):
|
(i)
|
FP Owned
Equipment
. The machinery, equipment and other assets
described on the attached
Schedule
2.1(a)(i)
,
[***]
*
which shall represent approximately
[***]*
of the
wafer output capacity of FP and which shall have been calculated from the
list of assets owned by FP (the “
FP Owned
Equipment
”);
|
(ii)
|
FP Leased
Equipment
. All rights and obligations of FP in
connection with the machinery, equipment and other assets,
[***]
* set
forth on attached
Schedule
2.1(a)(ii)
,
which shall represent approximately
[***]
* of the
wafer output capacity of FP (the “
FP Leased
Equipment
” and together with the FP Owned Equipment, the “
FP Equipment
”),
that are subject to the leases specified thereon (the “
FP Leases
”), it
being understood that the assignment and assumption of such rights and
obligations shall be effected as set forth in Section 3.6;
and
|
(iii)
|
FP
Documents
. All books, records and materials in the
possession or control of FP and that are reasonably necessary or
appropriate for Toshiba to operate the FP Equipment in substantially the
same manner as operated by FP as of the date of this Agreement and as of
each Closing Date, including vendor agreements, title documents, user
manuals, operating guides, bills of materials, records, maintenance
schedules and records, supplier and other vendor ordering information and
records, warranties for both materials and equipment purchased and
products sold, and all other operational, commercial and technical
information related to the FP
Equipment.
|
(b)
|
FA Purchased
Assets
. To be purchased from FA (collectively, the
“
FA Purchased
Assets
”):
|
(i)
|
FA Owned
Equipment
. The machinery, equipment and other assets
described on the attached
Schedule
2.1(b)(i)
,
[***]
*
which shall represent approximately
[***]*
of the
wafer output capacity of FA and which shall have been calculated from the
list of assets owned by FA (the “
FA Owned
Equipment
”);
|
(ii)
|
FA Leased
Equipment
. All rights and obligations of FA in
connection with the machinery, equipment and other assets,
[***]
* set
forth on attached
Schedule
2.1(b)(ii)
,
which shall represent approximately
[***]
* of the
wafer output capacity of FA (the “
FA Leased
Equipment
” and, together with the FA Owned Equipment, the “
FA Equipment
”
or together with the FP Leased Equipment, the “
Leased
Equipment
”), that are subject to the leases specified thereon (the
“
FA
Leases
” and, together the with FP Leases, the “
Equipment
Leases
”), it being understood that the assignment and assumption of
such rights and obligations shall be effected as set forth in Section 3.6;
and
|
(iii)
|
FA
Documents
. All books, records and papers in the
possession or control of FA and that are reasonably necessary for Toshiba
to operate the FA Equipment in substantially the same manner as operated
by FA as of the date of this Agreement and as of each Closing Date,
including vendor agreements, title documents, user manuals, operating
guides, bills of materials, records, maintenance schedules and records,
supplier and other vendor ordering information and records, warranties for
both materials and equipment purchased and products sold, and all other
operational, commercial or technical information related to the FA
Equipment.
|
(c)
|
Tool Selection
Methodology; Substitution of Purchased
Assets
.
|
(i)
|
To
the extent that the Parties determine that the purchase of Owned Equipment
or assignment and assumption of the Equipment Leases with respect to
Leased Equipment (1) requires consents of third parties that cannot be
obtained in a timely manner or without undue difficulty or expense, (2)
would not release SanDisk from the guaranty obligations related to the
Leased Equipment, or (3) involves Equipment which, prior to the relevant
Closing, is materially damaged, the Parties shall endeavor in good faith
to promptly reach agreement on such adjustments to
Schedules
2.1(a)(i)
,
2.1(a)(ii)
,
2.1(b)(i)
and/or
2.1(b)(ii)
as
are necessary to address the foregoing
issues.
|
2.2
|
Excluded
Assets
. Notwithstanding anything to the contrary set
forth in this Agreement, except for the Purchased Assets, the Sellers
shall not transfer at Closing any other assets of the Sellers (such
assets, the “
Excluded
Assets
”), which Excluded Assets shall be retained by the
Sellers.
