Exhibit 10.30
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NEW MASTER AGREEMENT
Dated as of April 10, 2002
by and between
TOSHIBA CORPORATION
and
SANDISK CORPORATION
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New Master Agreement
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
ARTICLE I DEFINITIONS, RULES OF CONSTRUCTION AND DOCUMENTARY CONVENTIONS ........... 1
SECTION 1.01 Certain Definitions ............................................... 1
SECTION 1.02 Additional Definitions ............................................ 2
SECTION 1.03 Rules of Construction and Documentary Conventions ................. 3
SECTION 1.04 Additional Rules of Construction .................................. 3
ARTICLE II PURPOSE OF FVC-JAPAN ..................................................... 4
SECTION 2.01 Purpose ........................................................... 4
SECTION 2.02 New Operating Agreement ........................................... 4
ARTICLE III CLOSING; DISSOLUTION OF FVC .............................................. 4
SECTION 3.01 Closing ........................................................... 4
SECTION 3.02 Termination of Master Agreement ................................... 4
SECTION 3.03 Post Closing Matters ............................................. 5
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PARTIES ............................ 6
SECTION 4.01 Organization, Ownership Interest, etc ............................. 6
SECTION 4.02 Authorization; No Conflict ........................................ 7
SECTION 4.03 Enforceability .................................................... 8
SECTION 4.04 Proceedings ....................................................... 8
SECTION 4.05 Litigation; Decrees ............................................... 8
SECTION 4.06 Compliance with Other Instruments ................................. 9
SECTION 4.07 Patents and Proprietary Rights .................................... 9
SECTION 4.08 Compliance with Laws .............................................. 9
SECTION 4.09 Patent Cross Licenses ............................................. 9
SECTION 4.10 Representations with Respect to FVC-Japan ......................... 9
ARTICLE V COVENANTS ................................................................ 10
SECTION 5.01 Covenants of the Parties .......................................... 10
SECTION 5.02 Further Assurances ................................................ 11
SECTION 5.03 Public Announcements .............................................. 11
SECTION 5.04 Expenses .......................................................... 12
SECTION 5.05 Undertaking as to Affiliate Obligations ........................... 12
New Master Agreement
TABLE OF CONTENTS
(continued)
Page
SECTION 5.06 Continuity and Maintenance of Operations ................. 12
SECTION 5.07 Certain Deliveries and Notices ........................... 12
ARTICLE VI COVENANTS CONCERNING NAND FLASH MEMORY
PRODUCT BUSINESS ................................................... 13
SECTION 6.01 Technology Transfers ..................................... 13
SECTION 6.02 Start-up Services at the Yokkaichi Facility .............. 13
SECTION 6.03 Expanded Capacity ........................................ 14
SECTION 6.04 Capacity Sharing Arrangement ............................. 16
SECTION 6.05 Creation of Management Committee ......................... 18
SECTION 6.06 Personnel ................................................ 21
SECTION 6.07 Non-solicitation of Employees ............................ 22
SECTION 6.08 External Financing; Additional Equipment ................. 23
SECTION 6.09 Other Activities ......................................... 23
SECTION 6.10 Protection of Intellectual Property ...................... 24
SECTION 6.11 Purchase of Replacement Tools ............................ 24
SECTION 6.12 Installation of FVC-Japan Equipment ...................... 25
ARTICLE VII OTHER AGREEMENTS ................................................. 25
SECTION 7.01 FVC-Japan Foundry Agreement .............................. 25
SECTION 7.02 SanDisk Foundry Agreement ................................ 27
SECTION 7.03 Purchase and Supply Agreement ............................ 28
SECTION 7.04 Common R&D Agreement ..................................... 29
SECTION 7.05 Product Development Agreement ............................ 29
SECTION 7.06 Other Matters ............................................ 29
SECTION 7.07 Yokkaichi Service Agreement .............................. 30
SECTION 7.08 Patent Cross License ..................................... 30
ARTICLE VIII TERMINATION ...................................................... 30
SECTION 8.01 Termination .............................................. 30
ARTICLE IX MISCELLANEOUS .................................................... 35
SECTION 9.01 No Partnership ........................................... 35
SECTION 9.02 Governing Law ............................................ 35
SECTION 9.03 Dispute Resolution ....................................... 35
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TABLE OF CONTENTS
(continued)
Page
SECTION 9.04 Damages Limited .................................................... 36
EXHIBITS
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Exhibit A - New Operating Agreement
Exhibit B - Certificate of Cancellation
Exhibit C - Articles of Incorporation of FVC-Japan
Exhibit D - Balance Sheet of FVC-Japan
Exhibit E - Indemnification Agreement
Exhibit F - SanDisk Foundry Agreement
Exhibit G - Amendment to Common R&D Agreement
Exhibit H - Amendment to Product Development Agreement
Exhibit I - License Amendment
SCHEDULES
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Schedule 2.01 - Definition Regarding Embedded NAND Flash
Schedule 4.05 - Litigation; Decrees
Schedule 4.07 - Patents and Proprietary Rights
Schedule 6.01 - New Facility Transfer Costs
Schedule 6.02(b) - Costs and Expenses Related to Disposal of FVC Assets
Schedule 6.03 - Priority for Expansion of Manufacturing Capacity of
NAND Flash Memory Products
Schedule 7.02(b) - Allocation of Yokkaichi (not including the FVC-Japan Equipment)
NAND Flash Memory Products
Schedule 8.01(d) - Royalty in case of SanDisk Unilateral Termination
Schedule 8.01(e) - Royalty in case of Deadlock Termination
Schedule 8.01(f) - Royalty in case of Event of Default Termination
Master Agreement
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This NEW MASTER AGREEMENT, dated as of April 10, 2002, is
entered into by and between TOSHIBA CORPORATION, a Japanese corporation
("Toshiba") and SANDISK CORPORATION, a Delaware corporation ("SanDisk", and
together with Toshiba, the "Parties").
WHEREAS, the Parties desire to jointly develop, manufacture
and market NAND Flash Memory Products (as hereinafter defined) and NAND related
products;
WHEREAS, in connection with the manufacturing of NAND Flash
Memory Products, the Parties have formed FlashVision, L.L.C., a Virginia limited
liability company ("FVC"), and the Parties collectively own all of the
outstanding equity interest of FVC;
WHEREAS, Toshiba currently owns and operates a manufacturing
facility located in Yokkaichi-shi, Japan (the "Yokkaichi Facility"). For
purposes of this Agreement, "Yokkaichi" means Toshiba in its capacity as the
owner and operator of the Yokkaichi Facility;
WHEREAS, Toshiba currently owns all of the outstanding equity
interest in FlashVision, Ltd., a limited liability company (yugenkaisha)
organized under the laws of Japan ("FVC-Japan");
WHEREAS, the Parties now desire to discontinue FVC's business
in Manassas, Virginia and move the operations formerly conducted by FVC to
Japan, where such operations will be conducted by FVC-Japan;
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;
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I
DEFINITIONS, RULES OF CONSTRUCTION
AND DOCUMENTARY CONVENTIONS
SECTION 1.01 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 Documentary Conventions, attached to this Agreement
and made a part hereof.
New Master Agreement
(b) As used herein, the term "Agreement" means this New Master
Agreement together with any Exhibits, Schedules, Appendices and Attachments
hereto.
SECTION 1.02 Additional Definitions. The following capitalized
terms used in this Agreement shall have the respective meanings assigned in this
Agreement:
Term Defined In
---- ----------
..13u/MLC Tools Section 6.11
Acquiring Party Section 8.01(c)
Additional Capacity Tools Section 6.11
Amendment to Common R&D Agreement Section 7.04
Amendment to Product Development Agreement Section 7.05
Appointing Party Section 6.05(b)
Bridge Loan Section 3.03(c)(ii)
Committee Representatives Section 6.05(b)
Common R&D Agreement Section 7.04
Designated Individuals Section 9.03(a)
FVC Recitals
FVC Capital Section 3.03(b)(iv)
FVC Owned Equipment Section 3.03(b)(v)
FVC-Japan Recitals
FVC-Japan Foundry Agreement Section 7.01
FVC-Japan Sales Price Section 7.03(b)
ICs Section 2.01
Indemnification Agreement Section 6.08(a)
Intellectual Property Section 4.07
Leased Equipment Section 3.03(b)(i)
License Agreement Section 7.08
License Amendment Section 7.08
Logistics Service Agreement Section 6.02(b)(iii)
Management Committee Section 6.05
NAND Flash Memory Integrated Circuits Section 6.09
NAND Flash Memory Products Section 2.01
NAND Process Technology Section 6.01(a)
New Facility Section 6.01(a)
New Operating Agreement Section 2.02
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Term Defined In
---- ----------
Non-Originating Party Section 6.04(c)
Originating Party Section 6.04(c)
Product Development Agreement Section 7.05
Proprietary NAND Flash Memory Products Section 6.04(b)
Purchase and Supply Agreement Section 7.03
Replacement Tools Section 6.11
Requesting Party Section 8.01(c)(I)
SanDisk Foundry Agreement Section 7.02
SanDisk Termination Capacity Section 8.01(d)(i)
Selling Party Section 8.01(c)
Service Fee Section 6.02(b)(iii)
Start-Up Costs Section 6.02(a)
Start-Up Period Section 6.02(a)
Start-Up Services Section 6.02(a)
Tax Returns Section 4.10(f)
Termination Capacity Section 8.01(c)(i)
Termination Date Section 8.01(a)
Transferred Equipment Section 6.02(a)
Units Section 3.03(a)
Yokkaichi Recitals
Yokkaichi Facility Recitals
Yokkaichi Manufacturing Costs Section 7.01(d)
Yokkaichi Sales Price Section 7.01(d)
Yokkaichi Service Agreement Section 7.07
Yokkaichi Target Capacity Section 7.01(b)
SECTION 1.03 Rules of Construction and Documentary
Conventions. The rules of construction and documentary conventions set forth in
Appendix A shall apply to this Agreement.
