EXHIBIT 10.1
================================================================================
FLASH PARTNERS MASTER AGREEMENT
Dated as of September 10, 2004
by and among
TOSHIBA CORPORATION,
SANDISK CORPORATION
and
SANDISK INTERNATIONAL LIMITED
================================================================================
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
Table of Contents
Page
----
1. Definitions and Interpretation.............................................. 2
2. Closing and Post-Closing Transactions....................................... 4
3. Purpose of Flash Partners................................................... 7
4. Representations and Warranties of the Parties............................... 7
5. Covenants................................................................... 11
6. Covenants concerning NAND Flash Memory Products Business.................... 12
7. Other Agreements............................................................ 25
8. Termination................................................................. 28
9. Miscellaneous............................................................... 33
This FLASH PARTNERS MASTER AGREEMENT, dated as of September 10,
2004, is entered into by and among, on one side, TOSHIBA CORPORATION, a Japanese
corporation ("Toshiba"), and, on the other side, SANDISK CORPORATION, a Delaware
corporation ("SanDisk Corporation"), and SANDISK INTERNATIONAL LIMITED, a
company organized under the laws of the Cayman Islands ("SanDisk International",
and collectively with SanDisk Corporation, "SanDisk," and SanDisk together with
Toshiba, the "Parties").
WHEREAS, pursuant to that certain New Master Agreement between
SanDisk Corporation and Toshiba, dated as of April 10, 2002, as amended by that
certain Amendment to New Master Agreement between the Parties dated as of August
13, 2002 (the "FVC Japan Master Agreement"), and the agreements referenced
therein, the Parties have had a collaboration for development and manufacture of
FVC Japan NAND Flash Memory Products (as hereinafter defined);
WHEREAS, the Parties desire to extend their collaboration to
encompass additional joint development and manufacture of Y3 NAND Flash Memory
Products (as hereinafter defined) to be produced at the wafer fabrication
facility known as "Y3"; and
WHEREAS, in order to realize these goals, the Parties desire to
consummate or cause to be consummated the transactions described in this
Agreement, and any other transactions which the Parties may from time to time
consider necessary or appropriate to carry out the intent of the Parties as
expressed herein.
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS AND INTERPRETATION.
1.1 Certain Definitions.
(a) Capitalized terms used but not defined in this Agreement shall have the
respective meanings assigned to them in Appendix A (Definitions, Rules of
Construction and General Terms and Conditions).
(b) As used herein, the term "Agreement" means this Flash Partners Master
Agreement together with any Exhibits, Schedules, Appendices and
Attachments hereto.
1.2 Additional Definitions. The following capitalized terms used in this
Agreement shall have the respective meanings assigned in this Agreement:
TERM DEFINED IN
---- ----------
Acquiring Party Section 8.1(d)
Alternative Use Section 6.3(c)(i)
Amendment No. 3 to Patent Cross License Agreement Section 2.1(c)(iii)
Appointing Party Section 6.7(b)(i)
[***] Section 6.3(c)(ii)(B)
Closing Section 2.1(a)
Committee Representatives Section 6.7(b)(i)
Common R&D Agreement Section 2.1(c)(i)
Common R&D Development Expenses Section 6.6(a)(i)
Costs Section 6.3(c)(i)
Cross License Agreement Section 2.1(c)(iii)
Defaulting Party Section 6.10(d)
Excess Capacity Party/EC Party Section 6.5(b)(i)
Embedded NAND Product Section 6.5(c)(ii)
Employer Section 6.8(g)
Environmental Indemnification Agreement Section 2.1(b)(vii)
Equipment Section 6.3(c)(i)
Evaluation Wafers Section 6.6(a)(iii)
Financing Section 6.10(b)(iii)
Flash Partners Section 2.1(b)
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
2
TERM DEFINED IN
---- ----------
FP Foundry Agreement Section 2.1(b)(iv)
FP Operating Agreement Section 2.1(b)(ii)
FP Operative Documents Section 2.1(b)
FP Patent Indemnification Agreement Section 2.1(b)(vi)
FP Secondees Section 6.8
FP Termination Date Section 8.1(b)
FP Units Section 4.2(a)
FVC Japan Master Agreement Recitals
FVC Japan Operative Documents Section 2.3
FVC Japan NAND Flash Memory Products Section 3.3(a)
Ics Section 3.2
Intellectual Property Section 4.7
Investing Party Section 6.3(c)(i)
Joint Operative Documents Section 2.1(c)
Lease Agreement Section 2.1(b)(viii)
Management Committee Section 6.7
Minimum RUP Commitment Section 6.3(c)(i)
Master Operative Documents Section 2.2
NAND Flash Memory Integrated Circuits Section 6.11
NAND Flash Memory Products Section 3.2
NAND Process Technology Section 6.1(a)
Non-Defaulting Party Section 6.10(d)
Non-Investing Party Section 6.3(c)(i)
Non-Originating Party Section 6.5(e)
Originating Party Section 6.5(e)
Parties Heading
Product Development Agreement Section 2.1(c)(ii)
Proprietary NAND Flash Memory Products Section 6.5(d)
Purchase and Supply Agreements Section 2.1(b)(v)
Qualification Wafers Section 6.6(a)(iv)
Ramp-Up Plan Section 6.3(b)
Requesting Party Section 8.1(d)(i)
[***] Section 6.3(c)(ii)
[***] Section 6.3(c)(ii)
SanDisk Heading
SanDisk Corporation Heading
SanDisk Financing Section 6.10(b)(iii)
SanDisk International Heading
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
3
TERM DEFINED IN
---- ----------
SanDisk Purchase and Supply Agreement Section 2.1(b)(v)
SanDisk Termination Capacity Section 8.1(e)(i)
Selling Party Section 8.1(d)
Start-Up Costs Section 6.2
Termination Capacity Section 8.1(d)(i)
Third Party Sale Section 6.3(c)(i)
Toshiba Heading
Toshiba Financing Section 6.10(b)(iii)
Toshiba Foundry NAND Flash Memory Products Section 3.3(a)
Toshiba Purchase and Supply Agreement Section 2.1(b)(v)
Toshiba-SanDisk Services Agreement Section 2.1(c)(iii)
[***] Section 6.3(c)(ii)(A)
Unit Purchase Agreement Section 2.1(b)(i)
Y3 Direct R&D Development Products Section 6.6(a)(ii)
Y3 Facility Section 3.1
Y3 Facility Target Capacity Section 7.3(b)
Y3 NAND Flash Memory Products Section 3.3(a)
[***] Section 7.4(c)(i)
1.3 Rules of Construction and Documentary Conventions. The rules of
construction and documentary conventions and general terms and conditions
set forth in Appendix A shall apply to this Agreement.
1.4 Precedence. The terms and provisions of this Agreement are binding on the
Parties; provided, however, that to the extent that a description in this
Agreement of another agreement (whether an Operative Document or
otherwise) conflicts with or differs from the provisions of that
agreement, then the provisions of that agreement shall control as to such
conflict or difference.
2. CLOSING AND POST-CLOSING TRANSACTIONS
2.1 Closing Transactions.
(a) Closing. The Parties shall effect the transactions set forth in this
Section 2.1, all of which shall be considered to occur on the date hereof
unless otherwise stipulated (the effecting of such transactions,
collectively, the "Closing").
(b) Flash Partners Documents. Unless otherwise indicated in this Section
2.1(c), as of the Closing Date, the Parties shall enter into or cause to
be entered into or otherwise become effective the following agreements and
documents (collectively with this Agreement, the "FP Operative Documents")
to apply to their joint development, manufacture and selling of Y3 NAND
Flash Memory Products by
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
4
and through Flash Partners, Ltd., a Japanese yugen kaisha ("Flash
Partners") (the description of each document below is for reference only
and shall not be used in interpreting any such document):
(i) a Unit Purchase Agreement between Toshiba and SanDisk
International, dated as of the date hereof, in the form of Exhibit
A1 (the "Unit Purchase Agreement"), and which concerns the sale by
Toshiba and purchase by SanDisk International at the Closing of
49.9% of the FP Units;
(ii) an Operating Agreement between Toshiba and SanDisk International,
dated as of the date hereof, in the form of Exhibit A2 (the "FP
Operating Agreement"), and which concerns governance of Flash
Partners;
(iii) Articles of Incorporation of Flash Partners in the form of Exhibit
A to the FP Operating Agreement;
(iv) a Foundry Agreement, dated as of the date hereof, between Flash
Partners and Toshiba in the form of Exhibit A3 (the "FP Foundry
Agreement");
(v) a Purchase and Supply Agreement, dated as of the date hereof, by
and between Flash Partners and SanDisk International in the form of
Exhibit A4-1 (the "SanDisk Purchase and Supply Agreement") and a
Purchase and Supply Agreement, dated as of the date hereof, between
Flash Partners and Toshiba in the form of Exhibit A4-2 (the
"Toshiba Purchase and Supply Agreement" and together with the
SanDisk Purchase and Supply Agreement, the "Purchase and Supply
Agreements"), and which concern the forecasting and purchase
commitments by SanDisk and Toshiba, respectively, of Y3 NAND Flash
Memory Products;
(vi) a Patent Indemnification Agreement between SanDisk Corporation and
Toshiba, dated as of the date hereof, in the form of Exhibit A5
(the "FP Patent Indemnification Agreement"), and which concerns
patent indemnification obligations of Toshiba in favor of SanDisk
and certain contribution obligations of SanDisk with respect to Y3
NAND Flash Memory Products;
(vii) a Mutual Contribution and Environmental Indemnification Agreement
between SanDisk Corporation and Toshiba, dated as of the date
hereof, in the form of Exhibit A6 (the "Environmental
Indemnification Agreement"), and which concerns indemnification
obligations of the Parties in favor of one another with respect to
Flash Partners and the Yokkaichi Facility; and
(viii) a Lease Agreement between Flash Partners and Toshiba, as owner of
the Yokkaichi Facility, dated as of the date hereof, in the form of
Exhibit A7 (the "Lease Agreement"), and which concerns the leasing
of Flash Partners' equipment to Toshiba as owner of the Yokkaichi
Facility.
(c) Joint Operative Documents. The Parties acknowledge and agree that the
following agreements shall remain in force or be amended or executed as
indicated below
5
and shall apply generally to the Parties' collaboration with respect to
NAND Flash Memory Products and related products (collectively, the "Joint
Operative Documents"):
(i) the Amended and Restated Common R&D and Participation Agreement,
dated as of the date hereof, between SanDisk Corporation and Toshiba
(the "Common R&D Agreement"), a copy of which is Exhibit B1 and
which concerns collaboration between the Parties with respect to
research and development activities;
(ii) the Amended and Restated Product Development Agreement, dated as of
the date hereof, between the SanDisk Corporation and Toshiba (the
"Product Development Agreement"), a copy of which is Exhibit B2 and
which concerns collaboration between the Parties with respect to
product development activities;
(iii) an Amendment No. 3 to Patent Cross License Agreement, dated as of
the date hereof, between SanDisk Corporation and Toshiba (the
"Amendment No. 3 to Patent Cross License Agreement"), a copy of
which is Exhibit B3, amending that certain Patent Cross License
Agreement between SanDisk Corporation and Toshiba, dated as of July
30, 1997 (as amended by Amendment No. 1 to Patent Cross License
Agreement, dated as of May 9, 2000, and Amendment No. 2 to Patent
Cross License Agreement, dated as of April 10, 2002, the "Cross
License Agreement"), and which concerns certain patent licenses
granted by SanDisk Corporation and Toshiba to one another; and an
Amendment No. 1 to Services Agreement, dated as of the date hereof,
between SanDisk Corporation and Toshiba ("Toshiba-SanDisk Services
Agreement"), a copy of which is Exhibit B4, amending that certain
Toshiba-SanDisk Services Agreement, dated as of July 1, 2002, which
concerns Toshiba's provision of certain services to SanDisk and
SanDisk's payment to Toshiba for such services.
2.2 Further Assurances. Following the Closing, each Party shall, and shall
cause its Affiliates and Flash Partners to, take all reasonable actions
necessary or appropriate to effectuate the transactions contemplated by
this Agreement, the FP Operative Documents and the Joint Operative
Documents (collectively, the "Master Operative Documents"), and to obtain
(and cooperate with the other Party in obtaining) any Governmental Action
or third party consent required to be obtained or made by it in connection
with any of the transactions contemplated by the Master Operative
Documents; provided, that no Burdensome Condition shall be made to exist
with respect to such Party or any of its Affiliates in connection
therewith.
2.3 Continuation of FVC Japan Documents. The Parties agree that unless
otherwise expressly stated herein (A) the FVC Japan Operative Documents
shall not affect the interpretation of this Agreement or the governance or
operation of Flash Partners or the Y3 Facility and (B) the FP Operative
Documents shall not affect the interpretation of the FVC Japan Master
Agreement or the governance operation of FVC Japan or the FVC Japan
Equipment. The Parties further
6
acknowledge that their agreement concerning the relationship between the
FVC Japan Operative Documents and FP Operative Documents is stated in a
letter agreement between Toshiba and SanDisk, dated as of the date hereof
(which is not itself either an FVC Japan Operative Document or FP
Operative Document).