|
2.3
|
Excluded
Liabilities
. Notwithstanding anything to the contrary
set forth in this Agreement, except for the Assumed Liabilities, the
Sellers shall not transfer at Closing any liability for any contracts,
agreements, commitments or liabilities of the Sellers or any SanDisk Party
whatsoever, including any of the following (collectively, the “
Excluded
Liabilities
”), which Excluded Liabilities shall be retained by the
Sellers and/or the SanDisk Parties as
applicable:
|
(a)
|
any
liability relating to, arising out of or incurred in connection with the
Purchased Assets, or use, operation or possession thereof, prior to the
Closing; and
|
(b)
|
any
trade accounts payable, accrued liability or other liability of the
Sellers as of the Closing whether or not such amounts are known or payable
on or prior to the Closing;
|
(c)
|
except
as expressly provided for in Sections 3.1(a) and 3.7 below, any
Taxes or similar charges that may become payable in any jurisdiction by
the Sellers by reason of the sale and transfer of the Purchased Assets
pursuant hereto, or arising from or relating to Sellers’ receipt of the FP
Purchase Price or FA Purchase Price (or relief from any Assumed
Liability); and
|
(d)
|
any
liability relating to, arising out of or incurred in connection with any
final nonappealable decision arising out of any suit, litigation,
arbitration or administrative proceeding before any Governmental Authority
(all “
Actions
”) prior
to the Closing or initiated after the Closing but based in whole or part
on an act or omission of a Seller,
|
2.4
|
Assumed
Liabilities
. Subject to the terms and conditions of this
Agreement, at each Closing, each Seller shall assign to Toshiba, and
Toshiba shall assume, the related Assumed Liabilities (as defined below).
Thereafter, Toshiba shall pay and discharge all such Assumed Liabilities
as and when such Assumed Liabilities become due and owing. The
term “
Assumed
Liabilities
” as used in this Agreement means only those liabilities
which relate to, arise out of or are incurred in connection with the
Purchased Assets on or after the Closing at which such assets are
transferred, including the Equipment Leases to the extent assigned, but
not including any Excluded Liabilities and not including any liabilities
in connection with the Purchased Assets that are specifically allocated to
the Sellers or the SanDisk Parties under other agreements relating to the
operation of the Y3 Facility and the Y4
Facility.
|
3.1
|
Purchase
Price
.
|
(a)
|
Timing of Purchase
Price Payment by Toshiba
. Subject to the terms and
conditions of this Agreement, as full consideration for the sale,
assignment, transfer and delivery of the Owned Equipment by the Sellers to
Toshiba, and the execution and delivery by the Sellers of this Agreement
and any and all certificates and instruments executed or contemplated to
be executed by SanDisk in connection with the Equipment Purchase Closing,
Toshiba shall deliver
[***]
*, by
wire transfer of immediately available funds to an account designated by
FP or FA, as applicable, an amount equal
to:
|
(i)
|
for
FP,
[***]*
(the
“
FP Purchase
Price
”);
and
|
(ii)
|
for
FA,
[***]
* (the
“
FA Purchase
Price
”);
|
(b)
|
[***]
* by Joint
Venture
. No later than
[***]
*, each
Seller shall transfer the entire FP Purchase Price and FA Purchase Price,
as applicable and
[***]
*, to
each of SanDisk and Toshiba (with each of SanDisk and Toshiba receiving
50% of the applicable purchase price), by wire transfer of immediately
available funds to accounts designated by SanDisk and Toshiba,
[***]
*. SanDisk
and Toshiba each agree to provide acknowledgment of such repayment to each
Seller.
|
3.2
|
Closing
.
|
(a)
|
The
transactions contemplated by this Agreement (the “
Equipment
Transactions
”) shall be consummated at a series of closings (each a
“
Closing
”).
|
(b)
|
At
each Closing, Toshiba will either purchase Owned Equipment (the “
Equipment Purchase
Closing
”) or acquire rights and obligations of the Sellers in
connection with the Leased Equipment or, as applicable, the Equipment
Leases, each as provided in Section 3.6 below (a “
Lease
Closing
”).
|
(c)
|
Provided
that all of the conditions to a Closing have been met or waived in writing
by the Party that has the benefit thereof, each Closing will take place on
the date set forth on
Schedule
3.2
, or at such
other place, date and time as the Parties mutually agree. As
set forth on
Schedule
3.2
, the first
Closing is contemplated to be a Lease Closing. As used in this
Agreement, the term “
Subsequent
Closing
” shall mean each of (i) any Lease Closing after the first
Closing and (ii) the Equipment Purchase Closing (the date of each such
Closing a “
Subsequent Closing
Date
,” and the first Closing Date together with the Subsequent
Closing Dates, the “
Closing
Dates
”).
|
3.3
|
Deliveries by the
Sellers
. At each Closing, the Sellers shall (i) take all steps
necessary to place Toshiba in actual possession and operating control of
all Purchased Assets to be transferred at such Closing, and
(ii) deliver the following items, duly executed by the Sellers, in
each case in form and substance acceptable to
Toshiba:
|
(a)
|
FP Assignment and
Assumption Agreements and Bill of
Sal
e.
|
(i)
|
At
each Closing, an Assignment and Assumption Agreement executed by FP
covering any rights and obligations under any FP Leases and other
agreements to be transferred at such Closing, substantially in the form of
attached
Exhibit
A
.
|
(ii)
|
At
the Equipment Purchase Closing, a Bill of Sale executed by FP covering all
of the FP Owned Equipment that is to be transferred at such Closing,
substantially in the form of attached
Exhibit B
.