SECTION 1.04 Additional Rules of Construction. 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.
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ARTICLE II
PURPOSE OF FVC-JAPAN
SECTION 2.01 Purpose. FVC-Japan will, through a series of relationships and
agreements, be engaged in the manufacture, by one or more subcontract
arrangements, and sale of NAND (both binary and MLC Flash Memory) Flash Memory
Integrated Circuits (as hereinafter defined), excluding any products with
process design rules generally greater than 0.25 microns (collectively, "NAND
Flash Memory Products"), for the Parties (whether directly or indirectly through
their respective Affiliates). Except as specifically provided for in Articles VI
and VII, all NAND Flash Memory Products of the Parties and their respective
Affiliates will be acquired through FVC-Japan. Embedded Integrated Circuits
("ICs") incorporating NAND Flash Memory Products as well as logic circuitry (i)
will be included in the definition of NAND Flash Memory Products if the main
function and value of such IC is Flash Memory and (ii) will not be included in
the definition of NAND Flash Memory Products if the main function and value of
such IC is logic. Schedule 2.01 sets forth the formula that the Parties shall
use to determine the main function and value of ICs. The Parties each are
permitted to market and sell NAND Flash Memory Products manufactured by and for
Toshiba and/or SanDisk, as provided for in this Agreement, to any third party in
any form, including but not limited to chips, packaged devices and cards.
SECTION 2.02 New Operating Agreement. In accordance with the Japan Act, as
of the date hereof, the Parties will enter into that certain New Operating
Agreement (the "New Operating Agreement"), in the form attached hereto as
Exhibit A, which sets forth (i) the business of FVC-Japan, (ii) the conduct of
FVC-Japan's affairs and (iii) the rights, powers, preferences, limitations and
responsibilities of the Parties as owners of Units in FVC-Japan.
ARTICLE III
CLOSING; DISSOLUTION OF FVC
SECTION 3.01 Closing. The Closing shall occur upon the execution of this
Agreement and of each other Operative Document (except for any Operative
Document to be executed following the Closing under the terms of this
Agreement).
SECTION 3.02 Termination of Master Agreement. Effective immediately upon
Closing, that certain Master Agreement, dated as of May 9, 2000, by and among
Toshiba, SENA and SanDisk, shall be terminated and be of no further force or
effect. Pursuant to a letter agreement dated as of the date hereof, SENA has
consented to such termination.
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SECTION 3.03 Post Closing Matters.
(a) Sale of FVC-Japan Equity Interest. As soon as practicable
following the Closing, Toshiba agrees to sell to FVC all of the units of
contribution (shussi mochibun) in FVC-Japan, the par value of one unit
(shussi-hitokuchi-no-kingaku) being JPY 5,000 (the "Units"), for the amount of
[***].
(b) Transfer of FVC Equipment; Capital Increase in FVC-Japan. The
Parties agree to take the following actions, in the order listed, as soon as
practicable following the sale of the Units to FVC:
(i) cause FVC to sell to FVC-Japan the equipment which was
formerly leased from ABN AMRO (the "Leased Equipment"), for an amount equal
to the Net Book Value thereof; then
(ii) cause FVC to sell to either DSC or Toshiba certain
building, clean room and other assets to be agreed by the Parties in the
amount equal to the Net Book Value thereof as of March 31, 2002; then
(iii) cause FVC to sell to either DSC or Toshiba certain other
tools to be agreed by the Parties in the amount equal to the Net Book Value
thereof; then
(iv) cause FVC-Japan to authorize the increase of the capital
in FVC-Japan by 1,000 Units, and cause FVC to subscribe to purchase all of
such increase by means of a cash payment, by wire transfer of immediately
available Japanese Yen, in an amount equal to fifty percent (50%) of the
result of (A) the amount of paid in capital of FVC ($300,000,000) minus (B)
the amount paid by FVC to Toshiba to acquire all of the outstanding Units
pursuant to Section 3.03(a) above ([***]) (the amount resulting from
subtracting subsection (B) from subsection (A) hereinafter referred to as
the "FVC Capital"); then
(v) cause FVC to sell to FVC-Japan the remainder of its owned
equipment formerly used by DSC in the manufacture of NAND Flash Memory
Products in Manassas, Virginia (the "FVC Owned Equipment") in an amount
equal to the Net Book Value thereof as of April 30, 2002; then
(vi) cause FVC-Japan to authorize the increase of the capital
in FVC-Japan by 1,000 Units, and cause FVC to subscribe to purchase all of
such increase by means of a cash payment, by wire transfer of immediately
available Japanese Yen, in an amount equal to fifty percent (50%) of the
FVC Capital; then
(vii) cause FVC to be dissolved and liquidated by filing or
causing to be filed, in accordance with the Virginia Act, the Certificate
of Cancellation attached hereto as Exhibit B; then
New Master Agreement
[***] 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
(viii) cause the Units held by FVC to be distributed to the
Parties on a pro rata basis based upon their respective Percentages as of
the date of such distribution.
(c) Arrangement of Financing for FVC-Japan.
(i) The Parties agree that, following the Closing, they shall
use their commercially reasonable efforts (and shall cooperate with the
other Party and negotiate in good faith) to cause FVC-Japan to enter into
financing arrangements with Mizuho Corporate Bank, Ltd., or any other
financial institutions organized under the laws of Japan, as soon as
practicable following the Closing with respect to the Leased Equipment.
Nothing in this Section 3.03(c) shall be deemed to amend or otherwise
affect the obligations of Toshiba under that certain letter agreement,
dated March 20, 2002, between the Parties.
(ii) In the event that the outstanding principal amount of the
loan evidenced by that certain Loan Agreement, dated the date hereof,
between Toshiba and FVC-Japan (the "Bridge Loan"), along with any interest
accrued thereon, shall have not been repaid on or prior to the date on
which any of such amounts have become due and payable, [***].
(d) Asset Sale Adjustment. As soon as practicable, but in no event
later than the liquidation of FVC, Toshiba shall pay to FVC an amount equal
to the Net Book Value of the assets remaining in the fixed asset account of
FVC following the sale or other disposition of installation components,
building, clean room assets, the FVC Owned Equipment, tools, and any other
assets.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Except as may be disclosed in disclosure schedules attached to this
Agreement, and unless indicated differently in the provisions of this Article
IV, each Party represents and warrants to the other Party, as of the date
hereof, as follows:
SECTION 4.01 Organization, Ownership Interest, etc.
(a) It is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization or incorporation and has the
power and authority to carry on its business as conducted on the date hereof, to
own or hold under lease its properties and to enter into and perform its
obligations under each Operative Document to which it is specified to be a
party.
New Master Agreement
[***] 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.
6
(b) It is duly qualified to own or lease its properties and
generally to conduct its business as currently, or proposed under the Operative
Documents to be, conducted in each jurisdiction necessary for purposes of the
transactions contemplated by the Operative Documents, except where failure to so
qualify would not have a material adverse effect on either Party or FVC-Japan.
SECTION 4.02 Authorization; No Conflict.
(a) It has duly authorized, by all necessary action, the execution,
delivery and performance of each Operative Document to which it or FVC-Japan is
specified to be a party. All corporate and other legal proceedings taken by each
Party, FVC and FVC-Japan in connection with the transactions contemplated by the
Operative Documents and all documents relating to the transactions contemplated
thereby are reasonably satisfactory in form and substance to each Party and its
counsel, and certified or other copies of all relevant documents as either Party
reasonably requested have been provided to such Party or its counsel.
(b) Its execution and delivery of each such Operative Document, its
consummation of the transactions contemplated thereby and its compliance
therewith, does not and will not (i) require any approval of its stockholders or
any approval or consent of any trustee or holder of any of its Indebtedness or
obligations, (ii) contravene any Governmental Rule applicable to or binding on
it or any of its properties if such contravention would have a material adverse
effect on it or on its ability to perform any of its obligations under any
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 property or the property of FVC or FVC-Japan
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 is a party or by which it or any of its
properties is or is intended to be bound or by which FVC or FVC-Japan or any of
their respective properties is or is intended to be bound, (iv) require any
negotiation with, or notice to, any labor union or violate, or require any
procedure to be followed under, any collective bargaining or other agreement
with employees or (v) require any Governmental Action (other than immaterial
Governmental Actions such as routine qualifications to do business intended to
be obtained as needed or Governmental Actions needed in connection with the
construction and operation of the FVC-Japan Equipment), 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 FVC-Japan Equipment) or other third Person necessary or
advisable for
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such Party to consummate in all material respects the transactions contemplated
by the Operative Documents have been obtained. No Burdensome Condition exists
with respect to such Party, FVC or FVC-Japan in connection with the transactions
contemplated by the Operative Documents. The pre-transaction waiting period
required by the Japanese Foreign Exchange and Foreign Trade Law, the HSR Act or
any other comparable statute, if applicable, and related regulations relating to
the transactions contemplated by the Operative Documents, shall have expired or
been terminated.