3. PURPOSE OF FLASH PARTNERS
3.1 Purpose. The Parties acknowledge and agree that the purpose of the Master
Operative Documents and Flash Partners is the manufacture, including by
subcontract to Toshiba pursuant to the FP Foundry Agreement, and sale to
the Parties of NAND Flash Memory Products manufactured at the facility of
the Flash Partners known by the Parties as "Y3" (the "Y3 Facility"), which
is a part of the Yokkaichi Facility (defined in Appendix A).
3.2 NAND Flash Memory Products. "NAND Flash Memory Products" are NAND (both
binary and MLC Flash Memory) Flash Memory Integrated Circuits ("ICs"),
excluding any products with process design rules generally greater than
.25 microns. Embedded IC's incorporating NAND Flash Memory Products shall
be considered to constitute "NAND Flash Memory Products" if the main
function and value of such IC is flash memory, but shall not be considered
to constitute "NAND Flash Memory Products" if the main function and value
of such IC is logic. For the purpose of the foregoing, the "main function
and value" of any product shall be considered to be flash memory if (x)
the total NAND flash memory array area is greater than [***] of the total
die area or (y) the product is a cut-down or derivative of a standard NAND
Flash Memory Product.
3.3 Products.
(a) NAND Flash Memory Products manufactured at the Y3 Facility are referred to
as "Y3 NAND Flash Memory Products," NAND Flash Memory Products
manufactured for FVC Japan using the FVC Japan Equipment are referred to
as "FVC Japan NAND Flash Memory Products" and NAND Flash Memory Products
manufactured at the Toshiba Foundry Facility (defined in Appendix A) are
referred to as "Toshiba Foundry NAND Flash Memory Products".
(b) Each Party shall be permitted to market and sell all NAND Flash Memory
Products to any third party in any form, including chips, packaged
devices, wafers, die and cards.
4. REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Except as may be disclosed in disclosure schedules attached to this
Agreement, each Party represents and warrants to the other Party, as of
the Closing, as follows:
4.1 Organization, Ownership Interest, etc.
(a) It and each of its Affiliates that is a party to any Master Operative
Document is duly organized, validly existing and in good standing under
the laws of its
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
7
jurisdiction of organization or incorporation and has the power and
authority to carry on its business as conducted on the date hereof, to own
or hold under lease its properties and to enter into and perform its
obligations under each Master Operative Document to which it is a party.
(b) It and each of its Affiliates that is a party to any Master Operative
Document is duly qualified to own or lease its properties and generally to
conduct its business as currently, or proposed under the Master Operative
Documents to be, conducted in each jurisdiction necessary for purposes of
the transactions contemplated by the Master Operative Documents, except
where failure to so qualify would not have a material adverse effect on
either Party or Flash Partners.
4.2 Authorization; No Conflict.
(a) It and each of its Affiliates has duly authorized by all necessary action
(i) the execution, delivery and performance of each Master Operative
Document to which it or any of its Affiliates is a party and (ii) the
exercise of its rights as a holder of units (shusshi mochibun) of Flash
Partners (the "FP Units") to approve the execution, delivery and
performance by Flash Partners of each Master Operative Document to which
it is a party and for which the approval of the holders of FP Units is
required.
(b) Its and each of its Affiliates' execution and delivery of each Master
Operative Document to which it is a party, its and each of its Affiliates'
consummation of the transactions contemplated thereby and its and each of
its Affiliates' compliance therewith does not and will not (i) require any
approval of its or any of such Affiliates' stockholders or any approval or
consent of any trustee or holder of any of its or any of such Affiliates'
Indebtedness or obligations, (ii) contravene any Governmental Rule
applicable to or binding on it or any of such Affiliates or any of its or
their properties if such contravention would have a material adverse
effect on it or any of such Affiliates or on its or their ability to
perform any of its or any of such Affiliates' obligations under any Master
Operative Document, (iii) contravene or result in any breach of, or
constitute any default, with or without the passage of time, the giving of
notice or both, under its charter or by-laws, or contravene or result in
any breach of or constitute any default under, or result in the creation
of any Lien (other than Permitted Liens) upon any of its or any of such
Affiliates property or the property of Flash Partners under, any material
indenture, mortgage, chattel mortgage, deed of trust, conditional sales
contract, loan or credit agreement, non-compete agreement, license
agreement, partnership or joint venture agreement or other material
agreement or document to which it or any of such Affiliates is a party or
by which it or any of such Affiliates or any of its or their properties is
or is intended to be bound or by which Flash Partners or any of its
properties is or is intended to be bound, (iv) require any negotiation
with, or notice to, any labor union or violate, or require any procedure
to be followed under, any collective bargaining or other agreement with
employees or (v) require any Governmental Action (other than immaterial
Governmental Actions such as routine qualifications to do business
intended to be obtained as needed or Governmental Actions needed in
connection
8
with the construction and operation of the Y3 Facility), except, in each
case described in clauses (i) through (v) above, such as have been duly
obtained, made, taken or otherwise accomplished and which are in full
force and effect. All consents and approvals of any Governmental Authority
(other than immaterial Governmental Actions such as routine qualifications
to do business intended to be obtained as needed or Governmental Actions
needed in connection with the operation of the Y3 Facility) or other third
Person necessary or advisable for such Party or any of its Affiliates to
consummate in all material respects the transactions contemplated by the
Master Operative Documents have been obtained. No Burdensome Condition
exists with respect to such Party, any of its Affiliates or Flash Partners
in connection with the transactions contemplated by the Master Operative
Documents.
4.3 Enforceability.
(a) It has duly executed and delivered this Agreement and, upon the execution
and delivery of this Agreement by the other Party, this Agreement will
constitute its legal, valid and binding obligation, enforceable against it
in accordance with its terms except as enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
the enforcement of creditors' rights generally or the availability of
equitable remedies (regardless of whether enforceability is considered in
a proceeding at law or in equity).
(b) It and each of its Affiliates have duly executed and delivered each other
Master Operative Document to which it or any such Affiliate is a party
and, upon the execution and delivery of each such other Master Operative
Document by each other party thereto, each such other Master Operative
Document will constitute its legal, valid and binding obligation,
enforceable against it or its Affiliates in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting the enforcement of
creditors' rights generally or the availability of equitable remedies
(regardless of whether enforceability is considered in a proceeding at law
or in equity).
4.4 Proceedings. There are no actions, claims, investigations or proceedings
pending, or to its knowledge threatened, by or before any Governmental
Authority that, if adversely determined, would have a material adverse
effect on it or any of its Affiliates that is a party to any Master
Operative Document or, on the conduct of the business of Flash Partners
following the Closing as contemplated in the Master Operative Documents or
on it or any of its Affiliates' ability to perform any material obligation
under any Master Operative Document.
4.5 Litigation; Decrees. Except as set forth in Schedule 4.5, there are no
lawsuits, arbitrations or other legal proceedings pending, or to its
knowledge threatened, by or against or affecting it or any of its
Affiliates or any of their respective properties that (i) are reasonably
likely, based on information known to it as of the date hereof, to have a
material adverse effect on the conduct of the business of Flash Partners
following the Closing as contemplated by the Master Operative Documents or
(ii) relate to any of the transactions contemplated by the Master
9
Operative Documents in a manner which is material to it, any of its
Affiliates' or Flash Partners ability of it to carry out the transactions
contemplated hereby and in the FP Operative Documents or which could have
a material adverse effect on the conduct of the business of Flash Partners
following the Closing as contemplated in the Master Operative Documents.
4.6 Compliance with Other Instruments. Neither it nor any of its Affiliates
that is a party to any Master Operative Document is in default in any
material respect in the performance of any material obligation, agreement,
instrument or undertaking to which it or any of its Affiliates is a party
or by which it or any of its Affiliates or any of its of their properties
is bound, and there is no such obligation, agreement, instrument or
undertaking to which it or any of its Affiliates is a party or by which it
or any of its Affiliates or any of its or their properties is bound, in
each case which is reasonably likely to have a material adverse effect on
the conduct of the business of Flash Partners following the Closing as
contemplated by the Master Operative Documents.
4.7 Patents and Proprietary Rights. Except as set forth in Schedule 4.7, to
its knowledge, it owns or possesses sufficient legal rights to all
patents, utility models, trademarks, service marks, trade names,
copyrights, applications for any of the foregoing, mask works, software,
trade secrets, licenses, information and proprietary rights and processes
(collectively, "Intellectual Property") necessary (i) to carry out its or
any of its Affiliates' obligations under the Master Operative Documents
and (ii) for the conduct of the business of Flash Partners following the
Closing as contemplated in the Master Operative Documents, without any
conflict with or infringement of the rights of others, except as will not
have a material adverse effect on either (i) or (ii) above. Except with
respect to items referenced in Schedule 4.7, it has not received any
communications alleging that its Intellectual Property violates, or by its
or any of its Affiliates entering into the transactions contemplated by
the Master Operative Documents, would violate the Intellectual Property of
any other Person or entity, which violation could reasonably be expected
to have a material adverse effect on either (i) or (ii) above.
4.8 Compliance with Laws. It and each of its Affiliates has complied and is
complying in all material respects with all laws, statutes, permit
requirements, licensing requirements, rules and regulations and judicial
or administrative decisions, except where the failure to so comply would
not have a material adverse effect on its or any of its Affiliates ability
to perform its or their obligations hereunder or under any other Master
Operative Document or on the conduct of the business of Flash Partners
following the Closing as contemplated by the Master Operative Documents.
4.9 Patent Cross Licenses. Except as set forth on Schedule 4.9, with respect
to (a) Toshiba, there are no patent cross licenses between it and any
third party that would require Flash Partners to make any payment pursuant
to Section 10 of the Cross License Agreement, and (b) SanDisk, there are
no patent cross licenses between it and any third party that would require
Flash Partners to make any payment pursuant to Section 8 of the Cross
License Agreement.
10
5. COVENANTS
5.1 Covenants of the Parties. Each Party agrees that, during the term of this
Agreement:
(a) Performance of Obligations. It and each of its Affiliates shall fully and
faithfully carry out (i) all its obligations under each Master Operative
Document to which it or any Affiliate is a party, and (ii) once agreed,
each applicable Business Plan (as defined in the FP Operating Agreement).
(b) Ownership Interest. Except as otherwise expressly permitted by the FP
Operating Agreement and this Agreement, it shall not Transfer or permit
any of its Affiliates to Transfer all or any portion of its FP Units (or
all or any portion of its interest in any Affiliate through which it
beneficially owns its FP Units), to any Person without the consent of the
other Party.
5.2 Public Announcements.
(a) At or following the Closing, neither Party shall, nor shall it permit any
of its Affiliates to, without the prior written consent of the other
Party:
(i) issue any public release, announcement or other document, or
otherwise publicly disclose any information or make any public
statement, concerning the operations of Flash Partners or that
refers to the other Party or any of its Affiliates in connection
therewith (other than a general reference to affiliation with Flash
Partners) that (A) concerns the financial condition or results of
operations of Flash Partners other than as required by any
Governmental Rule, Japanese GAAP, Japanese GAAS, US GAAP or US GAAS,
with respect to the financial disclosure obligations of either Party
or (B) disparages either Party, or Flash Partners' performance or
reflects negatively on either Party's commitment to either of Flash
Partners; or
(ii) other than as may be required in connection with filings required to
be made with Governmental Authorities with respect to the
transactions contemplated by the FP Operative Documents pursuant to
the Japanese Foreign Exchange and Foreign Trade Law and related
regulations, (A) publicly file all or any part of any Master
Operative Document or any description thereof or (B) issue or
otherwise make publicly available any press release, announcement or
other document that contains Confidential Information belonging to
the other Party (or its Affiliates) or Flash Partners, except as may
be required by any applicable Governmental Rule, in which case such
Party shall (or shall cause the Person required to make such filing
to) cooperate with the other Party, to the extent reasonable and
practicable, in obtaining any confidential treatment for such filing
requested by the other Party.
11
(b) Each Party shall use commercially reasonable efforts to grant or deny any
approval required under this Section 5.2 within five (5) days of receipt
of written request by the other Party; provided, however, a Party's
failure to respond within said time period shall not be deemed to
constitute such Party's approval or consent.
5.3 Expenses. Each Party shall bear its own expenses in connection with the
negotiation, execution and delivery of the Master Operative Documents.
5.4 Undertaking as to Affiliate Obligations. Each Party shall cause all
covenants, conditions and agreements to be performed, observed or
satisfied by each of its Affiliates that is a party to any Master
Operative Documents to be fully and faithfully observed, performed and
satisfied by such Affiliate, and shall not cause or permit to exist (i) an
Event of Default with respect to such Affiliate or (ii) except as
otherwise permitted by the FP Operating Agreement, any event of
dissolution of Flash Partners caused by such Affiliate. Nothing in Section
5.1 or in this Section 5.4 shall be construed to create any right in any
Person other than the Parties. Without limiting the generality of the
foregoing, SanDisk hereby guarantees the obligations of SanDisk
International hereunder and under any Master Operative Document to which
SanDisk International is a party.
5.5 Continuity and Maintenance of Operations. During the term of this
Agreement, each Party agrees on behalf of itself and each of its
Affiliates that is a party to any Master Operative Document to use all
reasonable efforts consistent with past practice and policies to (i)
preserve intact in all material respects its and their present business
operations, (ii) keep available the services of its and their key
employees as a group, and (iii) preserve its relationships with suppliers,
licensors, licensees, and others having business relationships with it or
them, each to the extent necessary to allow it and such Affiliates to
perform its and their obligations under the Master Operative Documents and
to allow Flash Partners to conduct its business as contemplated in its
most recently approved Business Plan.