|
(b)
|
FA Assignment and
Assumption Agreement and Bill of
Sale
.
|
(i)
|
At
each Closing, an Assignment and Assumption Agreement executed by FA
covering any rights and obligations under any FA Leases and other
agreements
to be transferred at such Closing, substantially in the form of attached
Exhibit C
.
|
(ii)
|
At
the Equipment Purchase Closing, a Bill of Sale executed by FA covering all
of the FA Owned Equipment that is to be transferred at such Closing,
substantially in the form of attached
Exhibit D
.
|
(c)
|
Sellers’
Invoices
. An invoice issued to Toshiba by each of FA and
FP, in each case dated the applicable Closing Date and requiring payment
of the FA Purchase Price and the FP Purchase Price, respectively, not
later than
[***]
*
following such Closing
Date.
|
(d)
|
Other Conveyance
Instruments
. Such other instruments of sale, transfer,
conveyance and assignment as Toshiba deems are necessary or useful to
transfer all right, title and interest in all Purchased Assets to be
transferred at such Closing to Toshiba, or to evidence the
same.
|
(e)
|
Closing Condition
Documents
. All of the documents provided for in
Articles 8 and, as applicable, 9
below.
|
3.4
|
Deliveries by
Toshiba
. At the Closing, Toshiba shall deliver the
following items, duly executed by Toshiba, in each case in form and
substance acceptable to the
Sellers:
|
(a)
|
Assumption
Instruments
. Such other instruments of assumption as are
reasonably necessary for Toshiba to assume the Assumed Liabilities being
assumed at such Closing.
|
(b)
|
Closing Condition
Documents
. All of the documents provided for in
Articles 7 and, as applicable, 9
below.
|
3.5
|
Transfer of Title;
Risk of Loss
. Legal and equitable title and risk of loss
with respect to all of the Purchased Assets shall pass from the Sellers to
Toshiba at the relevant Closing pursuant to, and in accordance with, the
terms of this Agreement.
|
3.6
|
Equipment
Leases
.
|
(a)
|
Transfer of Leased
Equipment
. Subject to Toshiba, SanDisk and the Seller
obtaining consent from the applicable financing parties, the Parties
contemplate that Toshiba’s acquisition of the Sellers’ interests in the
Leased Equipment shall be conducted as follows: Toshiba and the parties to
the existing lease shall, on the day of the next scheduled payment under
the relevant lease following the execution of this Agreement, and subject
to FA or FP, as applicable, making such scheduled payment, or on such
other day as may be mutually agreed between the applicable financing
parties and the current lessee of such Leased Equipment, effect a partial
assignment of the relevant lease from the Seller to Toshiba as
lessee.
|
(b)
|
Financed
Equipment
.
[***]
*.
|
(c)
|
Breach of Condition
Failure
.
[***]
*
|
(i)
|
[***]*
|
(ii)
|
[***]
*.
|
(d)
|
Other Condition
Failure
. In the event any Equipment Lease fails to
transfer
[***]
*, or
the Equipment Purchase Closing fails to occur
[***]
*, due
to a failure of
[***]
*, then
Toshiba and SanDisk will discuss in good faith alternative arrangements to
effect such transfer on a commercially reasonable
basis.
|
3.7
|
Costs and
Taxes
.
|
(a)
|
SanDisk
shall be responsible for and shall pay (i)
[***]
* and
(ii)
[***]
*
collectively the “
Lease Transfer
Costs
”).
|
(b)
|
SanDisk
shall pay to Toshiba, FP or FA, as applicable, the invoiced Lease Transfer
Costs
[***]
*,
accompanied by evidence itemizing the Lease Transfer Costs and indicating
that such costs were actually paid by Toshiba, FP or FA, as
applicable.
|
(c)
|
After
the Closing, upon reasonable written notice, the Parties agree to furnish
or cause to be furnished to each other party, and its officers, directors,
employees, managers, agents, attorneys, accountants, advisors and
representatives, as applicable, access, during normal business hours, to
such information and assistance relating to the Purchased Assets as are
reasonably necessary for financial reporting and accounting matters
relating to the Purchased Assets, the preparation and filing of any Tax
returns or other filings with any Governmental Authority, reports or forms
relating to the Purchased Assets, the defense of any Tax or other claim or
assessment relating to the Purchased Assets or, in the case of the
Sellers, relating to the operation of the Purchased Assets prior to the
Closing, provided, however, that such access and assistance do not
unreasonably disrupt the normal operations of Toshiba, FP or
FA.