SECTION 4.03 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 its Affiliates have duly executed and delivered each
other Operative Document to which it or its Affiliates is or is specified to be
a party and, upon the execution and delivery of each such other Operative
Document by each other party thereto, each such other 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).
SECTION 4.04 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, on the conduct of the business of FVC-Japan
following the Closing as contemplated in the Operative Documents or on such
Party's ability to perform any of its material obligations under any Operative
Document.
SECTION 4.05 Litigation; Decrees. Except as set forth in Schedule
4.05, 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 FVC-Japan following the Closing
as contemplated by the Operative Documents or (ii) relate to any of the
transactions contemplated by the Operative Documents in a manner which is
material to the ability of it to carry out the transactions contemplated hereby
and in the other Operative Documents or which could have a material adverse
effect on the conduct
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of the business of FVC-Japan following the Closing as contemplated in the
Operative Documents.
SECTION 4.06 Compliance with Other Instruments. It is not in
default in any material respect in the performance of any material obligation,
agreement, instrument or undertaking to which it is a party or by which it or
any of its properties is bound, and there is no such obligation, agreement,
instrument or undertaking to which it is a party or by which it or any of its
properties is bound, in each case which is reasonably likely to have a material
adverse effect on the conduct of the business of FVC-Japan following the Closing
as contemplated by the Operative Documents.
SECTION 4.07 Patents and Proprietary Rights. Except as set forth in
Schedule 4.07, to its knowledge, it owns or possesses sufficient legal rights to
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information and proprietary rights and processes (collectively,
"Intellectual Property") necessary (i) to carry out its obligations under the
Operative Documents and (ii) for the conduct of the business of FVC-Japan
following the Closing as contemplated in the 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 4.07, it has not received any communications
alleging that its Intellectual Property violates, or by its entering into the
transactions contemplated by the 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.
SECTION 4.08 Compliance with Laws. It 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 ability to perform its obligations hereunder or under any other Operative
Document or on the conduct of the business of FVC-Japan following the Closing as
contemplated by the Operative Documents.
SECTION 4.09 Patent Cross Licenses. With respect to (a) Toshiba,
except as previously disclosed to SanDisk in writing, there are no patent cross
licenses between it and any third party that would require FVC-Japan to make any
payment pursuant to Section 10 of the License Amendment, and (b) SanDisk, there
are no patent cross licenses between it and any third party that would require
FVC-Japan to make any payment pursuant to Section 8 of the License Amendment.
SECTION 4.10 Representations with Respect to FVC-Japan. Toshiba
represents and warrants to SanDisk with respect to FVC-Japan as follows:
(a) FVC-Japan is a limited liability company (yugenkaisha) duly
organized and validly existing under the laws of Japan.
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(b) All of the outstanding Units in FVC-Japan are owned by
Toshiba. No Units have been issued in violation of the rights of any equity
holder, applicable law or the Articles of Incorporation of FVC-Japan, a copy of
which is attached hereto as Exhibit C. All of the Units are owned by Toshiba
free and clear of all encumbrances, claims, options, warrants, rights or other
agreements granting to any other entity any interest in or rights to acquire any
equity interest in FVC-Japan at any time or upon the happening of any stated
event.
(c) Transfer of the Units contemplated under Section 3.03(a)
hereof shall vest in FVC legal, valid and marketable title to the Units free and
clear of any encumbrances, rights to acquire options and rights of preemption
with respect thereto in Toshiba or any other party.
(d) The balance sheet of FVC-Japan, dated as of the date hereof,
a copy of which is attached as Exhibit D hereto, accurately presents the
financial condition of FVC-Japan as of the date hereof. FVC-Japan has no
material obligation or liability of any nature whatsoever (direct or indirect,
matured or unmatured, absolute, accrued, contingent or otherwise), whether or
not required by Japanese GAAP to be provided or reserved against on a balance
sheet, except for obligations or liabilities provided for or reserved against in
the attached balance sheet.
(e) There is no litigation, proceeding or governmental
investigation pending or, to the best knowledge of Toshiba, threatened against
FVC-Japan. FVC-Japan is not in violation of any decree, order or arbitration
award or law, statute or regulations of any Governmental Authority, other than
such violations that would not have a material adverse effect on FVC-Japan.
(f) All income, consumption, property and other tax returns and
reports (the "Tax Returns") required to be filed by FVC-Japan with respect to
taxable years or periods ending on or prior to the date hereof have been filed
with the appropriate Governmental Authorities in Japan, except such Tax Returns
with respect to which the failure to file would not have a material adverse
effect on FVC-Japan, and no Tax Return is disputed by any tax authority.
FVC-Japan has not received any notice of assessment or proposed assessment by
any tax authority in connection with the Tax Returns, and there are no tax
claims asserted in writing against FVC-Japan or its properties in connection
therewith.
ARTICLE V
COVENANTS
SECTION 5.01 Covenants of the Parties. Each Party agrees that,
during the term of this Agreement:
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(a) Performance of Obligations. It or its Affiliates shall fully
and faithfully carry out all its obligations under each Operative Document to
which it is a party.
(b) Ownership Interest. Except as otherwise expressly permitted
by Article IX, X or XI of the New Operating Agreement and the Indemnification
Agreement and as contemplated by this Agreement, it shall not Transfer or permit
any of its Affiliates to Transfer all or any portion of its Units in FVC-Japan
(or all or any portion of its interest in any Subsidiary through which it
beneficially owns its Units), to any Person without the consent of the other
Party.
SECTION 5.02 Further Assurances. Following the Closing, each
Party shall, and shall cause its Affiliates, FVC and FVC-Japan to, take all
reasonable actions necessary or appropriate to effectuate the transactions
contemplated by each Operative Document, 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 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.
SECTION 5.03 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 FVC or FVC-Japan or that
refers to the other Party or any of its Affiliates in connection
therewith (other than a general reference to affiliation with FVC or
FVC-Japan) that (A) concerns the financial condition or results of
operations of FVC or FVC-Japan 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, FVC or FVC-Japan's performance or reflects negatively on
either Party's commitment to FVC-Japan; 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 Operative Documents pursuant to the
HSR Act and the Japanese Foreign Exchange and Foreign Trade Law and
related regulations, (A) publicly file all or any part of any 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), FVC or FVC-Japan, except as may be required by any
applicable Governmental Rule, in which case such Party shall
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(or shall cause the Person required to make such filing to) cooperate
with the other Party, to the extent reasonable and practicable, in
obtaining any confidential treatment for such filing requested by the
other Party.
(b) Except as required above, the Parties shall endeavor to
cooperate to assure that any press releases and announcements be approved by the
appropriate representatives of each Party. Each Party agrees to use commercially
reasonable efforts to give any approval required under this Section 5.03, or to
indicate that such approval will not be given, 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.
SECTION 5.04 Expenses. Each Party shall bear its own expenses in
connection with the negotiation, execution and delivery of the Operative
Documents.
SECTION 5.05 Undertaking as to Affiliate Obligations. Each Party
shall cause all covenants, conditions and agreements to be performed, observed
or satisfied by any of its Affiliates expressly set forth in any of the
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
pursuant to the New Operating Agreement, any event of dissolution of FVC-Japan
caused by such Affiliate. Nothing in Section 5.01 (Covenants of the Parties) or
in this Section 5.05 shall be construed to create any right in any Person other
than the Parties.
SECTION 5.06 Continuity and Maintenance of Operations. During the
term of this Agreement, each Party agrees to use all reasonable efforts
consistent with past practice and policies to (i) preserve intact in all
material respects its present business operations, (ii) keep available the
services of its key employees as a group, and (iii) preserve its relationships
with suppliers, licensors, licensees, and others having business relationships
with it, each to the extent necessary to allow it to perform its obligations
under the Operative Documents and to allow FVC-Japan to conduct its business as
contemplated in the most recently approved Business Plan.
SECTION 5.07 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 ability to
perform its obligations under any of the Operative Documents or the ability of
FVC-Japan to conduct its business as contemplated in the most recently approved
Business Plan, or (ii) any breach or failure to satisfy any condition or
covenant contained herein or in any other Operative Document by such Party.
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ARTICLE VI
COVENANTS CONCERNING NAND FLASH MEMORY PRODUCT BUSINESS
SECTION 6.01 Technology Transfers.
(a) Toshiba shall use all reasonable efforts to develop, and, in
exchange for the payments made by SanDisk under the Common R&D Agreement (as
hereinafter defined), upon successful development of 0.21, 0.16, 0.13 [***]
micron process technology applicable to the manufacturing and testing of NAND
Flash Memory Products ("NAND Process Technology") that can be implemented in a
commercially viable manner, Toshiba shall transfer such technology and all
improvements thereto [***] developed by Toshiba during the term of the Common
R&D Agreement, to such manufacturing facilities, other than the Yokkaichi
Facility, as may hereafter be agreed upon by the Parties (each, a "New
Facility"). Timing of the delivery of technology transfers shall be based on,
among other things, available capacity and shall be in accordance with the
decision to be made from time to time by the Management Committee.