5.6 Certain Deliveries and Notices. Each Party shall promptly inform in
writing the other Party of (i) any event or occurrences which could be
reasonably expected to have a material adverse effect on its or any of its
Affiliates' ability to perform its or their obligations under any of the
Master Operative Documents or the ability of Flash Partners to conduct its
business as contemplated in its most recently approved Business Plan, or
(ii) any breach or failure to satisfy any condition or covenant contained
herein or in any other Master Operative Document by such Party or any of
its Affiliates.
6. COVENANTS CONCERNING NAND FLASH MEMORY PRODUCTS BUSINESS
6.1 Technology Transfers.
(a) Toshiba will make available to Flash Partners its 90 nanometer [***]
process technology applicable to the manufacturing and testing of NAND
Flash Memory Products ("NAND Process Technology") on the fastest
practicable
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
12
schedule. All process integration for new processes will be led by Toshiba
employees at the Yokkaichi Facility to the extent reasonably possible.
Toshiba will cause its employees, including its advanced microelectronics
center
employees, to cooperate in achieving an efficient transition from
development module to operating process and volume production. Flash
Partners will establish a pilot line where (unless impracticable)
substantially all tests for 300 millimeter NAND technology will be
conducted.
(b) Whenever a technology transfer is required hereunder, Toshiba shall
deliver such level of NAND Process Technology to the Y3 Facility as would
be normal practice by the Toshiba Semiconductor Company whenever it
transfers a technology to a new manufacturing facility or transfers a new
or advanced technology to an existing manufacturing facility in order to
achieve successful implementation of the newly transferred technology.
(c) A technology transfer hereunder shall be deemed complete when the
transferred technology passes a reasonable qualification procedure to be
mutually agreed upon by the Parties.
(d) [***]
(e) [***]
6.2 Start-Up Services for Y3. The Parties acknowledge that either or both of
the Parties and Flash Partners have incurred or will incur costs in
connection with developing Flash Partners and the Y3 Facility and
preparing the Y3 Facility for production, including personnel costs,
materials costs and other operating expenses, that are properly allocable
to Flash Partners and for which each Party has the obligation ultimately
to bear 50% of the responsibility ("Start-Up Costs"). The Parties shall
discuss in good faith and agree upon the Start-Up Costs, the allocation to
Flash Partners of Start-Up Costs borne by either Party and the means and
timing of each Party being reimbursed or credited for having incurred more
than 50% of the Start-Up Costs or of making payments due to having
incurred less than 50% of the Start-Up Costs.
6.3 Y3 Facility Ramp-Up Plan.
(a) Equal Participation and Purchase Price Per Unit. The Parties intend to
meet demand for increased capacity by equally investing in, and jointly
building, and sharing, on equal or substantially equal terms, equal
amounts of new capacity for Y3 NAND Flash Memory Products, except as they
may otherwise agree as contemplated herein. [***]
(b) Ramp-Up Plan. The Parties acknowledge that they intend to expand their Y3
NAND Flash Memory Product manufacturing capacity through development of
the Y3 Facility according to volumes and timing set forth in Schedule
6.3(b) (including to [***] L/M, the "Ramp-Up Plan"). The Parties will
discuss in good
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
13
faith whether the production capacity of Y3 should be expanded by the
Parties toward the Y3 Facility's targeted capacity of approximately [***]
L/M.
(c) Ramp-Up Plan Commitments and Changes. The Parties agree as follows
concerning the Ramp-Up Plan:
(i) The initial 600 L/M in aggregate increases in production capacity of
the Y3 Facility identified on the Ramp-Up Plan shall be considered
firmly committed by each Party (i.e., 300 L/M each) as of the times
specified in the Ramp-Up Plan and in accordance with this Section
6.3(c)(i) (the "Minimum RUP Commitment"). The Parties shall agree
upon one or more Business Plans that provide for implementing the
Minimum RUP Commitment. [***]
6.4 Capacity.
(a) Priority.
[***]
(b) [***]
(c) Technology Transfer. If the Parties mutually agree to secure external
manufacturing sources other than the Yokkaichi Facility through joint
investment, Flash Partners and Toshiba, as applicable, will jointly
transfer the applicable manufacturing technology and know-how to such
source. Flash Partners (with respect to 300 millimeter wafers) and FVC
Japan (with respect to 200 millimeter wafers) will conduct all
negotiations with the external manufacturing source; provided, however,
the terms and conditions of any agreement shall be subject to prior
consultation with and the approval of Toshiba. In connection with any
technology transfer to such external source, Toshiba will be reimbursed
its mutually agreed transfer costs for assisting in the transfer of
manufacturing technology and know-how. If the new capacity secured at such
external manufacturing source is requested by only one of the Parties,
such Party will pay the transfer costs and be entitled to purchase the
full output of NAND Flash Memory Products purchased by FVC Japan or Flash
Partners, as applicable, from such external manufacturing source. If both
Parties request such new external capacity, then FVC Japan or Flash
Partners, as applicable, will pay the transfer costs to Toshiba. Neither
Party shall have the right to grant manufacturing licenses to such
external manufacturing source or to disclose or transfer to any such
external manufacturing source, manufacturing know-how related to the
manufacture of NAND Flash Memory Products, except through FVC Japan or
Flash Partners.
6.5 Capacity Sharing Arrangement.
(a) Equal right to capacity. Subject to Section 6.3(c), each of the Parties
will have the right and obligation, through Flash Partners, to utilize 50%
of the wafers produced
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
14
at the Y3 Facility based on a measure of equivalent lots out per week with
the equivalency being weighed based on the process complexity factors (as
calculated by a formula to be mutually determined by the Parties) of the
Y3 NAND Flash Memory Products.
(b) Alternative use of allotted capacity.
(i) If a Party is unable to utilize its allotted manufacturing capacity
for Y3 NAND Flash Memory Products (such Party, an "Excess Capacity"
or "EC Party"), it may do any of the following:
(A) An EC Party may request the other Party to negotiate the terms
of transfer of its capacity shortfall to the other Party,
which may choose whether to accept such additional capacity
and on what terms in its sole discretion.
(B) An EC Party may use its capacity for Embedded NAND Products,
as defined in and subject to Section 6.5(c).
15
(C) An EC Party may use its capacity for Proprietary NAND Flash
Memory Products and non-Proprietary NAND Flash Memory
Products, in accordance with and subject to Sections 6.5(d)
and (e).
If an EC Party is not able to utilize or transfer its allotted
capacity pursuant to Section 6.5(b), it shall pay the incremental
cost increase to the Party not experiencing a shortfall (or pay to
Flash Partners an under-utilization fee in accordance with a formula
to be mutually determined by the Parties).
(ii) If both Parties are EC Parties because demand for both Parties' Y3
NAND Flash Memory Products are significantly below expectations, the
Parties will discuss in good faith whether to permit products which
are not Y3 NAND Flash Memory Products to be produced at the Y3
Facility; provided that (A) the inability of the Parties so to agree
shall not constitute a Deadlock (as defined in the FP Operating
Agreement) and (B) the foregoing shall not limit either Party's
rights in the remainder of this Section 6.5.
(c) Either Party shall have the right use a portion of its total allocated
capacity with respect to the Y3 Facility to run a memory product which is
not a Y3 NAND Flash Memory Product (solely because the NAND flash memory
array area is equal to or less than [***] of the total die area ("Embedded
NAND Product")) so long as such Embedded NAND Product [***]. If a Party
exercises its option to run Embedded NAND Products, it must [***]. The
conditions stated in Sections 6.5(d) and (e) do not apply to Embedded NAND
Products.
(d) Each Party may use a portion of its total allocated capacity to cause to
be manufactured NAND Flash Memory Products which are proprietary to that
Party ("Proprietary NAND Flash Memory Products") and which need not be
shared with the other Party. Proprietary NAND Flash Memory Products may be
produced at the Y3 Facility so long as such products [***]. If a Party
exercises such option, it must [***]. No such Proprietary NAND Flash
Memory Products may be run if doing so [***]. Each Party shall give the
other Party at least ninety (90) days' advance written notice of its
intention to use a portion of its allocated capacity to manufacture
Proprietary NAND Flash Memory Products and the Parties shall refer the
matter to the Board of Directors for consultation and planning, with the
intention to minimize the impact of such allocation. Such notifying Party
will limit the output volume of such Proprietary NAND Flash Memory
Products to [***] of such Party's total allocated output at the Y3
Facility unless it receives the consent of the other Party to an increase
in such output volume above such limit.
(e) Each Party (the "Originating Party") shall inform the other (the
"Non-Originating Party") of the development plans by the Originating Party
to develop NAND Flash Memory Products, and the Originating Party and the
Non-Originating Party shall each refer such matter to the Coordinating
Committee (as defined in the Product Development Agreement). If the
Coordinating Committee unanimously decides that such planned development
shall be undertaken jointly, then the cost
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
16
of such joint development shall be borne by each Party in accordance with
the Product Development Agreement, and the NAND Flash Memory Products
manufactured following such joint development shall be considered
non-Proprietary NAND Flash Memory Products for purposes of Section 6.5(d);
provided, however, the NAND Flash Memory Products set forth in Exhibit A
to the Product Development Agreement shall be deemed to be non-Proprietary
NAND Flash Memory Products without any action by the Coordinating
Committee. Subject to the foregoing, if the Coordinating Committee does
not unanimously decide that such planned development shall be undertaken
jointly, then the Originating Party may, at its sole discretion, either
(i) transfer to the Non-Originating Party the technology, including the
items in Exhibit C to the Product Development Agreement relating to such
technology, used to manufacture such NAND Flash Memory Products on a
royalty-free basis, whereupon such NAND Flash Memory Products shall be
considered non-Proprietary NAND Flash Memory Products, or (ii) treat such
NAND Flash Memory Products as Proprietary NAND Flash Memory Products for
purposes of Section 6.5(d). In the event the Originating Party elects to
treat any NAND Flash Memory Products as Proprietary NAND Flash Memory
Products in accordance with the preceding sentence, but thereafter the
Coordinating Committee unanimously determines that such Proprietary NAND
Flash Memory Products should be developed jointly, the Originating Party
shall transfer to the other Party the technology used to manufacture such
NAND Flash Memory Products on reasonable terms and conditions to be
mutually agreed upon by the Parties, whereupon such Proprietary NAND Flash
Memory Products shall be treated as non-Proprietary NAND Flash Memory
Products.
6.6 Engineering Wafers and Development Expense. Each Party will have full
access to all operational and engineering data and reports related to
engineering wafers manufactured at Y3.
(a) Engineering wafers and development expenses are further and more
completely defined in four categories: Common R&D Development Expenses, Y3
Direct R&D Development Products, Evaluation Wafers, and Qualification
Wafers (each as defined below).
(i) "Common R&D Development Expenses" means [***]. The Parties agree to
set up pilot-line(s) [***]. The Parties confirm their intent that
[***]. Notwithstanding the foregoing, the Parties shall meet from
time to time [***]. The Parties shall meet at the end of each
quarter to determine if any engineering activities performed during
the quarter [***], whether agreed in advance or not [***]. If any
activities performed [***] are agreed by the parties to [***].
(ii) "Y3 Direct R&D Development Products" are those products developed
[***].
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
17
(iii) "Evaluation Wafers" are those wafers manufactured [***]. Both
parties are entitled to receive evaluation wafers [***]. The cost of
Evaluation Wafers is [***].
(iv) "Qualification Wafers" are those wafers [***]. The Parties will
discuss and agree on the appropriate quantity of Qualification
Wafers required for each Y3 NAND Flash Memory Product. [***].
(b) [***].
6.7 Creation of Management Committee. The management committee established by
the Parties pursuant to the FVC Japan Master Agreement to facilitate
management of the operations of FVC Japan (the "Management Committee")
shall do the same for Flash Partners, as detailed in this Section 6.7.
(a) Authority. The Management Committee shall have the authority to (i) advise
Flash Partners with respect to policy and operating matters common to
Toshiba and SanDisk as well as on such other matters as Flash Partners may
refer to the Management Committee from time to time, (ii) hear and seek to
resolve any disputes regarding operational matters or alleged breaches of
any Master Operative Documents (including dispute resolution), and (iii)
take the actions specified to be taken by the Management Committee in this
Agreement or any Master Operative Document, including in this Section 6.7
and in Section 6.1.
(b) Members of the Management Committee; Voting; etc.
(i) The Management Committee shall consist of six members (the
"Committee Representatives"), three of whom shall be appointed by
Toshiba, and three of whom shall be appointed by SanDisk (for such
purpose, each of the Parties is referred to in this Section 6.7 as
an "Appointing Party"). Each Appointing Party shall be entitled to
appoint an alternate Committee Representative to serve in the place
of any Committee Representative appointed by such Appointing Party
should any such Committee Representative be unable to attend a
meeting. Each Party shall be entitled to invite a reasonable numbers
of observers to all Management Committee meetings.
(ii) Each Committee Representative or alternate Committee Representative
shall serve at the pleasure of the designating Appointing Party and
may be removed as such, with or without cause, and his successor
designated, by the designating Appointing Party. Each Appointing
Party shall have the right to designate a replacement Committee
Representative in the event of any vacancy among such Appointing
Party's appointees.