|
(d)
|
To
the extent not otherwise allocated in this Agreement, the Sellers shall be
responsible for and shall promptly pay when due all Taxes levied with
respect to the Purchased Assets transferred at such Closing attributable
to the taxable period ending on the day immediately preceding such Closing
Date (such period the “
Pre-Closing
Period
”). To the extent not otherwise allocated in this
Agreement, Toshiba shall be responsible for and shall promptly pay when
due all Taxes levied with respect to
the
|
4.1
|
Lease
Agreements
. Except as it has previously informed the
other Parties hereto, no event has occurred which constitutes a default by
such Party under, or with the giving of notice or passage of time, would
constitute a default by such Party under, any provision of an Equipment
Lease, and the execution, delivery and (assuming receipt of the requisite
Material Consents) performance of this Agreement by it do not and will
not breach, violate or conflict with any provision of, or constitute
(or with the giving of notice or passage of time, constitute) a default
under, any Equipment
Lease.
|
4.2
|
Organization and
Standing
. It is duly organized and validly existing and,
where applicable, in good standing under the laws of the jurisdiction in
which it is organized.
|
4.3
|
Authority;
Enforceability
. It has the requisite corporate or
equivalent power and authority to enter into this Agreement, to execute
any certificates or other instruments to be executed by it in connection
with the Equipment Transactions, and otherwise carry out the Equipment
Transactions. All corporate or equivalent proceedings required
to be taken by it to authorize the execution, delivery and performance of
this Agreement, and any such certificates and instruments, and the
consummation of the Equipment Transactions, have been or will be as of the
Closing properly taken. This Agreement has been duly and
validly executed and delivered by it and constitutes a valid and binding
obligation of it, enforceable against it in accordance with its
terms.
|
4.4
|
No
Conflict
. The execution, delivery and performance of
this Agreement by it do not and will not (a) breach, violate or
conflict with any provision of its charter documents as amended to date,
(b) conflict with or violate any law, rule, regulation, order, writ,
judgment, injunction, decree, determination or award applicable to it, or
(c) result in the creation or imposition of any Lien on any of the
Purchased Assets. Other than pursuant to the Equipment Leases
or this Agreement, it is under no obligation, absolute or contingent, to
any Person, with respect to the sale, assignment, lease or sublease or
other transfer, conveyance or placement of any Lien on any of the
Purchased Assets. The term “
Lien
” as used
in this Agreement means any lien, pledge, hypothecation, security
interest, claim, lease, charge, option, right of first refusal, transfer
restriction, encumbrance or any other restriction or limitation
whatsoever. The term “
Person
” as used
in this Agreement means any individual, corporation, partnership, limited
liability company, firm, joint venture, association, joint-stock company,
trust, unincorporated organization, Governmental Authority or other
entity.
|
4.5
|
Brokers’ or Finders’
Fees
. It has not incurred and will not incur, directly
or indirectly, any liability for brokerage or finders’ fees or agents’
commissions or any similar charges in connection with this Agreement or
the Equipment Transactions
[***]*
. It
has not taken any action or entered into any agreement or understanding
that will cause any other Party to incur any of the foregoing
liabilities.
|
4.6
|
Litigation
. There
is no Action pending, or, to its knowledge, threatened, or directly
relating to the Equipment Transactions and which, if successful, would
materially impair such Party’s ability to consummate the Equipment
Transactions. There is no judgment, order, writ or decree that
substantially restrains its ability to consummate the Equipment
Transactions.
|
5.1
|
Equipment
. It
holds good and marketable title to the Owned Equipment, free and clear of
any Liens other than any security interest held by the Parties which shall
be removed from the applicable Equipment as such Equipment is transferred
pursuant to this Agreement, and is a lessee of the Leased
Equipment. Such Equipment is in good operating condition and
repair, subject only to ordinary wear and tear. To its
knowledge, the current use and operation of such Equipment are in
compliance in all material respects with all Applicable
Laws. Except as set forth on
Schedule
5.1
, it has not
received any notice that the possession or operation of any such Equipment
does not or did not comply with Applicable Law. There is no Action pending
or, to its knowledge, threatened, relating to or affecting the Purchased
Assets. The term “
Applicable Law
”
as used in this Agreement means, with respect to a Person, any domestic or
foreign, national, federal, territorial, state or local constitutions,
statues, laws (including principles of common law), treaties, ordinances,
rules, administrative interpretations, regulations, orders, writs,
injunctions, legally binding directives, judgments, decrees or other
requirements or restrictions of any arbitrator or Government Authority
applicable to such Person or any of its affiliates, properties, assets,
officers, directors, employees, consultants or agents in connection with
such officer’s, director’s, employee’s, consultant’s or agent’s activities
on behalf of such Person or any of its
affiliates.
|
5.2
|
Permits
. It
has obtained all material permits and other authorizations (collectively,
“
Permits
”)
necessary for the ownership, operation and use of the Purchased Assets in
substantially the same manner as currently owned, operated and used and
each Permit is valid and remains in full force and effect. It
is not in default (nor has it failed to comply), nor has it received any
notice of any claim of default or failure to comply, with respect to any
Permit.