(b) Whenever a technology transfer is required hereunder, Toshiba
shall deliver such level of NAND Process Technology to the applicable New
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) [***].
SECTION 6.02 Start-up Services at the Yokkaichi Facility.
(a) During the Start-Up Period (as hereinafter defined), various
activities will be undertaken to physically transfer the FVC Owned Equipment and
the Leased Equipment (collectively, the "Transferred Equipment"), from DSC's
facility to the Yokkaichi Facility, with the intent to prepare the Yokkaichi
Facility for use of the FVC-Japan Equipment to produce wafers, and during such
period of transfer, equipment will be set up, modified and processes refined to
achieve reasonable manufacturing yield and overall quality (such activities, the
"Start-Up Services"). The costs of the Start-Up Services (the "Start-Up Costs")
shall be Yokkaichi's actual expenses for operations together with an allocation
(approved by the Parties) of common indirect costs incurred
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during the Start-Up Period, and shall include, but are not limited to, personnel
costs, material costs, FVC-Japan Equipment occupancy costs and other operating
expenses. Start-Up Costs shall not include the costs described in Section
6.02(c)(i) and (ii). The term "Start-Up Period" means the period commencing on
the execution of this Agreement and ending on either the date of the first wafer
in for [***] L/M production or December 31, 2002, whichever occurs earlier. As
of the date hereof, the Parties have determined that, SanDisk shall be
responsible for [***] of the Start-Up Costs. Such [***] shall be invoiced
quarterly by Toshiba to SanDisk in proportion to the level of Start-Up Services
expected to be completed during the relevant period as follows: (i) [***] on
June 28, 2002, (ii) [***] on September 27, 2002; and (iii) [***] on December 27,
2002. Payment of each invoiced amount shall be due 45 days after the date of
such invoice.
(b) The Parties agree that the physical transfer of the
Transferred Equipment will occur on the basis of the following understanding:
(i) Toshiba shall bear, and shall reimburse SanDisk (in
such manner as may be mutually agreed by the Parties) for, all costs and
expenses related to the disposal of those assets of FVC listed on
Schedule 6.02(b). For the avoidance of doubt, it is the intention of the
Parties that such costs and expenses have no financial impact on SanDisk.
(ii) Toshiba will bear all transportation and insurance
expenses related to the transfer of the Transferred Equipment. [***].
(iii) [***].
SECTION 6.03 Expanded Capacity.
(a) The Parties intend to meet demand for increased capacity by
equally investing in, and jointly building (except for the expansion of the
Yokkaichi Facility (not including the FVC-Japan Equipment), unless otherwise
agreed upon by the Parties), and sharing, on equal or substantially equal terms,
equal amounts of new capacity for NAND Flash Memory Products. Schedule 6.03 sets
forth a list in order of priority of expanding the manufacturing capacity of
NAND Flash Memory Products. Toshiba shall be allocated NAND Flash Memory Product
capacity of [***] L/M and SanDisk shall be allocated NAND Flash Memory Product
capacity of [***] L/M at the Yokkaichi Facility (not including the FVC-Japan
Equipment). FVC-Japan Equipment shall be installed with a targeted maximum
manufacturing capacity for NAND Flash Memory Products of [***] L/M, to be
allocated to each Party on an equal basis. Toshiba shall have the right, in its
sole discretion, to expand the manufacturing capacity for NAND Flash Memory
Products of the Yokkaichi Facility, by up to a maximum of [***] L/M; provided,
that, SanDisk shall have the right to have allocated up to [***] of any such
expanded capacity so long as SanDisk commits to load such additional capacity
for six (6) months, and provided, further, that Toshiba may, in its sole
discretion, decrease the manufacturing capacity of the Yokkaichi Facility (not
including FVC-Japan Equipment), subject to Section 7.02(b).
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[***] 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.
(b) Once the FVC-Japan Equipment installed at the Yokkaichi
Facility has achieved NAND Flash Memory Products manufacturing capacity of [***]
L/M, and after such time as the Yokkaichi Facility (not including the FVC-Japan
Equipment) has achieved NAND Flash Memory Products manufacturing capacity of
[***] L/M, the Management Committee will determine whether to further expand
capacity at the Yokkaichi Facility or to establish a New Facility with capacity
to manufacture NAND Flash Memory Products at a targeted capacity to be
determined by the Management Committee, not to exceed [***] L/M. SanDisk shall
have the option to commit to an allocation of such converted capacity to
manufacture NAND Flash Memory Products, up to a maximum of [***] L/M.
(c) Until (i) the Yokkaichi Facility (not including the FVC-Japan
Equipment) has achieved the expansion of its manufacturing capacity for NAND
Flash Memory Products, if any, determined by Toshiba in accordance with Section
6.03(a), (ii) the FVC-Japan Equipment installed at the Yokkaichi Facility has
achieved a NAND Flash Memory Product manufacturing capacity of [***] L/M, and
(iii) the Parties have further expanded capacity at the Yokkaichi Facility or
established a New Facility with a capacity to manufacture NAND Flash Memory
Products in an amount determined by the Management Committee (not to exceed a
targeted maximum capacity of [***] L/M), the Parties shall not make or cause to
be made any other increases in the manufacturing capacity for NAND Flash Memory
Products. After the capacity expansions described in clauses (i), (ii) and (iii)
of the preceding sentence have been achieved, either Party shall have the
one-time option to expand its capacity to manufacture NAND Flash Memory
Products; provided, that, in no event shall such Party's capacity [***] of the
total combined committed capacity to manufacture NAND Flash Memory Products,
after giving effect to such additional expansion.
(d) Notwithstanding anything in this Section 6.03 to the
contrary, if SanDisk desires to purchase more than [***] L/M of NAND [***] in
the calendar year of 2003 or anytime thereafter, and Toshiba cannot offer such
additional capacity at a market competitive price, then (i) SanDisk may purchase
such additional capacity [***], and (ii) if SanDisk purchases such additional
capacity from another source, Toshiba may thereafter utilize more than [***] of
the total NAND manufacturing capacity and Toshiba shall no longer be subject to
the last sentence of Section 6.03(c); provided, however, SanDisk shall continue
to be entitled to purchase (A) [***] L/M of NAND [***] from FVC-Japan under and
pursuant to the SanDisk Purchase and Supply Agreement and (B) up to [***] L/M of
NAND [***] from Yokkaichi under and pursuant to the SanDisk Foundry Agreement.
(e) After the capacity expansions described in Section 6.03(a),
(b) and (c), any additional capacity expansion shall be determined by the
Management Committee and shall be made by mutual agreement of the Parties.
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[***] 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.
(f) All NAND Flash Memory Products will be obtained by the
Parties or for the Parties through their respective Affiliates from FVC-Japan,
except that each Party may obtain, directly or indirectly, a combined total of
up to [***] L/M of NAND Flash Memory Products produced at the Yokkaichi Facility
(not including the FVC-Japan Equipment), which shall be obtained according to
agreed upon allocations in accordance with this Section 6.03. Notwithstanding
the foregoing, all orders for NAND Flash Memory Products not ordered through
FVC-Japan shall be reported to FVC-Japan on a quarterly basis.
(g) If the Parties mutually agree to secure external
manufacturing sources other than the Yokkaichi Facility through joint investment
or investment by either Party in accordance with this Section 6.03, FVC-Japan
and Toshiba will jointly transfer the applicable manufacturing technology and
know-how to such source. FVC-Japan 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. The Parties may purchase NAND Flash Memory Products manufactured at
such external source only from FVC-Japan. 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 from such external manufacturing source. If both Parties request
such new external capacity, then FVC-Japan 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.
SECTION 6.04 Capacity Sharing Arrangement.
(a) Each of the Parties will have the right and obligation,
through FVC-Japan, to utilize 50% of the FVC-Japan Equipment's manufacturing
capacity based on a measure of equivalent wafer starts per day 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 NAND Flash Memory
Products being produced for such Parties. Where the Parties purchase the same
output volume (up to and including 50% of the Yokkaichi Target Capacity (as
hereinafter defined)) for equivalent NAND Flash Memory Products supplied by
FVC-Japan, the Parties will pay the same purchase price per die or packaged
unit. If a Party is unable to utilize 50% of FVC-Japan's manufacturing capacity
for NAND Flash Memory Products, such Party may contract with FVC-Japan to
utilize its surplus capacity to manufacture such Party's proprietary products,
including but not limited to controllers or Flash Memory products that are not
NAND Flash Memory Products, provided, that such Party installs the necessary
process technology and bears all incremental costs (measured as incremental
costs above the Yokkaichi
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SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Manufacturing Costs (as hereinafter defined) at the then-current maximum
capacity of the FVC-Japan Equipment) associated with the adverse impact on the
manufacture of NAND Flash Memory Products. If either Party is unable to use its
allocated capacity, the Parties may negotiate the terms of a transfer of such
capacity shortfall to the Party not experiencing such shortfall. To the extent
that a Party is not able to utilize excess capacity or transfer such capacity to
the other Party, the Party experiencing such shortfall will pay the incremental
cost increase to the Party not experiencing a shortfall (or pay to FVC-Japan an
under-utilization fee in accordance with a formula to be mutually determined by
the Parties).