(iii) Each Appointing Party shall bear any cost and expense incurred by
any Committee Representative or alternate Committee Representative
designated by such Appointing Party to serve on the Management
Committee, and no Committee Representative or alternate Committee
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
18
Representative shall be entitled to compensation from Flash
Partners for serving in such capacity.
(iv) Each Appointing Party shall notify the other Appointing Party and
Flash Partners in writing of the name, business address and
business telephone and facsimile numbers of each Committee
Representative and each alternate Committee Representative that
such Appointing Party has been appointed to the Management
Committee. Each Appointing Party shall promptly notify the other
Appointing Party and Flash Partners of any change in such
Appointing Party's appointments or of any change in any such
address or number.
(v) For purposes of any approval or action taken by the Management
Committee, each Committee Representative shall have one vote. All
of the votes eligible to be cast at any meeting must be voted in
favor of any action to be taken by the Management Committee at such
meeting.
(vi) At any meeting of the Management Committee, a Committee
Representative, in the absence of one or more other Committee
Representatives appointed by the same Appointing Party or an
alternate Committee Representative, may cast the vote such absent
Committee Representatives would otherwise be entitled to cast.
(vii) The quorum necessary for any meeting of the Management Committee
shall be those Committee Representatives entitled to cast all of
the votes held by the members of the Management Committee. A quorum
shall be deemed not to be present at any meeting for which notice
was not properly given under Section 6.7(c), unless the Committee
Representative or Committee Representatives as to whom such notice
was not properly given attend(s) such meeting without protesting
the lack of notice or duly execute(s) and deliver(s) a written
waiver of notice or a written consent to the holding of such
meeting.
(viii) Each appointment by an Appointing Party to the Management Committee
shall remain in effect until the Appointing Party making such
appointment notifies the other Appointing Party and Flash Partners
in writing of a change in such appointment. The resignation or
removal of a Committee Representative shall not invalidate any act
of such Committee Representative taken before the giving of such
written notice of the removal or resignation of such Committee
Representative (or alternate Committee Representative).
(c) Meetings, Notice, etc.
(i) Meetings of the Management Committee shall be held at such location
or locations as may be selected by the Management Committee from
time to time.
19
(ii) Regular meetings of the Management Committee shall be held on such
dates and at such times as shall be determined by the Management
Committee and shall be held as required or as requested by the Board
of Directors.
(iii) Notice of any regular meeting or special meeting pursuant to Section
6.7(c)(iv) shall be given to each Committee Representative at least
ten (10) Business Days prior to such meeting in the case of a
meeting in person or at least five (5) Business Days prior to such
meeting in the case of a meeting by conference telephone or similar
communications equipment pursuant to Section 6.7(c)(vi), which
notice shall state the purpose or purposes for which such meeting is
being called and include any supporting documentation relating to
any action to be taken at such meeting.
(iv) Special meetings of the Management Committee may be called by any
Committee Representative by notice given in accordance with the
notice requirements set forth in this Section 6.7, which notice
shall state in reasonable detail the purpose or purposes for which
such meeting is being called; provided, that, the Committee
Representatives appointed by the Appointing Party that is not
represented by the Committee Representative calling such special
meeting shall be entitled to in good faith select a convenient
location for the meeting and to suggest an alternative time or times
if the designated time is not convenient for them. Except as set
forth in Section 6.7(c)(vi), no action may be taken and no business
may be transacted at such special meeting which is not identified in
such notice unless (A) such action or business is incidental to the
action or business for which the special meeting is called or (B)
such action or business does not materially adversely affect the
Parties, any of their respective Affiliates which are parties to any
of the Master Operative Documents or Flash Partners. Minutes of each
Management Committee meeting shall be sent by facsimile to all
Committee Representatives within ten (10) Business Days after such
meeting. Material to be presented at any Management Committee
meeting shall be sent by facsimile, electronic mail or delivered in
hard copy to all Committee Representatives together with the notice
described in Section 6.7(c)(vi).
(v) The actions taken by the Management Committee at any meeting,
however called and noticed, shall be as valid as though taken at a
meeting duly held after regular call and notice if (but not until),
either before, at or after the meeting, any Committee Representative
as to whom such meeting was improperly held duly executes and
delivers a written waiver of notice or a written consent to the
holding of such meeting; provided, however, any Committee
Representative who is present at a meeting and does not protest the
failure of notice shall be deemed to have received adequate notice
thereof. A vote of the Management Committee may be taken only either
in a meeting of the members thereof duly called and held or by the
execution by the Committee Representatives eligible to cast all
20
the votes on the Management Committee without a meeting of a consent
setting forth the action so taken, and identified as a consent of
the Committee Representatives pursuant to this Section 6.7.
(vi) Upon the consent of all Committee Representatives, a meeting of the
Management Committee may be held by conference telephone or similar
communications equipment by means of which all Committee
Representatives participating in the meeting can hear and be heard
by all other participants, provided, that, such communications
equipment continues to be operational throughout the meeting. Any
Committee Representative may elect to participate in a meeting by
conference telephone or similar communications equipment upon
sufficient advance notice to permit arrangements therefor to be
made. At any meeting, the Management Committee shall consider (A)
any items added to the Management Committee agenda for discussion by
the Parties and (B) such other matters as the Management Committee
decides to review.
(vii) The Management Committee shall, from time to time, elect one of its
members to preside at its meetings, which presiding member shall
alternate annually if requested by either Party. The Management
Committee may establish reasonable rules and regulations to (A)
require officers to call meetings and perform other administrative
duties, (B) limit the number and participation of observers, if any,
and require them to observe confidentiality obligations and (C)
otherwise provide for the keeping and distribution of minutes and
other internal Management Committee governance matters not
inconsistent with the terms of this Agreement.
6.8 FP Secondees. SanDisk will have the right (after consultation with
Toshiba) to second employees to Flash Partners ("FP Secondees"), provided
that the numbers and responsibilities of such FP Secondees will be
discussed by the Parties in advance of seconding such employees. [***]:
(a) [***]
(b) [***]
(c) [***]
(d) [***]
(e) [***]
(f) [***]
(g) All FP Secondees will remain employees of SanDisk. Each Party will
indemnify the other Party and Flash Partners from any claim by any of such
Party's employees, consultants or agents (such Party being the "Employer")
(i) based on other than willful misconduct of such Employer, its
employees, consultants or
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
21
agents; or (ii) that he or she has rights, or is owed obligations, as an
employee of the Party that is not the Employer.
6.9 Non-solicitation of Employees. So long as the business of Flash Partners
continues, each Party (and each of its respective Affiliates) shall not,
without the prior written consent of the other Party, directly recruit or
solicit any employee or director of Flash Partners to leave his or her
employment with Flash Partners prior to the period ending twenty-four (24)
months after the FP Termination Date; provided, however, that placement of
employment advertisements or other general solicitation for employees not
specifically targeted to the employees or directors of Flash Partners
shall not constitute direct recruitment. In the event of the dissolution
and liquidation of Flash Partners, either Party (or any Affiliate of
either Party) may solicit any former employee of such dissolved and
liquidated company, but neither Party (nor any of its Affiliates) shall be
required to employ any such Person. If all of the FP Units held by one
Party are purchased by the other Party or its designee, if requested by
the acquiring Party the Parties shall reach agreement on a reasonable
transition plan (without profit to the seller) in connection with the
services provided to Flash Partners, as applicable, by employees and
contractors of the selling Party.
6.10 Debt and Lease Financing.
(a) Each Party shall provide or procure 50% of the financing necessary to
enable committed or agreed capacity expansions or other investment in the
Y3 Facility or Flash Partners.
(b) The Parties currently intend, but are not obligated, to structure the
financing for equipment purchases by Flash Partners necessary to implement
the Ramp-Up Plan as follows:
(i) Flash Partners will enter into equipment lease or loan agreements
and pledge the financed equipment as collateral;
(ii) Flash Partners will secure external financing for approximately 50%
of the initial purchase price of its tools and each Party will
provide equity capital contributions and loans (on a subordinated
basis) for the remaining cash requirements of Flash Partners
necessary to execute the Ramp-Up Plan;
(iii) each Party will severally and not jointly and through separate
arrangements guarantee as close as possible to 50% of Flash
Partners' obligations under such lease or loan agreements (any
financing separately guaranteed or provided by Toshiba for Flash
Partners or otherwise for investment in the Y3 Facility, "Toshiba
Financing", any such financing separately guaranteed or provided by
SanDisk for Flash Partners or otherwise for investment in the Y3
Facility "SanDisk Financing" and the Toshiba Financing and SanDisk
Financing, each a "Financing"); and
22
(iv) the Parties will attempt to obtain the foregoing financing from the
same financial institution, but under separate agreements that
expressly disclaim any joint and several liability of the Parties.
(c) With respect to any Toshiba Financing or SanDisk Financing, the following
shall apply:
(i) [***].
(ii) Unless otherwise expressly agreed by both Parties in writing in each
case, all Toshiba Financing and all SanDisk Financing shall create
only several obligations of the Parties and no joint and several
obligations or liability. Toshiba (with respect to Toshiba
Financing) and SanDisk (with respect to SanDisk Financing) hereby
indemnifies and holds harmless the other Party and its Indemnified
Parties from any claims by any financial institution or other Person
that the other Party has any liabilities or obligations with respect
to, respectively, any Toshiba Financing or SanDisk Financing (unless
joint liability has been agreed pursuant to the first sentence of
this Section 6.10(c)(ii)).
(iii) Flash Partners will use commercially reasonable efforts to comply
with the requirements of any financing sources. Flash Partners will
make available to each Party one-half of its assets (with as near as
practicable cost, collateral value and type) to secure such Party's
Financing (whether external or loans from a Party or its
Affiliates).
(d) If the lender under the Financing for either Party (as the "Defaulting
Party") takes significant actions to enforce its right in the collateral,
then the other Party (as the "Non-Defaulting Party") shall have the right,
but not the obligation, to cure the default giving rise to the lender's
enforcement action. If the Non-Defaulting Party exercises such cure right,
then the Non-Defaulting Party's rights in any subject collateral shall be
superior to the Defaulting Party's and the Non-Defaulting Party may
exercise one of the following options:
(i) the Non-Defaulting Party (A) shall have a claim against the
Defaulting Party for reimbursement of any payments made by the
Non-Defaulting Party on the Defaulting Party's behalf (which will be
subordinate to the lender's claims and bear interest at a rate 500
basis points in excess of the rate being charged by the lender to
the Defaulting Party) and (B) shall have the right, until and unless
the Defaulting Party pays in full the
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
23
obligation to the Non-Defaulting Party under foregoing clause (A),
to take over the increment of production of the Y3 Facility
represented by the collateral with respect to which the lender took
significant actions to enforce its rights; or
(ii) the Non-Defaulting Party shall have the right to terminate the
Operating Agreement pursuant to Section 11.6 thereof (Foreclosure
Default).
6.11 Other Activities. Except as expressed in Section 5.6 and in the Common R&D
Agreement, neither Party nor any of their respective Affiliates shall: (i)
fabricate NAND Flash Memory Integrated Circuits at any location other than
the Yokkaichi Facility or any other fabrication facility agreed upon by
the Parties in writing; (ii) have any third party fabricate NAND Flash
Memory Integrated Circuits; or (iii) have any right to fabricate NAND
Flash Memory Integrated Circuits beyond the capacity as limited pursuant
to this Section 6, as such capacity limitations may be amended from time
to time in accordance with this Section 6. For the avoidance of doubt,
nothing contained in the foregoing shall restrict the Parties from
engaging in any other activities, including, without limitation, (i)
designing any NAND Flash Memory Product; (ii) selling any NAND Flash
Memory Product to any customer; (iii) entering into any equipment purchase
or material supply agreements; or (iv) entering into any patent licensing
arrangement; and nothing in the foregoing shall restrict Toshiba from
installing any manufacturing line in the Toshiba Foundry Facility subject
to the capacity limitations set forth in Section 6 of the FVC Japan Master
Agreement and as provided herein, as such capacity limitations may be
amended from time to time in accordance with this Section 6. For purposes
of this Section 6.11, "NAND Flash Memory Integrated Circuits" means ICs
included in the definition of NAND Flash Memory Products pursuant to
Section 3.2.
6.12 Protection of Intellectual Property. Both Parties recognize that it is
important for the success of the Y3 NAND Flash Memory Products business to
promote the adoption of such Y3 NAND Flash Memory Products with a wide
variety of customers and applications, whether for card use or non-card
use, and with such recognition, each Party shall use reasonable efforts to
protect and enhance the value of Y3 NAND Flash Memory Products. Further,
where feasible, each Party shall share with Flash Partners internally
prepared analyses of competitive products prepared by either Party so as
to allow Flash Partners to respond to such information and remain
competitive in the marketplace; provided, that neither Party warrants as
to the accuracy or completeness of any such analysis so provided.
6.13 Tools.
(a) All tools for the Y3 Facility shall be purchased by Flash Partners (or a
lessor for Flash Partners' benefit as contemplated by Section 6.10(a)) and
all such purchases shall be agreed upon by the Parties. Toshiba shall,
from the Toshiba Semiconductor Company headquarters and at its own
expense, provide Flash Partners with tool purchase service support and
negotiate with vendors on Flash
24
Partners' behalf. SanDisk shall have the right to participate in such
negotiations or other tool purchase activities of Toshiba, at SanDisk's
own expense.