|
5.3
|
Equipment
Leases
. Each of the Equipment Leases to which it is a
Party is in full force and effect and each constitutes a legal, valid and
binding agreement, enforceable in accordance with its terms, subject to
laws of general application relating to bankruptcy, insolvency, and the
relief of debtors, and no term or condition thereof has been amended from
the form provided to Toshiba. Except as it has previously informed the
other Parties hereto, there are no defaults by it under any of the
Equipment Leases
and no events have
occurred that with notice or the lapse of time, or action or inaction by
any party thereto, would result in a violation thereof or a default
thereunder. There is no Action to which it is a party in
which relief is sought involving, affecting or relating in any manner to
any of the Equipment Leases, and, to its knowledge, there is no Action
pending or threatened against it involving, affecting or relating to any
of the Equipment Leases. None of its rights under any of the
Equipment Leases will be materially impaired by the Equipment
Transactions, and all rights to be transferred to Toshiba in accordance
with this Agreement will inure to, and be enforceable by, Toshiba after
the applicable Closing Date without any authorization, approval,
permission or license of, or filing with, any
Person.
|
5.4
|
No Other
Agreements
. It has no legal obligation, absolute or
contingent, to any Person other than Toshiba to sell, assign, lease or
sublease or otherwise transfer, convey or place any Lien on any of the
Purchased Assets.
|
6.1
|
Operation of the
Business
.
|
(a)
|
The
Sellers agree, prior to the Closing, (i) to operate the Purchased Assets
in the ordinary course of business, and (ii) to maintain the Equipment in
good operating condition, subject, only to ordinary wear and tear, each as
consistent with the Sellers’ past practices, and (iii) to promptly
inform Toshiba of any destruction, damage to or loss of any of the
Purchased Assets that has resulted in a material reduction in the value of
the Purchased Assets. The Sellers further agree, prior to the
Closing, to use all commercially reasonable efforts to transfer or
otherwise make available to Toshiba, at each Seller’s expense, the benefit
of all warranties and similar protections applicable to the
Equipment.
|
6.2
|
Equipment
Leases
. Until the Closing, the Sellers agree to maintain
all rights and obligations in, to and under the Equipment Leases in full
force and effect.
|
6.3
|
Approvals and
Consents
. The Parties agree to use commercially
reasonable efforts to take promptly, or cause to be taken, all actions,
and to do promptly, or cause to be done, all things necessary and proper
under Applicable Law to consummate and make effective the Equipment
Transactions, to obtain all necessary waivers, consents and approvals and
to effect all necessary registrations and filings and to remove any
injunctions or other impediments or delays, legal or otherwise, in order
to consummate and make effective the Equipment Transactions for the
purpose of securing to the Parties hereto the benefits contemplated by
this Agreement. Such waivers, consents and approvals are listed
on
Schedule
6.3
attached
hereto (the “
Material
Consents
”).
|
6.4
|
Shareholder
Actions
. The Parties that are shareholders of the
Sellers agree to exercise their voting and other governance powers over
the Sellers to further the execution,
delivery
and performance of this Agreement and the consummation of the Equipment
Transactions. The Parties that are shareholders in the Sellers
agree to cause their representatives on the boards of directors of the
Sellers, in a manner consistent with their fiduciary duties under the
Companies Act (Japan), to vote and to take other director actions to
further the execution, delivery and performance of this Agreement, and the
consummation of the Equipment Transactions. The Parties that
are shareholders in the Sellers agree to take no action that would cause
any representation or warranty of the Sellers contained in Articles 4 or 5
to be untrue. The Sellers and the SanDisk Parties shall provide
reasonable cooperation to Toshiba in connection with the lease
arrangements described in Section 3.6
above.
|
6.5
|
Further
Assurances
. The Parties agree to cooperate to execute
and deliver such further documents, certificates, agreements and to take
such other actions as may be reasonably requested to evidence or reflect
the transactions contemplated by this Agreement and to carry out the
intentions of this Agreement.
|
7.1
|
No Legal
Action
. No Action relating to the Equipment Transactions
shall have been instituted against any of the Parties hereto before any
court or by any Governmental Authority which restrains or prohibits the
Equipment Transactions.
|
7.2
|
Accuracy of
Representations and Warranties
. Each of the
representations and warranties of Toshiba contained in this Agreement, or
in any other agreement signed and delivered contemporaneously with this
Agreement by or on behalf of Toshiba in connection with the transactions
contemplated hereby, shall be true and correct in all material respects as
of the Closing Date with the same effect as though such representations
and warranties had been made on and as of the Closing
Date.
|
7.3
|
Performance of
Obligations
. Toshiba shall have in all material respects
performed and complied with all of the agreements, covenants and
obligations required under this Agreement (including each of the attached
Exhibits), and under the Transaction Agreements set forth in Section
2.1(a) of the JVRA, to be performed or complied with by Toshiba prior to
or at the Closing.