(b) 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. Any adverse incremental costs (measured as
incremental costs above the Yokkaichi Manufacturing Costs at the then-current
maximum capacity of the FVC-Japan Equipment) associated with the manufacture and
production of such Proprietary NAND Flash Memory will be borne by the initiating
Party. 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 unless it receives the consent of the
other Party to an increase in such output volume above such limit.
(c) 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 or NAND Flash Memory-related controllers,
and the Originating Party and the Non-Originating Party shall each refer such
matter to the Coordinating Committee (as defined in the Product Development
Agreement). If the Coordinating Committee unanimously decides that such planned
development shall be undertaken jointly, then the cost of such joint development
shall be borne by each Party in accordance with the Product Development
Agreement, and the NAND Flash Memory Products manufactured following such joint
development shall be considered non-Proprietary NAND Flash Memory Products for
purposes of Section 6.04(b) above; 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
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[***] 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.
NAND Flash Memory Products, or (ii) treat such NAND Flash Memory Products as
Proprietary NAND Flash Memory Products for purposes of Section 6.04(b) above. 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.
(d) Each Party may use a portion of its total allocated capacity
to cause controllers to be manufactured at a New Facility or at the Yokkaichi
Facility using the FVC-Japan Equipment, including NAND Flash Memory-related
controllers, and non-NAND Flash Memory-related products which are proprietary to
that Party and which need not be shared with the other Party. Any adverse
incremental costs (measured as incremental costs above the Yokkaichi
Manufacturing Costs at the then-current maximum capacity of the FVC-Japan
Equipment) associated with the manufacture and production of such proprietary
designs will be borne by the initiating Party. 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 such proprietary 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.
SECTION 6.05 Creation of Management Committee. Immediately after
the Closing, the Parties shall establish a management committee (the "Management
Committee") to manage the objectives of FVC-Japan set forth in the New Operating
Agreement and certain affairs of FVC-Japan.
(a) Authority. The Management Committee shall have the authority
to (i) advise FVC-Japan with respect to policy and operating matters common to
Toshiba and SanDisk as well as on such other matters as FVC-Japan may decide to
refer to the Management Committee from time to time, (ii) preside over and pass
upon any disputes regarding operational matters (but not with respect to alleged
breaches of contractual obligations under the Operative Documents) that may
arise and cannot be resolved by FVC-Japan, in accordance with Section 9.03
(Dispute Resolution), and (iii) take the actions specified to be taken by the
Management Committee in this Section 6.05 and in Sections 6.01 (Technology
Transfer), 6.03 (Expanded Capacity) and 9.03 (Dispute Resolution).
(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
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Section 6.05 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.
(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 Representative shall be entitled to compensation from FVC or
FVC-Japan for serving in such capacity.
(iv) Each Appointing Party shall notify the other Appointing
Party and FVC-Japan 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 FVC-Japan 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 shall be required for
purposes of approving 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 6.05(c) (Meetings, Notice, etc.), 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
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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 FVC-Japan
in writing of a change in such appointment. The resignation or removal of
a Committee Representative shall not invalidate any act of such Committee
Representative taken before the giving of such written notice of the
removal or resignation of such Committee Representative (or alternate
Committee Representative).
(c) Meetings, Notice, etc.
(i) Meetings of the Management Committee shall be held at
such location or locations as may be selected by the Management Committee
from time to time.
(ii) Regular meetings of the Management Committee shall be
held on such dates and at such times as shall be determined by the
Management Committee and shall be held on a bi-annual basis or such other
period as agreed upon by the Parties.
(iii) Notice of any regular meeting or special meeting
pursuant to Section 6.05(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 6.05(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 6.05, 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 6.05(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 Operative Documents or FVC-Japan.
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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 6.05(c)(iii).
(v) The actions taken by the Management Committee at any
meeting, however called and noticed, shall be as valid as though taken at
a meeting duly held after regular call and notice if (but not until),
either before, at or after the meeting, any Committee Representative as
to whom such meeting was improperly held duly executes and delivers a
written waiver of notice or a written consent to the holding of such
meeting; provided, however, any Committee Representative who is present
at a meeting and does not protest the failure of notice shall be deemed
to have received adequate notice thereof. A vote of the Management
Committee may be taken only either in a meeting of the members thereof
duly called and held or by the execution by the Committee Representatives
eligible to cast all the votes on the Management Committee without a
meeting of a consent setting forth the action so taken, and identified as
a consent of the Committee Representatives pursuant to this Section 6.05.
(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 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.
(d) 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.
SECTION 6.06 Personnel.
(a) Subject to the terms and conditions of this Section 6.06,
each Party may assign to FVC-Japan, as Seconded Employees, employees whom such
Party believes
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are capable of performing the assignment and likely to contribute to the success
of FVC-Japan and to have a positive impact on FVC-Japan's business environment.
Any liabilities in respect of the employment of Seconded Employees assigned to
work at the Yokkaichi Facility shall be retained by the relevant Party (or its
Subsidiary) that assigned such Seconded Employee to FVC-Japan.
(b) The Parties agree that it is in the best interests of
FVC-Japan to attract capable and qualified potential employees to work at
FVC-Japan. FVC-Japan's management will decide what type of promotional
activities and personal incentives are desirable to help achieve this goal and
shall be responsible for hiring decisions.
(c) The Parties agree that all Seconded Employees, during their
period of assignment to FVC-Japan, are expected to devote their best efforts to
promote the interests and success of FVC-Japan and to perform their work for
FVC-Japan in good faith under the direction of management of FVC-Japan. Each
Party agrees to encourage Seconded Employees assigned to FVC-Japan by such Party
to be dedicated to the best interests and success of FVC-Japan.
(d) The Parties will, by mutual consent, which consents shall not
be unreasonably withheld, agree on the total number of Seconded Employees
assigned to FVC-Japan at any time. The Party that assigns a Seconded Employee to
the Yokkaichi Facility in accordance with the terms hereof shall be responsible
for the salaries, employment-related Taxes and customary and reasonable
additional expenses of such Seconded Employee associated with the temporary
nature of such Seconded Employee's duties, including the costs and expenses
associated with any stock-based compensation (including, but not limited to,
stock options, stock appreciation rights, restricted stock, restricted stock
units and dividend equivalent rights) provided to such Seconded Employees;
provided, however, that FVC-Japan shall be responsible for expenses, mutually
agreed to by the Parties, of a Seconded Employee assigned to a New Facility,
other than as set forth in Schedule 6.01 in connection with the transfer of the
technology.
(e) FVC-Japan shall be responsible for paying any expenses
associated with hiring its employees, including moving and living expenses and
signing bonuses, subject to approval of the Board of Directors after the
Closing.
SECTION 6.07 Non-solicitation of Employees. So long as the
business of FVC-Japan is being continued, 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 officer of FVC or FVC-Japan (other
than a Seconded Employee of such Party or one of its Affiliates) to leave his or
her employment with FVC-Japan prior to the period ending twenty-four (24) months
after the termination of this Agreement; provided, however, that placement of
employment advertisements or other general solicitation for employees not
specifically targeted to the employees or officers of FVC or FVC-Japan shall not
be deemed to constitute direct recruitment. In the event of the dissolution and
upon the liquidation of FVC-Japan, either Party (or any Affiliate of either
Party) may
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solicit any employee or former employee of FVC or FVC-Japan, but neither Party
(nor any of its Affiliates) shall be required to employ any such Person. In the
event that all of the Units of one Party are purchased by the other Party or by
the designee of the other Party, the Parties shall reach agreement on a
reasonable transition plan of up to six months in connection with the services
provided to FVC-Japan by Seconded Employees assigned to FVC-Japan by the Party
selling all of its Units.
SECTION 6.08 External Financing; Additional Equipment.
(a) Funding required by FVC-Japan in excess of the aggregate US
$300 million in cash originally contributed by SENA and SanDisk to FVC will be
obtained by FVC-Japan through loans, equipment leasing transactions and other
methods of financing agreed to by the Parties; provided, however, such funding
shall not exceed US $500 million, without the written consent of each Party. The
types and amount of funding will continue to be evaluated until the time the
financing is required and will be based on, among other things, asset lives,
lease terms and cost of capital. The funding obligations of the Parties shall be
several and not joint, unless otherwise specifically agreed to in writing by
both Parties. It is the intent of the Parties that such obligations be incurred
on a pro rata basis based upon their respective Percentages as of the date on
which such obligations are incurred. The Parties shall provide several but not
joint guarantees of any institutional Indebtedness on a pro rata basis based
upon their respective Percentages as of the date on which such obligations are
incurred if such guarantees are required by third parties from which FVC-Japan
will obtain such funding or if such guarantees would substantially reduce the
interest rate applicable to such Indebtedness. Except as otherwise agreed to in
writing by the Parties, the actual cost of, and liabilities arising from, each
such guarantee shall be borne by the Party that provides such guarantee. In no
event shall the Parties be obligated to provide any joint and several guarantees
to third parties or otherwise be liable to any third party on a joint and
several basis. If either Party is unable to provide guarantees required
hereunder, such Party (or its Affiliates) shall make loans to FVC-Japan in the
amount of the guarantee required to be made by it hereunder; provided, that, the
interest rate for such loans shall not exceed competitive interest rates
denominated in U.S. dollars. Notwithstanding the foregoing, in connection with
the refinancing of the lease facilities with ABN AMRO as lessor which were
recently terminated by FVC by letter dated March 21, 2002, [***].