(b) All purchases of replacement tools for Flash Partners, to the extent the
procedures or requirements therefor are not set forth in a Master
Operative Document, shall be done only by agreement of the Parties.
7. OTHER AGREEMENTS
To supplement their agreement as expressed in certain of the Master
Operative Documents, the Parties agree as set forth in this Section 7. To
the extent of any conflict between this Section 7 and any other Master
Operative Document referenced in this Section 7, the other Master
Operative Document shall prevail.
7.1 Flash Partners Management.
(a) As contemplated by the FP Operating Agreement, the Y3 Operating
Committee's purpose is to give both Parties the ability to influence the
day to day operating decisions of Flash Partners and the Y3 Facility. The
Y3 Operating Committee is intended to be a collaborative body with
real-time communications, respectful consultation and dispute resolution
with the goal of making the Y3 Facility the most competitive (cost and
technology) memory fabrication facility in the world.
(b) If the Y3 Operating Committee is unable to decide an issue (by agreement
of its two members) such issue shall be referred to the Board of
Directors. Special meetings of the Board of Directors may be noticed for
issues requiring urgent resolution. The Parties contemplate that while a
special meeting of the Board of Directors is being noticed, their
respective management teams will discuss any issue that the Y3 Operating
Committee could not resolve.
(c) If the Board of Directors is unable to decide an issue (by unanimous
agreement), such issue shall be referred to the Management Committee for
resolution, which shall be vested with final decision making authority.
This Agreement separately provides for procedures if the Management
Committee is unable to reach agreement on such issue.
7.2 Y3 Facility. Toshiba has designed and is constructing the Y3 Facility at
its sole cost and expense. The Y3 Facility is scheduled to be completed by
[***], provided that Toshiba shall have no liability to SanDisk,
any SanDisk Affiliate or Flash Partners if completion is not achieved by
such time. The depreciation charges for Y3 will be passed on to Flash
Partners as further described in Section 7.3(d).
7.3 FP Foundry Agreement. Flash Partners and Toshiba shall enter into the FP
Foundry Agreement at the Closing. The FP Foundry Agreement provides for
ordering procedures, prices, delivery, cost reporting and other specific
terms and conditions for the manufacture by Toshiba and supply to Flash
Partners of Y3 NAND Flash Memory Products, which shall be consistent with
the following basic terms:
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
25
(a) Facilities, Equipment and Raw Materials. The manufacturing facilities will
be located at the Y3 Facility and die sort will be located [***] or such
other place as the Parties may agree upon. Flash Partners and Toshiba will
enter into an exclusive lease agreement with respect to the Y3 Facility
and Flash Partners' manufacturing equipment located in the Y3 Facility to
be used in the manufacture of Y3 NAND Flash Memory Products by Toshiba.
Toshiba shall be responsible for obtaining the raw materials and services
to be used in the manufacture of Y3 NAND Flash Memory Products.
(b) Production. Toshiba will manufacture Y3 NAND Flash Memory Products at the
Y3 Facility for Flash Partners ordered by Toshiba and SanDisk under the
terms and conditions of the FP Purchase and Supply Agreements. Flash
Partners and Toshiba (from the Yokkaichi Facility) will use their best
efforts to achieve the Ramp-Up Plan manufacturing capacity (the "Y3
Facility Target Capacity"). Wafers will be sorted between the Parties such
that aggregate yield losses will be shared on an equal basis.
(c) Operating Relationship. Toshiba shall provide all employees necessary for
the manufacturing of the Y3 NAND Flash Memory Products.
(d) Consideration to be Paid to Toshiba. Toshiba will be compensated by Flash
Partners as provided in Section 4 of the FP Foundry Agreement.
(e) No Duplication of Costs or Expenses. It is the intent of the Parties that
any payments made by SanDisk under or pursuant to any Master Operative
Documents or FVC Japan Operative Documents shall not be duplicative and
SanDisk shall in no event be required to pay or contribute more than once
for any service or product provided under such agreements, if such service
is provided under more than one agreement. In addition, if SanDisk makes a
direct payment for any service provided under any such agreement, the cost
incurred by Toshiba (from the Yokkaichi Facility), FVC Japan or Flash
Partners, as the case may be, in connection with the provision of such
service shall not be included in the applicable wafer price charged to
SanDisk.
(f) Exclusivity. The Yokkaichi Facility shall be Flash Partners' exclusive
manufacturing source for output of Y3 NAND Flash Memory Products. Flash
Partners may seek external manufacturing sources for output in excess of
the Yokkaichi Facility's capacity upon unanimous approval by the
Management Committee.
7.4 FP Purchase and Supply Agreements. Flash Partners and each of the Parties
or their respective Affiliates will enter into substantially identical FP
Purchase and Supply Agreements providing for specific terms and conditions
for the purchase by the Parties of Y3 NAND Flash Memory Products from
Flash Partners, which shall be consistent with the following basic terms:
(a) Manufacturing. Flash Partners shall manufacture or cause to be
manufactured Y3 NAND Flash Memory Products as contemplated by Section 7.3.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
26
(b) Purchase Commitment. Except as contemplated in Section 6.3(c)(ii), each
Party shall (itself or through Affiliates) purchase one half (based on a
measure of equivalent lots out per week with the equivalency being weighed
based on the process complexity factors (as calculated by a formula to be
mutually determined by the Parties) of the Y3 NAND Flash Memory Products)
of the total L/M of Y3 NAND Flash Memory Products. The foregoing purchase
commitment of each Party shall not be subject to reduction unless agreed
in writing by the other Party, which may grant or withhold such approval
in its sole discretion.
(c) Sales Price for Y3 NAND Flash Memory Products Purchased by the Parties.
The sales price charged by Flash Partners to the Parties for wafers
manufactured at Y3 shall be the sum of:
[***]
(d) Other Cost Items. Other items related to the manufacture of Y3 NAND Flash
Memory Products will be charged on a monthly basis from Flash Partners to
the Parties and will include the following:
[***]
7.5 Other Matters.
(a) Forecasts/Production Planning. Each Party will submit forecasts, on a
rolling six-month basis, directly to Flash Partners, as further provided
in the Purchase and Supply Agreements. The one-time cost necessary for
[***] will be borne by SanDisk, which, together with the one-time
production control cost described in Section 7.5(b) is to be approximately
[***]. Flash Partners production planning will hold a monthly production
planning meeting with representatives of each Party, as further provided
in the Purchase and Supply Agreements. At such meetings, the Parties will
agree on a production plan for [***] which plan will be final (and the
related forecast will be deemed to be covered by a binding purchase
order).
(b) Production Control. Flash Partners will provide [***] on a
non-discriminatory basis to SanDisk with respect to [***], provided that
the actual, one-time cost necessary for establishing a new system to
provide [***] to SanDisk will be borne by SanDisk, which, together with
the one-time forecast submission system cost described in Section 7.5(a),
is estimated to be [***]. Each Party (through the Y3 Management Committee)
will have the right to discuss the production schedule, planned wafer
starts and planned wafer-outs for Flash Partners and make such reasonable
requests as it deems in its respective commercial interest and Flash
Partners, operations will honor such reasonable requests.
(c) Operating Reports. SanDisk will have full access to any management or
operation reports related to Flash Partners or Flash Partners' business
through the Y3 Operating Committee (as defined in the FP Operating
Agreement). Management and operating reports related to Flash Partners or
Flash Partners' business as mutually agreed from time to time will be
simultaneously made
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
27
available in Japanese and English to each Party. Upon request, Toshiba
employees will explain such reports to SanDisk's employees and respond to
questions from SanDisk's employees, but Toshiba will not be responsible
for SanDisk's failure to understand such reports.
(d) Insurance. Toshiba shall maintain or arrange property insurance covering
assets owned or leased by Flash Partners and business interruption
insurance in respect of the business of Flash Partners, the scope and
amounts of which shall be consistent with Toshiba's practices at the
Yokkaichi Facility and as required by any lender. This coverage shall
provide basically full replacement value of all Flash Partners owned and
leased equipment, subject to valuation as part of Toshiba's annual
insurance policy renewal, and shall name Flash Partners as a beneficiary
in respect of assets owned or leased by it and Flash Partners' employee
expenses covered by business interruption insurance. On an annual basis,
or when requested by either Party, the Y3 Operating Committee shall
discuss and review the current insurance coverage and/or the need for any
additional property or business interruption insurance in respect of Flash
Partners' assets or business. Further, SanDisk reserves the right to seek
to arrange additional property or business interruption insurance for its
own account in respect of Flash Partners' assets or business. If SanDisk
seeks such additional property or business interruption insurance, Toshiba
shall cooperate in good faith to provide such information and access as is
reasonably necessary for SanDisk to arrange such insurance. If Toshiba
makes a recovery from a third party (other than an insurer per the above)
in respect of both assets of Flash Partners and other assets, then Toshiba
shall allocate to Flash Partners a share of the net amount of such
recovery in proportion to the losses suffered by Flash Partners and total
losses suffered by Flash Partners and Toshiba.
8. TERMINATION
8.1 Termination.
(a) Termination of any Master Operative Document by either Party shall be done
only in good faith.
(b) This Agreement shall be terminated automatically upon the earlier of the
Transfer of all of a Party's FP Units to the other Party (or its
Affiliate) or upon completion of the dissolution and liquidation of Flash
Partners pursuant to Section 11
28
(Dissolution) of the FP Operating Agreement (the date of such Transfer or
dissolution and liquidation, the "FP Termination Date").
(c) Upon termination of this Agreement resulting from an event of dissolution
of Flash Partners due to the expiration of Flash Partners pursuant to
Section 11.1(a) (Expiration) of the FP Operating Agreement:
(i) the Parties shall further amend the Cross License Agreement, as then
in effect, to specify that each Party's patents issued or issuing on
patent applications entitled to an effective filing date prior to
the FP Termination Date are licensed on a royalty-free basis for the
duration of such patents. The scope of the licenses as amended
pursuant to this Section 8.1(c)(i) shall not be greater than the
scope of those granted under the Cross License Agreement, as in
effect as of the FP Termination Date.
(ii) Toshiba shall grant to SanDisk, effective upon the FP Termination
Date, a non-exclusive, non-transferable (except to Affiliates of
SanDisk), non-sub-licensable, fully paid up, royalty-free license to
make, have made, use, sell and have sold NAND Flash Memory Products
anywhere in the world utilizing the NAND technology transferred to
and/or utilized at the Yokkaichi Facility, and SanDisk shall have
full access to all such know-how at the Yokkaichi Facility which has
been transferred to the Yokkaichi Facility prior to the FP
Termination Date.
(d) Upon a termination of this Agreement resulting from (i) an event of
dissolution of Flash Partners or (ii) one Party's acquisition of all of
the other Party's FP Units (the acquirer thereof referred to hereinafter
as the "Acquiring Party" and the seller thereof referred to hereinafter as
the "Selling Party") pursuant to Section 11.5 (Dissolution Upon Notice) of
the FP Operating Agreement:
(i) Toshiba or the Acquiring Party, as the case may be, will, upon the
request, prior to the FP Termination Date, of (A) SanDisk (such
request to be made at the time of its notice pursuant to Section
11.5 of the FP Operating Agreement) in the case of the dissolution
of Flash Partners or (B) the Selling Party (each, a "Requesting
Party"), as the case may be, continue to manufacture NAND Flash
Memory Products for the Requesting Party (not to exceed the
Requesting Party's capacity allocation available from Flash Partners
under this Agreement as of the FP Termination Date (the "Termination
Capacity")) for a period of eighteen (18) months following the
Termination Date in the following ramp-down manner:
(A) During the first six months following the FP Termination Date:
100% of the Termination Capacity
(B) During the 7th through the 12th month following the FP
Termination Date: 75% of the Termination Capacity
(C) During the 13th through the 18th month following the FP
Termination Date: 50% of the Termination Capacity.
29
(ii) Toshiba and SanDisk and their respective Affiliates shall have a
perpetual, fully paid-up, royalty-free right to use technology
previously transferred to one another during the term of this
Agreement.
(iii) The Parties shall further amend the Cross License Agreement to
specify that each Party's patents issued or issuing on patent
applications entitled to an effective filing date prior to the FP
Termination Date are licensed on a royalty free basis for the
duration of such patents. The scope of the licenses as amended
pursuant to this Section 8.1(d)(iii) shall not be greater than the
scope of those granted under the Cross License Agreement, as in
effect as of FP Termination Date.
(iv) Upon termination of this Agreement resulting from an event of
dissolution of Flash Partners caused by Toshiba's election to
withdraw from Flash Partners pursuant to the FP Operating Agreement,
Toshiba hereby grants to SanDisk, effective upon the FP Termination
Date, a non-exclusive, non-transferable (except to Affiliates of
SanDisk), non-sub-licensable, fully paid-up, royalty-free license to
make, have made, use, sell and have sold NAND Flash Memory Products
anywhere in the world utilizing the NAND technology transferred to
and/or utilized at the Yokkaichi Facility, and SanDisk shall have
full access to all such know-how at the Yokkaichi Facility which has
been transferred to the Yokkaichi Facility prior to the FP
Termination Date.