|
7.4
|
Governmental
Approvals
. All material filings that are required, if
any, to have been made by the Parties with any Governmental Authority in
order to carry out this Agreement shall have been made and all material
authorizations, consents and approvals from any Governmental Authority
required to carry out this Agreement shall have been received and any
applicable waiting periods shall have
expired.
|
7.5
|
Compliance
Certificate
. Toshiba shall have delivered to the Sellers
a certificate, executed by the appropriate officers of Toshiba, certifying
that the conditions specified in Sections 7.2 and 7.3 (insofar as
they are to be performed by Toshiba) have been
fulfilled.
|
7.6
|
JVRA
. The
JVRA shall be in full force and effect, and each Party thereto (other than
the SanDisk Parties) shall have in all material respects performed and
complied with
|
7.7
|
all
of the agreements, covenants and obligations required under the JVRA
(including each of the Exhibits thereto) to be performed or complied
with by them prior to or at such
time.
|
8.1
|
Conveyance
. The
Sellers will have executed and delivered to Toshiba the FP and
FA Bills of Sale, the FP and FA Assignment and Assumption
Agreements, and any other certificates, instruments or documents required
pursuant to the provisions of this Agreement or otherwise necessary to
transfer the Owned Equipment to Toshiba in accordance with the terms
hereof.
|
8.2
|
No Legal
Action
. No Action relating to the Equipment Transactions
shall have been instituted against any of the Parties hereto before any
court or by any Governmental Authority which restrains or prohibits the
Equipment Transactions.
|
8.3
|
Accuracy of
Representations and Warranties
. Each of the
representations and warranties of the Sellers and the SanDisk Parties
contained in this Agreement, or in any agreement signed and delivered
contemporaneously with this Agreement by or on behalf of FP, FA or any
SanDisk Party in connection with the transactions contemplated hereby,
shall be true and correct in all material respects as of the Closing Date
with the same effect as though such representations and warranties had
been made on and as of the Closing
Date.
|
8.4
|
Performance of
Obligations
. The Sellers and the SanDisk Parties shall
have in all material respects performed and complied with all of their
agreements, covenants and obligations under this Agreement, and under the
Transaction Agreements set forth in Section 2.1(a) of the JVRA, to be
performed or complied with by them prior to or at the
Closing.
|
8.5
|
[***]*
.
|
8.6
|
Consents and
Waivers
. The Sellers shall have obtained all Material
Consents.
|
8.7
|
Governmental
Approvals
. All material filings that are required to
have been made by the Parties with any Governmental Authority in order to
carry out the terms of this Agreement shall have been made and all
material authorizations, consents and approvals from any Governmental
Authority required therefor shall have been obtained and any applicable
waiting periods thereunder shall have
expired.
|
8.8
|
Compliance
Certificate
. Each of FP, FA and SanDisk (on behalf of
all the SanDisk Parties)
shall have
delivered to Toshiba a certificate, executed by the appropriate officers
of FP, FA or SanDisk as applicable, certifying that the conditions
specified in Sections 8.3 and 8.4 (insofar as they are to be
performed by FP, FA or SanDisk) have been
fulfilled.
|
8.9
|
JVRA
. The
JVRA shall be in full force and effect, and each Party thereto (other than
Toshiba) shall have in all material respects performed and complied with
all of its agreements, covenants and obligations under the JVRA to be
performed or complied with by them prior to or at such
time.
|
8.10
|
Material Adverse
Effect
. There shall not have been any Material Adverse
Effect with respect to the Purchased Assets. As used in this
Agreement, the term “
Material Adverse
Effect
” means a change or changes or effect or effects (including
work stoppages) that individually or in the aggregate are or may
reasonably be expected to be materially adverse to the Purchased Assets or
the ownership, possession or use thereof as of the date of this Agreement
or as of the Closing Date;
provided,
however
, that “Material Adverse Effect” shall not include: (i) any
changes in the ordinary course of business, (ii) any changes in the
financial or credit markets, including any adverse change in the market
prices of the securities or the credit ratings of Toshiba or SanDisk, and
(iii) any changes in the market for NAND flash, or affecting manufacturers
of NAND flash generally.
|
8.11
|
No Breach of Equipment
Leases
. There shall not have occurred and be continuing
a breach of any covenant under any of the existing leases with respect to
any equipment leased by the Sellers; provided, however, this Section shall
not apply to the transfer of Owned
Equipment.
|
9.1
|
Prior
Conditions
. Each of the conditions to such Party’s
obligations in Article 7 or 8 shall be satisfied as of the relevant
Subsequent Closing Date.
|
9.2
|
SanDisk Guarantee
Obligations
. SanDisk shall have received evidence of the fact that
its obligations as a guarantor of the Equipment Leases have been reduced
to reflect the transfer of the Leased Equipment to take place at such
Subsequent Closing.
|
9.3
|
Assignment and
Assumption Agreement
. The relevant Parties shall have
executed the FP and FA Assignment and Assumption Agreements and any other
certificates, instruments or documents required pursuant to the provisions
of this Agreement or otherwise necessary to transfer the Assumed
Liabilities to Toshiba in accordance with the terms hereof, and to
consummate the Equipment
Transactions.
|
10.1
|
Each
Party agrees to, and does hereby, indemnify (an “
Indemnifying
Party
”) and hold harmless each of the other Parties from and
against any and all losses arising out of, or based upon, the gross
negligence or willful misconduct of such Indemnifying Party under this
Agreement.
|
10.2
|
Damages
Limited
.