(b) A definitive list of the FVC-Japan Equipment has not been
completed as of the date hereof. As soon as practicable after the Closing, the
Board of Directors shall establish the process and mechanism for obtaining such
equipment. Such process and mechanism shall include procedures for obtaining
equipment pursuant to arms-length negotiations on the most favorable terms and
conditions available.
SECTION 6.09 Other Activities. During the term of this Agreement
and except as set forth in Section 6.03(d), neither Party nor any of their
respective Affiliates shall: (i) fabricate NAND Flash Memory Integrated Circuits
at any location
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[***] 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.
other than the Yokkaichi Facility or any other fabrication facility agreed upon
by the Parties; (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 Article VI, as such
capacity limitations may be amended from time to time in accordance with this
Article VI. 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 Yokkaichi Facility (subject to the capacity
limitations set forth in this Article VI, as such capacity limitations may be
amended from time to time in accordance with this Article VI). For purposes of
this Section 6.09, "NAND Flash Memory Integrated Circuits" means ICs included in
the definition of NAND Flash Memory Products pursuant to Section 2.01.
SECTION 6.10 Protection of Intellectual Property. Both Parties
share the common recognition that it is important for the success of the NAND
Flash Memory Products business to promote the adoption of such 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 will use reasonable
efforts to protect and enhance the value of NAND Flash Memory Products. Further,
where feasible, each Party shall share with FVC-Japan internally prepared
analyses of competitive products prepared by either Party so as to allow
FVC-Japan 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.
SECTION 6.11 Purchase of Replacement Tools. As soon as
practicable after the Closing and with the intent to facilitate [***] L/M .16u
NAND Flash Memory Product output capacity for FVC-Japan, the Parties will cause
FVC-Japan to purchase (i) certain tools to replace the tools sold to third
parties pursuant to Section 3.03(b)(iii) (the "Replacement Tools") and (ii)
certain tools required in addition to the Replacement Tools to enable FVC-Japan
to attain [***] L/M output capacity for the .16u NAND Flash Memory Product (the
"Additional Capacity Tools"). The Replacement Tools and the Additional Capacity
Tools will be purchased from third party manufacturers and from Yokkaichi as
determined by the Parties. [***]. Unless otherwise agreed by the Parties,
Replacement Tools and Additional Capacity Tools will be 0.13u process
compatible. FVC-Japan shall bear broker fees, if any, transportation, insurance
and installation expenses associated with the Additional Capacity Tools.
[***].
Purchase of tools from the Yokkaichi Facility shall not occur
prior to January 2003. As soon as practical after the Closing, the Parties will
develop a plan to
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[***] 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.
cause FVC-Japan to purchase certain new tools with the intent to facilitate
[***] L/M .13u NAND Flash Memory Product for FVC-Japan by the end of calendar
2002 (the ".13u/MLC Tools"). FVC-Japan shall bear broker fees, if any,
transportation, insurance and installation expenses associated with the .13u/MLC
Tools. In approximately the same time frame, Toshiba shall, at its expense,
purchase and install certain new tools with the intent to upgrade the existing
[***] L/M capacity at the Yokkaichi Facility (not including the FVC-Japan
Equipment) to process .13u/MLC NAND Flash Memory Product.
SECTION 6.12 Installation of FVC-Japan Equipment. FVC-Japan shall
purchase new installation components (including, but not limited to, tool
modification and installation services) related to the FVC-Japan Equipment
(excluding Additional Capacity Tools and .13u/MLC Tools) in an amount not to
exceed the Net Book Value (as of March 31, 2002) of FVC capitalized expenses
related to the installation of (i) the FVC Owned Equipment, (ii) the Leased
Equipment at the DSC Facility and (iii) equipment sold to third parties pursuant
to Section 3.03(b)(iii).
ARTICLE VII
OTHER AGREEMENTS
In addition to this Agreement, the Parties will enter into or
cause to be entered into the following agreements (it being understood that the
descriptions of the following agreements are for reference purposes only, and
the fact that all provisions of said agreements are not included in the
following summary descriptions is not significant to the Parties):
SECTION 7.01 FVC-Japan Foundry Agreement. FVC-Japan and Yokkaichi
shall enter into a foundry agreement (the "FVC-Japan Foundry Agreement") on, or
as soon as practicable after, the Closing. At such time as the FVC-Japan Foundry
Agreement is executed, it shall be deemed an Operative Document hereunder. The
FVC-Japan Foundry Agreement shall provide for ordering procedures, prices,
delivery, cost reporting and other specific terms and conditions for the
manufacture by Yokkaichi and supply to FVC-Japan of NAND Flash Memory Products,
which shall be consistent with the following basic terms:
(a) Facilities, Equipment and Raw Materials. The manufacturing
facilities will be located at the Yokkaichi Facility. FVC-Japan will lease or
sublease certain NAND manufacturing equipment to Yokkaichi to be used in the
manufacture of NAND Flash Memory Products by the FVC-Japan Equipment. Certain
equipment owned by Yokkaichi will also be made available for the manufacture of
NAND Flash Memory Products; provided, that [***], the depreciation and related
costs thereof shall be shared by FVC-Japan. Yokkaichi will be responsible for
obtaining the raw materials to be used in the manufacture of NAND Flash Memory
Products.
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[***] 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.
(b) Production. Yokkaichi will manufacture NAND Flash Memory Products
for FVC-Japan ordered by Toshiba and SanDisk under the terms and conditions of
the Purchase and Supply Agreement (as hereinafter defined). FVC-Japan and
Yokkaichi will use their best efforts to achieve a manufacturing capacity of the
FVC-Japan Equipment of [***] L/M for 0.16 microns (the "Yokkaichi Target
Capacity"). Wafers will be sorted between the Parties such that aggregate yield
losses will be shared on an equal basis.
(c) Operating Relationship. Yokkaichi shall provide all employees
necessary for the manufacturing of the NAND Flash Memory Products by the
FVC-Japan Equipment.
(d) Consideration to be Paid to Yokkaichi. The price charged to
FVC-Japan by Yokkaichi (the "Yokkaichi Sales Price") for the NAND Flash Memory
Products it manufactures under the FVC-Japan Foundry Agreement will be (i) after
commencement of the transition of wafer production from DSC's facility to the
Yokkaichi Facility [***], with respect to the wafers manufactured for SanDisk
under the FVC-Japan Foundry Agreement (which shall not exceed [***] L/M),
without duplication, the sum of [***]. The term "Yokkaichi Manufacturing Costs"
means all of Yokkaichi's costs and expenses which are directly or indirectly
incurred by Yokkaichi in conjunction with its operation and administration of
the FVC-Japan Equipment determined in accordance with Japanese GAAP consistently
applied in accordance with Yokkaichi's past practices and the cost methodology
to be agreed upon by the Parties on or before December 31, 2002. These costs and
expenses include but are not limited to, personnel costs, materials costs,
depreciation, leases, rentals, FVC-Japan Equipment occupancy costs, taxes,
insurance, interest and other operating expenses. The Yokkaichi Manufacturing
Costs shall expressly exclude: [***]. Notwithstanding the foregoing, commencing
on January 1, 2003 and for periods thereafter, the price per wafer, [***], shall
not exceed the prices set forth in (i)(w) above unless Toshiba, after
consultation with SanDisk, makes a capital investment for NAND Flash Memory
which results in a higher wafer price in order to accommodate the extra cost to
Toshiba. [***].
(e) Exclusivity. Except as provided in Section 6.03 (Expanded
Capacity), Yokkaichi shall be FVC-Japan's exclusive manufacturing source for
output of NAND Flash Memory Products up to the total of the Yokkaichi Target
Capacity. FVC-Japan may seek external manufacturing sources for output in excess
of the Yokkaichi Target Capacity in accordance with the capacity expansion
priority set forth in Section 6.03 (Expanded Capacity).
(f) Business Interruption Insurance. The Parties agree to discuss and
negotiate in good faith with respect to the necessity for business interruption
insurance for FVC-Japan. In the event that it is decided to obtain such
insurance coverage, each of the Parties shall be named as an additional insured
on the policy evidencing such coverage and the policy limits for such coverage
shall be an amount sufficient to protect
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[***] 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.
Toshiba's and SanDisk's projected margin on NAND Flash Memory Products.
SECTION 7.02 SanDisk Foundry Agreement. As of the date hereof,
Toshiba and SanDisk shall enter into a foundry and supply agreement in the form
of Exhibit F (the "SanDisk Foundry Agreement") providing for specific terms and
conditions for the manufacture and sale of NAND Flash Memory Products at the
Yokkaichi Facility (not including the FVC-Japan Equipment), which shall be
consistent with the following basic terms:
(a) Facilities, Raw Materials and Equipment: Toshiba will procure and
be responsible for all facilities, raw materials and equipment utilized in the
manufacture of NAND Flash Memory Products at the Yokkaichi Facility (not
including the FVC-Japan Equipment).