(e) Upon termination of this Agreement resulting from an event of dissolution
of Flash Partners or Toshiba's acquisition of SanDisk's FP Units pursuant
to Section 11.4 (Dissolution By Unilateral Option) of the FP Operating
Agreement:
(i) From the Yokkaichi Facility, Toshiba will, upon request of SanDisk
given within sixty (60) days of the notice given by SanDisk pursuant
to Section 11.4 of the FP Operating Agreement, continue to
manufacture products for SanDisk for a period of eighteen (18)
months following the FP Termination Date in accordance with the
following ramp-down manner; provided, however, such capacity
allocation for SanDisk shall not exceed its capacity allocation
available from Flash Partners under this Agreement as of the FP
Termination Date (the "SanDisk Termination Capacity"):
(A) During the first six months following the FP Termination Date:
100% of the SanDisk Termination Capacity
(B) During the 7th through the 12th month following the FP
Termination Date: 75% of the SanDisk Termination Capacity
(C) During the 13th through the 18th month following the FP
Termination Date: 50% of the SanDisk Termination Capacity.
(ii) The Parties and their respective Affiliates shall have a perpetual,
fully paid-up, royalty-free right to use technology previously
transferred to one another during the term of this Agreement.
30
(iii) The Parties shall further amend the Cross License Agreement to
specify that, with respect only to Y3 NAND Flash Memory Products and
any other Licensed Products defined in the License Agreement and
manufactured with 300mm wafers at any facility, each Party's patents
issued or issuing on patent applications entitled to an effective
filing date prior to the FP Termination Date are licensed at the
royalty rates specified in Schedule 8.1(e) until March 31, 2013;
provided, that after such five (5) year period, such license shall
be on a royalty free basis and provided, further, that at any time
during such five year period, both Parties shall negotiate in good
faith for up to one hundred and eighty (180) days as requested by
either Party to mutually agree on royalty rates for patents filed by
each Party after the FP Termination Date. The scope of the licenses
as amended pursuant to this Section 8.1(e)(iii) shall not be greater
than the scope of those granted under the Cross License Agreement,
as in effect as of the FP Termination Date.
(f) Upon termination of this Agreement resulting from an event of dissolution
of Flash Partners or one Party's acquisition of the other Party's FP Units
following a Deadlock (as defined in the FP Operating Agreement) pursuant
to Section 10.3 (Dispute Resolution; Deadlock) of the FP Operating
Agreement:
(i) In the case of one Party's acquisition of the other Party's FP Units
pursuant to Section 10.4(e) of the FP Operating Agreement, the
Acquiring Party shall continue to manufacture products for the other
Party (not to exceed the other Party's Termination Capacity) for a
period of eighteen (18) months following the FP Termination Date in
accordance with the following ramp down manner:
(A) During the first six months following the FP Termination Date:
100% of the Termination Capacity
(B) During the 7th through the 12th month following the FP
Termination Date: 75% of the Termination Capacity
(C) During the 13th through the 18th month following the FP
Termination Date: 50% of the Termination Capacity.
(ii) The Parties and their respective Affiliates shall have a perpetual,
fully paid-up, royalty-free right to use technology previously
transferred to one another during the term of this Agreement.
(iii) The Parties shall further amend the Cross License Agreement to
specify that, with respect only to Y3 NAND Flash Memory Products and
any other Licensed Products defined in the License Agreement and
manufactured with 300mm wafers at any facility, each Party's patents
issued or issuing on patent applications entitled to an effective
filing date prior to the FP Termination Date are licensed: (x) at
the royalty rates specified in Schedule 8.1(f) until March 31, 2012;
(y) at the royalty rates specified in Schedule 8.1(e) from April 1,
2012 through December 31,
31
2014; and (z) thereafter, on a royalty-free basis. Both Parties
shall negotiate in good faith for up to one hundred and eighty (180)
days upon request of either Party at any time during the five-year
period after the FP Termination Date to agree on royalty rates for
patents filed by each Party after the FP Termination Date. The scope
of the licenses as amended pursuant to this Section shall not be
greater than the scope of those granted under the Cross License
Agreement, as in effect as of the FP Termination Date.
(g) Upon termination of this Agreement resulting from an event of
dissolution of Flash Partners or a Party's acquisition of the other
Party's FP Units described in Section 11.3 (Dissolution Upon Event
of Default) of the FP Operating Agreement:
(i) The Parties shall further amend the Cross License Agreement to
specify that, with respect only to Y3 NAND Flash Memory
Products and any other Licensed Products defined in the
License Agreement and manufactured with 300mm wafers at any
facility, each Party's patents issued or issuing on patent
applications entitled to an effective filing date prior to the
FP Termination Date are licensed at the royalty rates
specified in Schedule 8.1(g) for seven (7) years after the FP
Termination Date or until the end of calendar 2019, whichever
comes first, and thereafter such licenses shall be on a
royalty-free basis.
(ii) In the event that Toshiba or an Affiliate of Toshiba is the
Defaulting Party, Toshiba shall grant to SanDisk, effective
upon such date of termination, a non-exclusive,
non-transferable (except to Affiliates of SanDisk),
non-sub-licensable, fully paid-up, royalty-free license to
make, have made, use, sell and have sold NAND Flash Memory
Products anywhere in the world utilizing the NAND technology
transferred to and/or utilized at the Yokkaichi Facility, and
SanDisk shall have full access to all such know-how at the
Yokkaichi Facility which has been transferred to the Yokkaichi
Facility prior to the FP Termination Date.
(h) Upon termination of this Agreement resulting from an event of
dissolution described in Section 11.1(f) (Bankruptcy Event) of the
FP Operating Agreement:
(i) If such termination is caused by a Bankruptcy Event in respect
of Toshiba, (x) the license granted to SanDisk under Toshiba
Licensed Patents pursuant to the Cross License Agreement shall
continue on a royalty-free basis, and (y) Toshiba shall grant
to SanDisk, effective upon such date of termination, a
non-exclusive, non-transferable (except to Affiliates of
SanDisk), non-sub-licensable, fully paid-up, royalty-free
license to make, have made, use, sell and have sold NAND Flash
Memory Products anywhere in the world utilizing the NAND
technology transferred to and/or utilized at the Yokkaichi
Facility, and SanDisk shall have full access to all such
know-how at the Yokkaichi Facility which has been transferred
to the Yokkaichi Facility prior to the Termination Date.
32
(ii) If such termination is caused by a Bankruptcy Event in respect of
SanDisk, the license granted to Toshiba under SanDisk Licensed
Patents (as defined in the Cross License Agreement) pursuant to the
Cross License Amendment shall continue on a royalty-free basis.
(i) Upon a termination of this Agreement resulting from a purchase and sale
transaction described in Section 11.6 (Financing Default) of the FP
Operating Agreement, there shall be no capacity ramp-down rights or
obligations and:
(i) If such termination is caused by a financing default in respect of
Toshiba, (x) the Parties shall further amend the Cross License
Agreement to specify that, with respect only to Y3 NAND Flash Memory
Products and any other Licensed Products defined in the License
Agreement and manufactured with 300mm wafers at any facility,
Toshiba's patents issued or issuing on patent applications entitled
to an effective filing date prior to the FP Termination Date are
licensed to SanDisk on a royalty-free basis, and (y) Toshiba shall
grant to SanDisk, effective upon such date of termination, a
non-exclusive, non-transferable (except to Affiliates of SanDisk),
non-sub-licensable, fully paid-up, royalty-free license to make,
have made, use, sell and have sold NAND Flash Memory Products
anywhere in the world utilizing the NAND technology transferred to
and/or utilized at the Yokkaichi Facility, and SanDisk shall have
full access to all such know-how at the Yokkaichi Facility which has
been transferred to the Yokkaichi Facility prior to the Termination
Date.
(ii) If such termination is caused by a financing default in respect of
SanDisk, the Parties shall further amend the Cross License Agreement
to specify that, with respect only to Y3 NAND Flash Memory Products
and any other Licensed Products defined in the License Agreement and
manufactured with 300mm wafers at any facility, SanDisk's patents
issued or issuing on patent applications entitled to an effective
filing date prior to the FP Termination Date are licensed to Toshiba
on a royalty-free basis.
(j) Termination of this Agreement shall not affect any surviving rights or
obligations of either Party set forth in the Product Development Agreement
and the Common R&D Agreement.
9. MISCELLANEOUS
9.1 Survival. Sections 1.3, 6.9, 6.10(d), 8 and 9 and Appendix A shall survive
the termination or expiration of this Agreement.
9.2 Entire Agreement. This Agreement, together with the exhibits, schedules,
appendices and attachments thereto, constitutes the agreement of the
Parties to this Agreement with respect to the subject matter hereof and
supersedes all prior written and oral agreements and understandings with
respect to such subject matter.
33
9.3 Governing Law. This Agreement shall in all respects be governed by and
construed in accordance with the internal laws of the State of California
applicable to agreements made and to be performed entirely within such
state without regard to the conflict of laws principles of such state.
Each Master Operative Document shall be governed in accordance with its
governing law provision and, in the absence of any such provision, by the
first sentence of this Section 9.3.
9.4 Assignment. Neither Party may transfer this Agreement or any of its rights
hereunder (except for any transfer to an Affiliate or in connection with a
merger, consolidation or sale of all or substantially all the assets or
the outstanding securities of such party, which transfer shall not require
any consent of the other party) without the prior written consent of the
other Party (which consent may be withheld in such other Party's sole
discretion), and any such purported transfer without such consent shall be
void.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
34
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
Parties as of the date first above written.
TOSHIBA CORPORATION
By: /s/ Masashi Muromachi
---------------------------
Name: Masashi Muromachi
Title: President and CEO
Semiconductor Company
Corporate Vice President
SANDISK CORPORATION
By: /s/ Eli Harari
---------------------------
Name: Eli Harari
Title: President and CEO
SANDISK INTERNATIONAL LIMITED
By: /s/ Eli Harari
---------------------------
Name: Eli Harari
Title: President
[Signature page to Flash Partners Master Agreement]
35
APPENDICES
Appendix A - Definitions, Rules of Construction and General
Terms and Conditions
EXHIBITS
(Flash Partners Documents)
Exhibit A1 - Unit Purchase Agreement
Exhibit A2 - FP Operating Agreement
Exhibit A3 - FP Foundry Agreement
Exhibit A4-1 - SanDisk Purchase and Supply Agreement
Exhibit A4-2 - Toshiba Purchase and Supply Agreement
Exhibit A5 - FP Patent Indemnification Agreement
Exhibit A6 - Mutual Environmental Indemnification Agreement
Exhibit A7 - Lease Agreement
(Joint Operative Documents)
Exhibit B1 - Common R&D and Participation Agreement
Exhibit B2 - Product Development Agreement
Exhibit B3 - Amendment No. 3 to Cross License Agreement
Exhibit B4 - Amendment No. 1 to Toshiba-SanDisk Services
Agreement
SCHEDULES
Schedule 4.5 - Litigation; Decrees
Schedule 4.7 - Patents and Proprietary Rights
Schedule 4.9 - Cross License Payment Obligations
Schedule 6.1 - Technology Transfer Costs
Schedule 6.3(b) - Ramp-Up Plan
Schedule 6.8 - SanDisk FP Secondees
Schedule 8.1(d) - Royalty in case of SanDisk Unilateral Termination
Schedule 8.1(e) - Royalty in case of Deadlock Termination
Schedule 8.1(f) - Royalty in case of Event of Default Termination
Schs., p. 1
SCHEDULE 4.5
LITIGATION, DECREES
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 1
SCHEDULE 4.7
PATENTS AND PROPRIETARY RIGHTS
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 2
SCHEDULE 4.9
CROSS LICENSE PAYMENT OBLIGATIONS
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 3
SCHEDULE 6.1
TECHNOLOGY TRANSFER COSTS
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 4
SCHEDULE 6.3(b)
RAMP-UP PLAN
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 5
SCHEDULE 6.8
SANDISK FP SECONDEES
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 6
SCHEDULE 8.1(e)
ROYALTY IN CASE OF SANDISK UNILATERAL TERMINATION
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 7
SCHEDULE 8.1(f)
ROYALTY IN CASE OF DEADLOCK TERMINATION
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 8
SCHEDULE 8.1(g)
ROYALTY IN CASE OF EVENT OF DEFAULT TERMINATION
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Schs., p. 9
APPENDIX A
DEFINITIONS, RULES OF CONSTRUCTION AND
DOCUMENTARY CONVENTIONS
The following shall apply unless otherwise required by the main body
of the agreement into which this Appendix A is being incorporated (as used
herein, "this Agreement"):
Definitions
The following terms shall have the specified meanings:
"Accountants" means such firm of internationally recognized
independent certified public accountants for Flash Partners as is appointed
pursuant to the FP Operating Agreement from time to time. Initially, the
Accountants shall be Shin Nihon & Company, an affiliate of Ernst & Young LLP.
"Affiliate" of any Person means any other Person which directly or
indirectly controls, is controlled by or is under common control with, such
Person; provided, however, that the term Affiliate, (a) when used in relation to
Flash Partners or any Subsidiary of Flash Partners, shall not include SanDisk
Corporation or Toshiba or any Affiliate of either of them, and (b) when used in
relation to SanDisk Corporation or Toshiba or any Affiliate of either of them,
shall not include Flash Partners or any Subsidiary of Flash Partners.