IN THE ABSENCE OF ACTUAL FRAUD, IN NO EVENT SHALL ANY PARTY BE
LIABLE TO OR BE REQUIRED TO INDEMNIFY ANY OTHER PARTY OR ANY OF THEIR
RESPECTIVE AFFILIATES FOR ANY
|
10.3
|
[***]*
.
|
10.4
|
Sole
Remedy
. Other than the payment of Lease Transfer Costs
as set forth in Section 3.7, rights to equitable relief and, to the extent
available under Applicable Law, claims for fraud, the sole remedy
available to any Party for breaches of this Agreement shall be limited to
the rights set forth in this Article
10.
|
11.1
|
Termination
. This
Agreement and the Equipment Transactions may be
terminated:
|
(a)
|
at
any time, by mutual written consent of the Sellers, SanDisk and
Toshiba;
|
(b)
|
at
any time, by one Party (as between Toshiba and SanDisk) if it is not in
material breach of its representations, warranties, covenants and
agreements under this Agreement and there has been a material breach of
any representation, warranty, covenant or agreement contained in this
Agreement on the part of the other Party (as between Toshiba and SanDisk)
and (i) such Party has not cured such breach within the later of (a)
[***]
* after
the other Party has given notice of such breach to such Party (provided
however, that, no cure period shall be required for breach which by its
nature cannot be cured) or (b) the end of the Resolution Period set forth
in Section 3.6(c) and (ii) as a result of such breach any of the
conditions set forth in Articles 7 or 8 would not be satisfied prior to
the Closing Date, as such date may be adjusted in accordance with Section
3.6(c);
|
(c)
|
by
any Party by written notice if there shall be a final nonappealable order
of a court of competent jurisdiction in effect preventing consummation of
the Equipment Transactions; or
|
(d)
|
by
any Party by written notice if there shall be any statute, rule,
regulation or order enacted, promulgated or issued or deemed applicable to
the Equipment Transactions by any Governmental Authority that would make
consummation of any of the Equipment Transactions
illegal.
|
12.1
|
Payment of
Expenses
. Except as otherwise provided in this
Agreement, each of the Sellers, the SanDisk Parties and Toshiba will bear
its own expenses incurred in connection with this Agreement and the
consummation of the Equipment Transactions, including the fees and
expenses of attorneys, accountants, brokers, finders and any other
advisors engaged by each Party.
|
12.2
|
Relationship of the
Parties
. The Sellers, the SanDisk Parties and Toshiba
will at all times be independent contractors, and nothing in this
Agreement will be construed as creating a joint venture, partnership or
agency relationship between the
Parties.
|
12.3
|
Notices
. Any
notice or other communication required or permitted to be delivered to any
party under this Agreement shall be in writing and shall be deemed
properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by telecopier)
to the address or telecopier or facsimile number set forth beneath the
name of such Party below (or to such other address or telecopier number as
such Party shall have specified in a written notice given to the other
Party hereto):
|
12.4
|
Governing Law; Dispute
Resolution
. This Agreement will be governed by and
construed, and the rights and obligations of the Parties shall be
determined, in accordance with the laws of California without giving
effect to principles of conflict of laws. Any dispute
concerning this Agreement shall be referred to the Management Committee
(as that term is defined in Section 6.9 of the Flash Alliance Master
Agreement) and handled by it in accordance with the Flash Alliance Master
Agreement. If the Management Committee cannot resolve such
dispute in accordance with the terms of the Master Agreement, then such
dispute will be settled by binding arbitration in San Francisco,
California. The dispute shall be heard by a panel of three
arbitrators pursuant to the rules of the International Chamber of
Commerce. The awards of such arbitration shall be final and
binding upon the parties thereto. Each party will bear its own
fees and expenses associated with the arbitration. Filing fees
and arbitrator fees charged by the ICC shall be borne equally by the
Parties.
|
12.5
|
Assignability;
Third-Party Rights
. This Agreement shall be binding upon
the Sellers and their successors and permitted assigns (if any), the
SanDisk Parties and their successors and permitted assigns (if any) and
Toshiba and its successors and permitted assigns (if any). This
Agreement shall inure to the benefit of the Sellers and Toshiba and their
respective successors and permitted assigns (if any). This
Agreement may not be assigned by either Party without the prior written
consent of the other Party. Nothing in this Agreement, express
or implied, will be deemed to confer upon any other Person, any rights or
remedies under, or by reason of, this
Agreement.