(b) Production. Yokkaichi will manufacture and supply NAND Flash
Memory Products in accordance with the demand requirements of Toshiba and
SanDisk. Toshiba agrees to allocate a portion of the manufacturing capacity of
the Yokkaichi Facility (not including the FVC-Japan Equipment) to SanDisk in
accordance with the allocation set forth in Schedule 7.02(b). Such allocation
will be subject to SanDisk's loading commitment to be made quarterly pursuant to
the SanDisk Foundry Agreement. In order to meet the capacity demands of both
Parties, Toshiba will expand the Yokkaichi Facility (not including the FVC-Japan
Equipment), up to [***] L/M in the aggregate. Such expansion shall be made at
Toshiba's own expense. The timing and amount of the investment necessary to
effect such expansion shall be in the sole discretion of Toshiba. If Toshiba
expands the capacity of the Yokkaichi Facility (not including the FVC-Japan
Equipment) from [***] L/M to [***] L/M, SanDisk shall have the right to utilize
up to [***] of such incremental capacity, up to a maximum of [***] L/M,
provided, however, once SanDisk exercises such right to utilize such incremental
capacity, SanDisk shall be obligated to commit to load such capacity for three
(3) months thereafter. Notwithstanding the foregoing, SanDisk acknowledges that
Toshiba may, in its sole discretion, decrease the manufacturing capacity of the
Yokkaichi Facility (not including the FVC-Japan Equipment), subject to the prior
loading commitment for three (3) month period made by SanDisk; provided,
however, a maximum of [***] L/M of such incremental capacity of SanDisk may
decrease to zero if Toshiba gives SanDisk written notice two (2) months prior to
the next three (3) month period, in which case Toshiba's manufacturing capacity
shall be proportionately reduced.
(c) Pricing of NAND Flash Memory Products Produced at the Yokkaichi
Facility. The purchase price to SanDisk for NAND Flash Memory Products produced
at the Yokkaichi Facility (not including the FVC-Japan Equipment) pursuant to
the SanDisk Foundry Agreement shall be as set forth in the SanDisk Foundry
Agreement and shall be consistent with the following basic terms:
(i) Prior to commencement of the transition of wafer production
from DSC's facility to the Yokkaichi Facility [***], Toshiba shall sell
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[***] 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.
wafers manufactured at the Yokkaichi Facility (not including the FVC-Japan
Equipment) to SanDisk directly at a price equal to [***].
(ii) After commencement of the transition of wafer production from
DSC's facility to the Yokkaichi Facility (not including the FVC-Japan
Equipment), with respect to up to [***] L/M of wafers requested by SanDisk
in excess of the first [***] L/M of wafers purchased by SanDisk under the
Purchase and Supply Agreement, Toshiba shall sell wafers manufactured at
the Yokkaichi Facility (not including the FVC-Japan Equipment) to SanDisk
directly at a price equal to:
(A) With respect to [***];
(B) With respect to [***];
(C) With respect to [***]; and
(D) With respect to [***], in connection with the SanDisk
Foundry Agreement, the price for wafers manufactured at the Yokkaichi
Facility (not including the FVC-Japan Equipment) will be negotiated in
good faith among the Parties; [***].
(d) Priority of FVC-Japan NAND Flash Memory Products. Toshiba and
SanDisk shall not order or purchase NAND Flash Memory Products produced at the
Yokkaichi Facility (not including the FVC-Japan Equipment) except to the extent
FVC-Japan is unable to procure NAND Flash Memory Products manufactured at the
Yokkaichi Facility by the FVC-Japan Equipment in accordance with the demand
requirements of Toshiba and SanDisk. In the event that the Parties intend to
meet increased demand for NAND Flash Memory Products by expanding capacity at
the Yokkaichi Facility (not including the FVC-Japan Equipment), such expansion
of capacity shall be pursuant to the order set forth in Section 6.03 (Expanded
Capacity).
(e) Any dispute arising under the SanDisk Foundry Agreement (but not
under any other agreement specified in this Agreement) shall be resolved by
binding arbitration in Tokyo, Japan under the rules of the International Chamber
of Commerce. Each party shall bear its own costs and expenses of arbitration,
including attorneys' fees.
SECTION 7.03 Purchase and Supply Agreement. FVC-Japan will enter into
an agreement with the Parties or their respective Affiliates providing for
specific terms and conditions for the purchase by the Parties of NAND Flash
Memory Products from FVC-Japan (the "Purchase and Supply Agreement"), which
shall be consistent with the following basic terms:
(a) Manufacturing. Except as provided in Sections 6.03 (Expanded
Capacity) and 7.02 (SanDisk Foundry Agreement), FVC-Japan shall manufacture or
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SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
cause to be manufactured 100% of the demand of the Parties for NAND Flash Memory
Products.
(b) Sales Price for NAND Flash Memory Products. The sales price (the
"FVC-Japan Sales Price") charged by FVC-Japan to the Parties for wafers
manufactured pursuant to the FVC-Japan Foundry Agreement with respect to the
sale of the first [***] L/M of wafers pursuant to Section 7.01 will be a price
equal to the sum of (A) the [***]; provided, however, if during the transition
of the wafer production from DSC's facility to the Yokkaichi Facility [***]. The
Parties further agree to discuss in good faith at the request of Toshiba or
SanDisk the possibility of sales by FVC-Japan to non-Japanese Affiliates of
Toshiba or SanDisk if such sales can be made in a manner mutually beneficial to
the Parties. FVC-Japan shall use profits earned from the sale of NAND Flash
Memory Products for future investment in manufacturing and production as well as
for expenses associated with managing FVC-Japan and reimbursing expenses for
Seconded Employees.
SECTION 7.04 Common R&D Agreement. As of the date hereof, the Parties
shall amend the Common R&D and Participation Agreement entered into as of May 9,
2000 (as amended in accordance herewith, the "Common R&D Agreement") in the form
of Exhibit G attached hereto (the "Amendment to Common R&D Agreement").
SECTION 7.05 Product Development Agreement. As of the date hereof,
the Parties shall amend that certain Product Development Agreement entered into
as of May 9, 2000 (as amended in accordance herewith, the "Product Development
Agreement") for the design and development of new NAND Flash Memory Products and
NAND Flash Memory-related controllers in the form of Exhibit H attached hereto
(the "Amendment to Product Development Agreement").
SECTION 7.06 Other Matters.
(a) Sale of SmartMedia. Upon the request of SanDisk, Toshiba will
sell SmartMedia to SanDisk on an OEM basis at mutually agreed terms and
conditions, including price.
(b) Assembly and Testing Services Agreement. The Parties will
consider joint arrangements for the provision of assembly (TSOP, card, PTP,
etc.) and test services. Subject to the availability of Toshiba's capacity,
Toshiba will, at SanDisk's request, provide assembly and test services at cost
plus a reasonable margin. Alternatively, the Parties will, at equal cost to
each, subcontract with third parties for such assembly and test services.
(c) Manufacture of Controllers. SanDisk may request that Toshiba
manufacture controllers for SanDisk, in which case, subject to availability of
manufacturing capacity, Toshiba agrees to sell the controllers to SanDisk at
prices and
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[***] 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.
under terms and conditions at least as favorable as those previously or
presently made available by Toshiba to any other party.
(d) No Duplication of Costs or Expenses. It is the intent of the
parties that any payments made by SanDisk under or pursuant to the Common R&D
Agreement, the Product Development Agreement or the Yokkaichi Service Agreement
shall not be duplicative and SanDisk shall in no event be required to pay more
than once for any service provided under such agreements, if such service is
provided under more than one agreement, including without limitation, the
Start-Up Services. In addition, if SanDisk makes a direct payment for any
service provided under any such agreement, the cost incurred by Yokkaichi or
FVC-Japan, 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.
SECTION 7.07 Yokkaichi Service Agreement. The Parties agree that
Yokkaichi and FVC-Japan shall enter into an agreement pursuant to which
Yokkaichi shall provide for FVC-Japan certain services such as administrative,
clerical, accounting and human resource services (the "Yokkaichi Service
Agreement").
SECTION 7.08 Patent Cross License. Toshiba and SanDisk are parties to
a Patent Cross License Agreement, dated July 30, 1997 and amended as of May 9,
2000 (the "License Agreement") under which Toshiba pays royalties to SanDisk in
consideration for the license granted by SanDisk to Toshiba. The License
Agreement expires on or about July 29, 2002. As of the date hereof, the Parties
shall enter into a Second Amendment to the Patent Cross License Agreement in the
form attached as Exhibit I (the "License Amendment").
ARTICLE VIII
TERMINATION
SECTION 8.01 Termination.
(a) This Agreement shall be terminated automatically upon the earlier
of the transfer of all of a Party's Units to the other Party (or its Affiliate)
or upon completion of the dissolution and liquidation of FVC-Japan pursuant to
Article XI (Dissolution) of the New Operating Agreement (the date of such
transfer or dissolution and liquidation, the "Termination Date"); provided,
that, all obligations or liabilities of either Party which are accrued or owing
prior to such termination and the Parties' covenants contained in Section 5.03
(Public Announcements) shall survive such termination.
(b) Upon termination of this Agreement resulting from an event of
dissolution of FVC-Japan pursuant to Section 11.01(a) of the New Operating
Agreement:
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(i) The Parties shall further amend the License Agreement, as
in effect as of the Termination Date, to specify that each Party's
patents issued or issuing on patent applications entitled to an
effective filing date prior to the 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 8.01(b)(i) shall not be
greater than the scope of those granted under the License Agreement,
as in effect as of the Termination Date.