"Articles" means the Articles of Incorporation of Flash Partners.
"Bankruptcy Event" means, with respect to any Person, the occurrence
or existence of any of the following events or conditions: such Person (1) is
dissolved; (2) becomes insolvent or fails or is unable or admits in writing its
inability generally to pay its debts as they become due; (3) makes a general
assignment, arrangement or composition with or for the benefit of its creditors;
(4) institutes or has instituted against it a proceeding seeking a judgment of
insolvency or bankruptcy or any other relief under any bankruptcy or insolvency
law or other similar law affecting creditors' rights, or a petition is presented
for its winding up or liquidation and, in the case of any such proceeding or
petition instituted or presented against it, such proceeding or petition (A)
results in a judgment of insolvency or bankruptcy or the entry of an order for
relief or the making of an order for its winding up or liquidation or (B) is not
dismissed, discharged, stayed or restrained in each case within 60 days of the
institution or presentation thereof; (5) has a resolution passed by its
governing body for its winding-up or liquidation; (6) seeks or becomes subject
to the appointment of an administrator, receiver, trustee, custodian or other
similar official for it or for all or substantially all its assets (regardless
of how brief such appointment may be, or whether any obligations are promptly
assumed by another entity or whether any other event described in this clause
(6) has occurred and is continuing); (7) experiences any event which, under the
applicable laws of any jurisdiction, has an analogous effect to any of the
events specified in clauses (1) through (6) above; or (8) takes any action in
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
1
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the foregoing acts.
"Board of Directors" means the board of directors of Flash Partners.
"Burdensome Condition" means, with respect to any proposed
transaction, any action taken, or credibly threatened, by any Governmental
Authority or (except if such action or threat is frivolous) other Person to
challenge the legality of such proposed transaction, including (i) the pendency
of a governmental investigation (formal or informal) in contemplation of the
possible actions described in clauses (ii)(A), (ii)(B) or (ii)(C) below, (ii)
the institution of a suit or the written threat thereof (A) seeking to restrain,
enjoin or prohibit the consummation of such transaction or material part
thereof, to place any material condition or limitation upon such consummation or
to invalidate, suspend or require modification of any material provision of any
Operative Document, (B) challenging the acquisition by either Toshiba or SanDisk
International of its Units or (C) seeking to impose limitations on the ability
of either Toshiba or SanDisk International effectively to exercise full rights
as Unitholder of Flash Partners, including the right to act on all matters
properly presented to the parties pursuant to the FP Operating Agreement, or
(iii) an order by a court of competent jurisdiction having any of the
consequences described in (ii)(A), (ii)(B) or (ii)(C) above, or placing any
conditions or limitations upon such consummation that are unreasonably
burdensome in the reasonable judgment of the applicable Person.
"Business Day" means any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of California or Japan) on which commercial
banks are open for business in the State of California or Tokyo, Japan.
"Business Plan" means the Initial Business Plan and each subsequent
business plan, including budgets and projections for Flash Partners for each
relevant period, approved in accordance with Section 3.4(c) of the FP Operating
Agreement and complying with Section 3.4(b) of the FP Operating Agreement.
"Capital Contribution" means the capital contribution made by or
allocated to a Party by virtue of its ownership of Units, as indicated on
Schedule 6.1 to the FP Operating Agreement.
"Change of Control" with respect to a Person means a transaction or
series of related transactions as a result of which (i) more than 50% of the
beneficial ownership of the outstanding common stock or other ownership
interests of such Person (representing the right to vote for the board of
directors or similar organization of such Person) is acquired by another Person
or affiliated group of Persons, whether by reason of stock acquisition, merger,
consolidation, reorganization or otherwise or (ii) the sale or disposition of
all or substantially all of a Person's assets to another Person or affiliated
group of Persons.
"Closing" means the closing of the transactions described in
Sections 2.1 of the Master Agreement.
"Closing Date" means the date of the Closing.
2
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any successor statute. Any reference to a particular provision of
the Code or a treasury regulation promulgated pursuant to the Code means, where
appropriate, the corresponding provision of any successor statute or regulation.
"Common R&D Agreement" means the Amended and Restated Common R&D and
Participation Agreement, dated as of the Effective Date, between Toshiba and
SanDisk Corporation.
"Control" (including its correlative meanings "controlled by" and
"under common control with") means possession, directly or indirectly, of power
to direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise).
"Cross License Agreement" has the meaning given in the Master
Agreement.
"Effective Date" means September 10, 2004.
"Environmental Indemnification Agreement" means the Mutual
Contribution and Environmental Indemnification Agreement, dated as of the
Effective Date, between Toshiba and SanDisk Corporation.
"Event of Default" means, with respect to a Party, the occurrence or
existence of any of the following events or conditions which remains uncured for
sixty (60) days following receipt by such Party of written notice thereof:
(a) a Bankruptcy Event in respect of such Party or any Person of
which such Party is a Subsidiary; or
(b) the breach by such Party of its covenant in Section 9.1 of the
FP Operating Agreement or the breach by such Party of its covenant in
Section 5.1(b) of the Master Agreement, provided that a Change of Control
of a Party shall not be deemed an Event of Default.
"Fiscal Quarter" means, unless changed by the Board of Directors, a
calendar quarter.
"Fiscal Year" means the one year period commencing on April 1 of
each year.
"Flash Partners" means Flash Partners, Ltd., a Japanese limited
liability company (yugen kaisha).
"FP Foundry Agreement" means the Foundry Agreement, dated as of the
Effective Date, between Flash Partners and Yokkaichi.
"FP Operating Agreement" means the Operating Agreement, dated as of
the Effective Date, between Toshiba and SanDisk International.
3
"FP Operative Documents" has the meaning given in the Master
Agreement.
"FP Secondee" means an employee of SanDisk or any of its Affiliates
who is assigned to work at Flash Partners or any of its Subsidiaries by SanDisk
or such Affiliate as contemplated by Section 6.8 of the Master Agreement.
"FVC Japan" means FlashVision Ltd., a Japanese limited liability
company (yugen kaisha).
"FVC Japan Equipment" means any equipment which is or will, from
time to time, be owned or leased by FVC Japan.
"FVC Japan Master Agreement" means the Master Agreement between
Toshiba and SanDisk dated as of April 10, 2002, as amended and restated as of
the Effective Date.
"FVC Japan Operative Documents" means the FVC Japan Master Agreement
as amended to date, the New Operating Agreement between the Parties, dated as of
April 10, 2002, as amended to date, the Foundry Agreement between FVC Japan and
Toshiba, dated as of April 10, 2002, the SanDisk Foundry Agreement between the
Parties, dated as of April 10, 2002, the Purchase and Supply Agreement between
FVC Japan and SanDisk, dated as of April 10, 2002, the Purchase and Supply
Agreement between FVC Japan and Toshiba, dated as of April 10, 2002, and the
Services Agreement between FVC Japan and Toshiba dated as of April 1, 2002.
"FVC Japan NAND Flash Memory Products" has the meaning given in
Section 3.3 of the Master Agreement.
"Governmental Action" means any authorization, consent, approval,
order, waiver, exception, variance, franchise, permission, permit or license of,
or any registration, filing or declaration with, by or in respect of, any
Governmental Authority.
"Governmental Authority" means any United States or Japanese
federal, state, local or other political subdivision or foreign governmental
Person, authority, agency, court, regulatory commission or other governmental
body, including the Internal Revenue Service and the Secretary of State of any
State.
"Governmental Rule" means any statute, law, treaty, rule, code,
ordinance, regulation, license, permit, certificate or order of any Governmental
Authority or any judgment, decree, injunction, writ, order or like action of any
court or other judicial or arbitration tribunal.
"Indebtedness" of any Person means, without duplication:
(a) all obligations (whether present or future, contingent or
otherwise, as principal or surety or otherwise) of such Person in respect
of borrowed money or in respect of deposits or advances of any kind;
(b) all obligations of such Person evidenced by bonds, debentures,
notes or similar instruments;
4
(c) all obligations of such Person upon which interest charges are
customarily paid, except for trade payables;
(d) all obligations of such Person under conditional sale or other
title retention agreements relating to property or assets purchased by
such Person;
(e) all obligations of such Person issued or assumed as the deferred
purchase price of property or services (other than with respect to the
purchase of personal property under standard commercial terms);
(f) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed;
(g) all guarantees by such Person of Indebtedness of others;
(h) all obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real
or personal property (or a combination thereof), which obligations would
be required to be classified and accounted for as capital leases on a
balance sheet of such Person prepared in accordance with Japanese GAAP or
US GAAP, as applicable;
(i) all obligations of such Person (whether absolute or contingent)
in respect of interest rate swap or protection agreements, foreign
currency exchange agreements or other interest or exchange rate hedging
arrangements; and
(j) all obligations of such Person as an account party in respect of
letters of credit and bankers' acceptances.
The Indebtedness of any Person shall include the Indebtedness of any
partnership in which such Person is a general partner.
"Indemnified Parties" means the Party being indemnified's officers,
directors, employees, agents, contractors, subcontractors, and transferees
permitted pursuant to the FP Operating Agreement and the Master Agreement.
"Japan Act" means the Japanese Limited Liability Company Act
(yugenkaisha-ho), as in effect from time to time.
"Japanese GAAP" means generally accepted accounting principles in
Japan as in effect from time to time, consistently applied.
"Japanese GAAS" means generally accepted auditing standards in Japan
as in effect from time to time.
"License Agreement" means the Patent Cross License Agreement dated
July 30, 1997 by and between Toshiba and SanDisk, [***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
5
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset and
(c) in the case of securities, any purchase option, call or similar right with
respect to such securities.
"L/M" means lots per month.
"Management Committee" has the meaning given in the Master
Agreement.
"Master Agreement" means the Flash Partners Master Agreement, dated
as of the Effective Date, by and among Toshiba, SanDisk and SanDisk
International.
"Material" means, with respect to any Person, an event, change or
effect which is or, insofar as reasonably can be foreseen, will be material to
the condition (financial or otherwise), properties, assets, liabilities,
capitalization, licenses, businesses, operations or prospects of such Person
and, in the case of Flash Partners, the ability of Flash Partners to carry out
its then-current Business Plan.
"NAND Flash Memory Products" has the meaning given in Section 3.2 of
the Master Agreement.
"Net Book Value" means, with respect to any Person, the total assets
of such Person less the total liabilities of such Person, in each case as
determined in accordance with Japanese GAAP or US GAAP, as applicable.
"Patent Indemnification Agreement" means the Patent Indemnification
Agreement dated as of the Effective Date between Toshiba and SanDisk
Corporation.
"Percentage" means, with respect to any Unitholder (as defined in
the FP Operating Agreement), the percentage of such Unitholders' ownership
interest in Flash Partners. For the avoidance of doubt, as of the date hereof,
Percentage means with respect to Toshiba or its Affiliate, 50.1%, and with
respect to SanDisk International or its Affiliate, 49.9%; provided, however, if
either Unitholder transfers all of its Units to any Affiliate in accordance with
the FP Operating Agreement, its Percentage shall be 0% and such Affiliate
transferee shall receive the entire Percentage of the transferring Unitholder.
"Permitted Liens" means (a) the rights and interests of Flash
Partners, either Party or any Affiliate of any such Person as provided in the FP
Operative Documents, and (b) Liens for Taxes which are not due and payable or
which may after contest be paid without penalty or which are being contested in
good faith and by appropriate proceedings and so long as such proceedings shall
not involve any substantial risk of the sale, forfeiture or loss of any part of
any relevant asset or title thereto or any interest therein.
6
"Person" means any individual, firm, company, corporation, limited
liability company, unincorporated association, partnership, trust, joint
venture, Governmental Authority or other entity, and shall include any successor
(by merger or otherwise) of such entity.
"Product Development Agreement" means the Amended and Restated
Product Development Agreement, dated as of the Effective Date, between Toshiba
and SanDisk Corporation.
"SanDisk Corporation" means SanDisk Corporation, a Delaware
corporation.
"SanDisk International" means SanDisk International Limited, a
company organized under the laws of the Cayman Islands.
"SanDisk Purchase and Supply Agreement" means the Purchase and
Supply Agreement, dated as of the Effective Date, between SanDisk International
and Flash Partners.
"Subsidiary" of any Person means any other Person:
(i) more than 50% of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are, or
(ii) which does not have outstanding shares or securities (as may be
the case in a partnership, joint venture or unincorporated association),
but more than 50% of whose ownership interest representing the right to
make decisions (equivalent to those generally reserved for the board of
directors of a corporation) for such other Person is,
now or hereafter owned or controlled, directly or indirectly, by such Person,
but such other Person shall be deemed to be a Subsidiary only so long as such
ownership or control exists; provided, however, that the term Subsidiary as used
in any FP Operative Document, when used in relation to a Party or any of its
Affiliates, shall not include Flash Partners or any of its Subsidiaries.
"Tax" or "Taxes" means all United States or Japanese Federal, state,
local or other political subdivision and foreign taxes, assessments and other
governmental charges, including: (a) taxes based upon or measured by gross
receipts, income, profits, sales, use or occupation and (b) value added, ad
valorem, transfer, franchise, withholding, payroll, employment, excise or
property taxes, together with (c) all interest, penalties and additions imposed
with respect to such amounts and (d) any obligations under any agreements or
arrangements with any other Person with respect to such amounts.