|
12.6
|
Waiver
. No
failure or delay on the part of any Party hereto to exercise any right or
remedy under this Agreement shall operate as a waiver of such right or
remedy, and no single or partial exercise of any such right or remedy
shall preclude any other or further exercise thereof. No Party
shall be deemed to have waived any claim arising out of this Agreement, or
any right or remedy under this Agreement, unless the waiver of such claim,
right or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of such
Party.
|
12.7
|
Amendments
. This
Agreement may not be amended, modified or supplemented other than by a
written instrument duly executed and delivered by a duly authorized
officer on behalf of each of the
Parties.
|
12.8
|
Headings
. The
section and other headings contained in this Agreement are for reference
purposes only and will not in any way affect the meaning, or
interpretation of this Agreement.
|
12.9
|
Preparation of this
Agreement
. Each of Toshiba and the SanDisk Parties
hereby acknowledges and agrees that (a) Toshiba and the SanDisk Parties
jointly and equally participated in the drafting of this Agreement and all
other agreements contemplated
|
12.10
|
Severability
. If
any provision of this Agreement or the application thereof, becomes or is
declared by a court of competent jurisdiction to be illegal, void or
unenforceable, the remainder of this Agreement will continue in full force
and effect and the application of such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of
the Parties hereto. The Parties’ further agree to replace such
void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable
provision.
|
12.11
|
Entire
Agreement
. The schedules and exhibits attached hereto
are incorporated into this Agreement by reference. This
Agreement and the schedules and exhibits hereto, and the JVRA, constitute
the entire agreement between the Parties with respect to the subject
matter hereof and supersede all prior agreements and understandings both
written and oral between the Parties with respect to the subject matter
hereof, including the memorandum of understanding by and among Toshiba,
SanDisk and SanDisk Ireland dated October 20,
2008.
|
12.12
|
Counterparts
. This
Agreement may be executed in counterparts, each of which when so executed
will be deemed to be an original, and all such counterparts will together
constitute but one and the same instrument. Execution and
delivery of this Agreement by exchange of facsimile copies bearing the
facsimile signature of a Party shall constitute a valid and binding
execution and delivery of this Agreement by such
Party.
|
12.13
|
No Representations or
Warranties
. EXCEPT AS EXPRESSLY SET FORTH IN THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NO PARTY MAKES
ANY REPRESENTATIONS OR WARRANTIES REGARDING THE STATUS OR CONDITION OF THE
PURCHASED ASSETS, WHETHER EXPRESS OR IMPLIED, AND NO WARRANTY OF
MERCHANTABILITY, FITNESS FOR INTENDED OR PARTICULAR USE OR
OTHERWISE
|
|
[***]*
|
Three Months Ended
March
2
9
, 200
9
|
||||
(In
thousands
,
except ratio
)
|
||||
Computation of
earnings:
|
||||
Income
(loss) before provision for
income taxes
|
$ | ( 184,028 | ) | |
Fixed charges excluding
capitalized interest
|
20,109 | |||
Distributed
earnings from
50%-or-less-owned
affiliate
|
( 580 | ) | ||
Adjusted
earnings
|
$ | (164,499 | ) | |
Computation of fixed
charges:
|
||||
Interest
expense
|
$ | 16,849 | ||
Interest relating to lease
guarantee of 50%-or-less-owned affiliate
|
2,637 | |||
Interest portion of operating
lease expense
|
623 | |||
Fixed
charges
|
$ | 20,109 | ||
Ratio of earnings to fixed charges
(1)
|
─
|
(1)
|
Computed
by dividing (i) income (loss) before provision for income taxes
adjusted for fixed charges by (ii) fixed charges which include interest
expense plus amortization of debt issuance costs, the portion of rent
expense under operating leases deemed to be representative of the interest
factor and interest relating to lease guarantees of 50%-or-less-owned
affiliates. In the three months ended March 29, 2009, earnings
were insufficient to cover fixed charges by
$184.6 million.
|
Date:
May 7, 2009
|
/s/ Eli Harari
|
Eli
Harari
Chief
Executive Officer
(Principal
Executive
Officer)
|
Date:
May 7, 2009
|
/s/ Judy Bruner
|
Judy
Bruner
Chief
Financial Officer
(Principal
Financial and Accounting
Officer)
|
By:
/s/ Eli
Harari
|
Eli
Harari
Chief
Executive Officer
(Principal
Executive Officer)
|
May 7,
2009
|
By
:
/s/ Judy
Bruner
|
Judy
Bruner
Chief
Financial Officer
(Principal
Financial and Accounting Officer)
|
May 7,
2009
|