"Toshiba" means Toshiba Corporation, a Japanese corporation.
"Toshiba Foundry Facility" means the Yokkaichi Facility, excluding
the Y3 Facility and the FVC Japan Equipment but including Toshiba's Asahi
facility and Toshiba's Oita facility.
"Toshiba Foundry NAND Flash Memory Products" means NAND Flash Memory
Products manufactured at a Toshiba Foundry Facility.
7
"Toshiba-SanDisk Services Agreement" mean Amendment No. 1 to
Services Agreement, dated as of the Effective Date, between SanDisk Corporation
and Toshiba.
"Toshiba Purchase and Supply Agreement" means the Purchase and
Supply Agreement, dated as of the Effective Date, between Toshiba and Flash
Partners.
"Transfer" means any transfer, sale, assignment, conveyance,
creation of any Lien (other than a Permitted Lien), or other disposal or
delivery, including by dividend or distribution, whether made directly or
indirectly, voluntarily or involuntarily, absolutely or conditionally, or by
operation of law or otherwise.
"Unique Activities" means production activities of Flash Partners at
the request of either Unitholder to (i) implement changes in the manufacturing
processes to be employed for Products to be manufactured for such Unitholder (or
its Affiliates) that are not agreed to by the other Unitholder, (ii) commence
manufacturing other Products for the requesting Unitholder (or its Affiliates)
that the other Unitholder does not desire to have manufactured for it and which
require a change in manufacturing processes or in the utilization of the
Facility or production resources, or (iii) implement any other change in its
operations in order to manufacture Products specifically for the requesting
Unitholder (or its Affiliates).
"Unitholder" means the holder of any Units.
"Units" means the units of contribution (shussi mochibun) in Flash
Partners, the par value of one Unit (shussi-hitokuchi-no-kingaku) being JPY
5,000.
"US GAAP" means generally accepted accounting principles in the
United States as in effect from time to time, consistently applied.
"US GAAS" means generally accepted auditing standards in the United
States as in effect from time to time.
"Y3 Facility" has the meaning given in the Master Agreement.
"Y3 NAND Flash Memory Products" has the meaning given in Section 3.3
of the Master Agreement.
"Yokkaichi Facility" means Toshiba's facilities in Yokkaichi Japan,
including the FVC Japan Equipment, the Y3 Facility and Toshiba's Asahi facility.
Rules of Construction and Documentary Conventions
2.1 Amendment and Waiver. No amendment to or waiver of this Agreement shall be
effective unless it shall be in writing, identify with specificity the
provisions of this Agreement that are thereby amended or waived and be signed by
each party hereto. Any failure of a party to comply with any obligation,
covenant, agreement or condition contained in this Agreement may be waived by
the party entitled to the benefits thereof only by a written instrument duly
executed
8
and delivered by the party granting such waiver, but such waiver or failure to
insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
subsequent or other failure of compliance.
2.2 Severability. If any provision of this Agreement or the application of any
such provision is invalid, illegal or unenforceable in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement (except as may be expressly provided in this Agreement) or
invalidate or render unenforceable such provision in any other jurisdiction. To
the extent permitted by applicable law, the parties hereto waive any provision
of law that renders any provision of this Agreement invalid, illegal or
unenforceable in any respect. The parties hereto shall, to the extent lawful and
practicable, use their reasonable efforts to enter into arrangements to
reinstate the intended benefits, net of the intended burdens, of any such
provision held invalid, illegal or unenforceable. If the intent of the Parties
for entering into the FP Operative Documents, considered as a single
transaction, cannot be preserved, the FP Operative Documents shall either be
renegotiated or terminated by mutual agreement of the Parties.
2.3 Assignment. Except as may otherwise be specifically provided in this
Agreement, no party hereto shall Transfer this Agreement or any of its rights
hereunder (except for any Transfer to an Affiliate or in connection with a
merger, consolidation or sale of all or substantially all the assets or the
outstanding securities of such party, which Transfer shall not require any
consent of the other parties) without the prior written consent of each other
party hereto (which consent may be withheld in each such other party's sole
discretion), and any such purported Transfer without such consent shall be void.
2.4 Remedies.
(a) Except as may otherwise be specifically provided in this Agreement, the
rights and remedies of the parties under this Agreement are cumulative and are
not exclusive of any rights or remedies which the parties hereto would otherwise
have.
(b) Equitable relief, including the remedies of specific performance and
injunction, shall be available with respect to any actual or attempted breach of
this Agreement; provided, however, in the absence of exigent circumstances, the
parties shall refrain from commencing any lawsuit or seeking judicial relief in
connection with such actual or attempted breach that is contemplated to be
addressed by the dispute resolution process set forth in the Master Agreement
and in Section 2.5 of this Appendix A until the parties have attempted to
resolve the subject dispute by following said dispute resolution process to its
conclusion.
(c) If the due date for any amount required to be paid under this Agreement is
not a Business Day, such amount shall be payable on the next succeeding Business
Day; provided that if payment cannot be made due to the existence of a banking
crisis or international payment embargo, such amount may be paid within the
following 30 days. If due to the occurrence of an act of God, any party is
prevented from providing training, technical assistance or other similar support
required to be provided to Flash Partners pursuant to this Agreement, such party
shall have an additional 30 day period to make alternative arrangements to
provide such support.
9
2.5 Arbitration. Any dispute concerning this Agreement shall be referred to the
Management Committee and handled by it in accordance with the 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.
2.6 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 SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGE OF ANY KIND, (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT OR DATA),
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS.
2.7 Parties in Interest; Limitation on Rights of Others. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their permitted
successors and assigns. Nothing in this Agreement, whether express or implied,
shall give or be construed to give any Person (other than the parties hereto and
their permitted successors and assigns) any legal or equitable right, remedy or
claim under or in respect of this Agreement, unless such Person is expressly
stated in such agreement or instrument to be entitled to any such right, remedy
or claim.
2.8 Table of Contents; Headings. The Table of Contents and Article and Section
headings of this Agreement are for convenience of reference only and shall not
affect the construction of or be taken into consideration in interpreting any
such agreement or instrument.
2.9 Counterparts; Effectiveness. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all of which counterparts shall together constitute
but one and the same contract. This Agreement shall not become effective until
one or more counterparts have been executed by each party hereto and delivered
to the other parties hereto.
2.10 Entire Agreement. This Agreement, together with each other FP Operative
Documents and the Exhibits, Schedules, Appendices and Attachments hereto and
thereto, when completed, constitute the agreement of the parties to the FP
Operative Documents with respect to the subject matter thereof and supersede all
prior written and oral agreements and understandings with respect to such
subject matter.
2.11 Construction. References in this Agreement to any gender include references
to all genders, and references in this Agreement to the singular include
references to the plural and vice versa. Unless the context otherwise requires,
the term "party" when used in this Agreement means a party to this Agreement.
References in this Agreement to a party or other Person include their respective
permitted successors and assigns. The words "include", "includes" and
"including", when used in this Agreement, shall be deemed to be followed by the
phrase "without limitation". Unless the context otherwise requires, references
used in this Agreement to Articles, Sections, Exhibits, Schedules, Appendices
and Attachments shall be deemed references
10
to Articles and Sections of, and Exhibits, Schedules, Appendices and Attachments
to, this Agreement. Unless the context otherwise requires, the words "hereof",
"hereby" and "herein" and words of similar meaning when used in this Agreement
refer to this Agreement in its entirety and not to any particular Article,
Section or provision of this Agreement. Any reference to a FP Operative Document
shall include such FP Operative Document as amended or supplemented from time to
time in accordance with the provisions thereof.
2.12 Official Language. The official language of this Agreement is the English
language only, which language shall be controlling in all respects, and all
versions of this Agreement in any other language shall not be binding on the
parties hereto or nor shall such other versions be admissible in any legal
proceeding, including arbitration, brought under this Agreement. All
communications and notices to be made or given pursuant to this Agreement shall
be in the English language.
2.13 Notices. All notices and other communications to be given to any party
under this Agreement shall be in writing and any notice shall be deemed received
when delivered by hand, courier or overnight delivery service, or by facsimile
(if confirmed within two Business Days by delivery of a copy by hand, courier or
overnight delivery service), or five days after being mailed by certified or
registered mail, return receipt requested, with appropriate postage prepaid and
shall be directed to the address of such party specified below (or at such other
address as such party shall designate by like notice):
(a) If to SanDisk or SanDisk International:
SanDisk Corporation
140 Caspian Court
Sunnyvale, CA 94089
Telephone: (408) 542-0555
Facsimile: (408) 542-0600
Attention: President and CEO
With a copy to:
SanDisk Corporation
140 Caspian Court
Sunnyvale, CA 94089
Telephone: (408) 548-0208
Facsimile: (408) 548-0385
Attention: Vice President and General Counsel
11
(b) If to Toshiba:
Toshiba Corporation
Semiconductor Company
1-1 Shibaura 1-Chome
Minato-Ku, Tokyo 105-8001 Japan
Telephone: 011 81 3 3457 3362
Facsimile: 011 81 3 5444 9339
Attention: Vice President
With a copy to:
Toshiba Corporation
Semiconductor Company
Legal Affairs and Contracts Division
1-1 Shibaura 1-Chome
Minato-Ku, Tokyo 105-8001 Japan
Telephone: 011-81-3-3457-3452
Facsimile: 011-81-3-5444-9342
Attention: General Manager
(c) If to Flash Partners:
Flash Partners, Ltd.
800 Yamanoisshikicho,
Yokkaichi, Mie, Japan
Attention: President
12
With a copy to:
SanDisk Corporation
140 Caspian Court
Sunnyvale, CA 94089
Telephone: (408) 542-0510
Facsimile: (408) 542-0640
Attention: Chief Operating Officer
And
Toshiba Corporation
Semiconductor Company
Legal Affairs and Contracts Division
1-1 Shibaura 1-Chome
Minato-Ku, Tokyo 105-8001 Japan
Telephone: 011-81-3-3457-3452
Facsimile: 011-81-3-5444-9342
Attention: General Manager
2.14 Non Disclosure Obligations. Each party hereto agrees as follows:
(a) In this Agreement, "Confidential Information" means information disclosed in
written, recorded, graphical or other tangible from which is marked as
"Confidential", "Proprietary" or in some other manner to indicate its
confidential nature, and/or orally or in other intangible form, identified as
confidential at the time of disclosure and confirmed as confidential information
in writing within thirty (30) days of its initial disclosure.
(b) For a period of [***] from the date of receipt of the Confidential
Information disclosed by one Party (the "Disclosing Party") hereunder, the
receiving Party (the "Receiving Party") agrees to safeguard the Confidential
Information and to keep it in confidence and to use reasonable efforts,
consistent with those used in the protection of its own confidential
information, to prevent its disclosure to third parties, except that the
Receiving Party shall not be obligated hereunder in any respect to information
which:
(i) is already known to the Receiving Party at the time of its receipt
from the Disclosing Party as reasonably evidenced by its written
records; or
(ii) is or becomes publicly available without breach of this Agreement by
the Receiving Party; or
(iii) is made available to a third party by the Disclosing Party without
restriction on disclosure; or
(iv) is rightfully received by the Receiving Party from a third party
without restriction and without breach of this Agreement; or
[***]INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
13
(v) is independently developed by the Receiving Party as reasonably
evidenced by its written records contemporaneous with such
development; or
(vi) is disclosed with the prior written consent of the Disclosing Party,
provided that each recipient from the Receiving Party shall execute
a confidentiality agreement prohibiting further disclosure of the
Confidential Information, under terms no less restrictive that those
provided in this Agreement; or
(vii) is required to be disclosed by the order of a governmental agency or
legislative body of a court of competent jurisdiction, provided that
the Receiving Party shall give the Disclosing Party prompt notice of
such request so that the Disclosing Party has an opportunity to
defend, limit or protect such disclosure; or
(viii) is required to be disclosed by applicable securities of other laws
or regulations, provided that SanDisk shall, prior to any such
disclosure required by the U.S. Securities and Exchange Commission,
provide Toshiba with notice which includes a copy of the proposed
disclosure. Further, SanDisk shall consider Toshiba's timely input
with respect to the disclosure.
(c) Receiving Party shall use its reasonable best efforts to limit dissemination
of the Disclosing Party's Confidential Information to such of its employees who
have a need to know such information for the purpose for which such information
was disclosed to it. Receiving Party understands that disclosure or
dissemination of the Disclosing Party's Confidential Information not expressly
authorized hereunder would cause irreparable injury to the Receiving Party, for
which monetary damages would not be an adequate remedy and the Disclosing Party
shall be entitled to equitable relief in addition to any remedies the Disclosing
Party may have hereunder or at law.
(d) Nothing contained in this Agreement shall be construed as granting or
conferring any rights, licenses or relationships by the transmission of the
Confidential Information.
(e) All Confidential Information disclosed hereunder shall remain the property
of the Disclosing Party. Upon request by the Disclosing Party, the Receiving
Party shall return all Confidential Information, including any and all copies
thereof, or certify in writing that all such Confidential Information had been
destroyed.
2.15 Definitions. The definitions set forth in Article I of this Appendix A
shall apply to this Article II.
14