(ii) Toshiba shall grant to SanDisk, effective upon such
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 by Yokkaichi, and SanDisk
shall have full access to all such know-how at the Yokkaichi Facility
which has been transferred to Yokkaichi prior to the Termination Date.
(c) Upon termination of this Agreement resulting from an event of
dissolution of FVC-Japan or one Party's acquisition of the other Party's
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 11.05 (Dissolution Upon Notice) of the New
Operating Agreement:
(i) Toshiba or the Acquiring Party, as the case may be, will,
upon the request, prior to the Termination Date, of (A) SanDisk (such
request to be made at the time of its notice pursuant to Section 11.05
of the New Operating Agreement) in the case of the dissolution of
FVC-Japan 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 FVC-Japan under this Agreement as
of the 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
Termination Date: 100% of the Termination Capacity
(B) During the 7th through the 12th month following the
Termination Date: 75% of the Termination Capacity
(C) During the 13th through the 18th month following the
Termination Date: 50% of the Termination Capacity.
(ii) Toshiba and SanDisk and their respective Affiliates
shall have a perpetual, fully paid-up, royalty-free right to use
technology previously transferred to one another during the term of
this Agreement.
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(iii) The Parties shall further amend the License
Agreement to specify that each Party's patents issued or issuing
on patent applications entitled to an effective filing date prior
to the 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 8.01(c)(iii) shall not be
greater than the scope of those granted under the License
Agreement, as in effect as of the Termination Date.
(iv) Upon termination of this Agreement resulting from
an event of dissolution of FVC-Japan caused by Toshiba's election
to withdraw from FVC-Japan pursuant to the New Operating
Agreement, then Toshiba hereby grants to SanDisk, effective upon
the 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 by Yokkaichi, and
SanDisk shall have full access to all such know-how at the
Yokkaichi Facility which has been transferred to Yokkaichi prior
to the Termination Date.
(d) Upon termination of this Agreement resulting from an
event of dissolution of FVC-Japan or Toshiba's acquisition of SanDisk's
Units pursuant to Section 11.04 (Dissolution by Unilateral Option) of
the New Operating Agreement:
(i) Yokkaichi will, upon request of SanDisk given
within sixty (60) days of the notice given by SanDisk pursuant to
Section 11.04 of the New Operating Agreement, continue to
manufacture products for SanDisk for a period of eighteen (18)
months following the 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 FVC-Japan under this Agreement as of the
Termination Date (the "SanDisk Termination Capacity"):
(A) During the first six months following the
Termination Date: 100% of the SanDisk Termination Capacity
(B) During the 7th through the 12th month
following the Termination Date: 75% of the SanDisk
Termination Capacity
(C) During the 13th through the 18th month
following the 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.
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(iii) The Parties shall further amend the License Agreement to
specify that each Party's patents issued or issuing on patent
applications entitled to an effective filing date prior to the
Termination Date are licensed at the royalty rates specified in
Schedule 8.01(d) for five (5) years following the Termination Date;
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 Termination Date. The scope of the licenses as amended
pursuant to this Section 8.01(d)(iii) shall not be greater than the
scope of those granted under the License Agreement, as in effect as of
the Termination Date.
(e) Upon termination of this Agreement resulting from an event of
dissolution of FVC-Japan or one Party's acquisition of the other Party's Units
following a Deadlock (as defined in the New Operating Agreement) pursuant to
Section 10.04 (Dispute Resolution; Deadlock Respecting Business Plan) of the New
Operating Agreement:
(i) In the case of one Party's acquisition of the other
Party's Units in FVC-Japan pursuant to Section 10.04(e) of the New
Operating Agreement, the Acquiring Party will 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 Termination Date in accordance with the following ramp down
manner:
(A) During the first six months following the
Termination Date: 100% of the SanDisk Termination Capacity
(B) During the 7th through the 12th month following the
Termination Date: 75% of the SanDisk Termination Capacity
(C) During the 13th through the 18th month following
the Termination Date: 50% of the SanDisk Termination Capacity.
(ii) The Parties and their respective Affiliates shall have a
perpetual, fully paid-up, royalty-free right to use technology
previously transferred to one another during the term of this
Agreement.
(iii) The Parties shall further amend the License Agreement to
specify that each Party's patents issued or issuing on patent
applications entitled to an effective filing date prior to the
Termination Date are licensed: (x) at the royalty rates specified in
Schedule 8.01(e) until March 31, 2008; (y) at the royalty rates
specified in Schedule 8.01(d) from April 1, 2008 through December 31,
2010; and (z) thereafter, on a royalty-free basis. Both Parties shall
negotiate
Master Agreement
33
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 Termination
Date to mutually agree on royalty rates for patents filed by each Party
after the Termination Date. The scope of the licenses as amended pursuant
to this Section 8.01(e)(iii) shall not be greater than the scope of those
granted under the License Agreement, as in effect as of the Termination
Date.
(f) Upon termination of this Agreement resulting from an event of
dissolution of FVC-Japan or a Party's acquisition of the other Party's Units
described in Section 11.03 (Dissolution Upon Event of Default) of the New
Operating Agreement:
(i) The Parties shall further amend the License Agreement to
specify that each Party's patents issued or issuing on patent applications
entitled to an effective filing date prior to the Termination Date are
licensed at the royalty rates specified in Schedule 8.01(f) for seven (7)
years after the Termination Date or until the end of calendar 2015,
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 by Yokkaichi, and SanDisk shall have full access to all
such know-how at the Yokkaichi Facility which has been transferred to
Yokkaichi prior to the Termination Date.
(g) Upon termination of this Agreement resulting from an event of
dissolution described in Section 11.01(f) (Bankruptcy Event) of the New
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 License Amendment 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 by Yokkaichi, and SanDisk shall have full access to all
such know-how at the Yokkaichi Facility which has been transferred to
Yokkaichi prior to the Termination Date.
(ii) If such termination is caused by a Bankruptcy Event in
respect of SanDisk, the license granted to Toshiba under SanDisk Licensed
Master Agreement
34
Patents (as defined in the License Amendment) pursuant to the License
Amendment shall continue on a royalty-free basis.
(h) Upon termination of this Agreement pursuant to Section 9(b)(2) of
the Indemnification Agreement, the license granted to Toshiba under SanDisk
Licensed Patents pursuant to the License Amendment shall continue on a
royalty-free basis.
(i) Termination of this New Master 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.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 No Partnership. Nothing contained in this Agreement
shall be deemed or construed to make the Parties, or any Affiliate of any of
them, partners or joint venturers with each other. FVC-Japan shall not be a
general partnership, a limited partnership or a joint venture, and no Party
shall be considered a partner or joint venturer of or with any other Party, for
any purposes other than for Federal, state and other tax purposes.
SECTION 9.02 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;
provided, however, that any Operative Document described herein shall be
governed by the governing law specified in that Operative Document in the manner
specified in that Operative Document.
SECTION 9.03 Dispute Resolution.
(a) The Parties shall use the process set forth in Section 10.04(a)
and (b) (Dispute Resolution) of the New Operating Agreement to address any
disputes which may arise concerning any material breach of any provision of any
of the Operative Documents, other than Events of Default, and in the absence of
exigent circumstances, the Parties shall refrain from commencing any lawsuit or
seeking judicial relief in connection with any such disputes until the Parties
have pursued such process to its conclusion. For such alleged breaches, the
Party alleging breach shall initiate the process by providing a written notice
to the individuals referred to in Section 10.04(b) of the New Operating
Agreement (the "Designated Individuals"), describing with specificity the facts
and circumstances forming the basis of the alleged breach, with the factual
explanation cross-referenced to any actions taken pursuant to Section 10.04(a)
of the New Operating Agreement and the applicable provisions of the relevant
Operative Document alleged to have been breached. Such notice shall also provide
a list of specific actions that, if taken by the alleged breaching Party, would
result in curing such alleged breach, if capable of
Master Agreement
35
cure, within sixty (60) days of the end of the dispute resolution process
referred to in said Section 10.04(b) of the New Operating Agreement. The Party
alleging breach and the alleged breaching Party will prepare and present their
views, including evidence collected, on such matter to the Designated
Individuals, in writing; and later in person to both Designated Individuals in a
single meeting, if requested by either Designated Individual. The written
description shall be provided not less than seven Business Days prior to any
meeting requested to be in person by either Designated Individual. If
irreparable harm would result from such alleged breach continuing during the
normal dispute resolution process, the Parties will accelerate the process at
the request of any party to the Operative Document alleged to have been
breached.
(b) If senior management or the Management Committee cannot resolve
the dispute in accordance with Section 9.03(a), 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.
SECTION 9.04 Damages Limited. IN THE ABSENCE OF ACTUAL FRAUD, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO OR BE REQUIRED TO INDEMNIFY THE 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.
Master Agreement
36
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the Parties as of the date first above written.
TOSHIBA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Senior Vice President
President & CEO
Semiconductor Company
SANDISK CORPORATION
By: /s/ ▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇
Title: President & Chief Executive Officer
[Signature Page to New Master Agreement]
37
SCHEDULE 2.01
Definition Regarding Embedded NAND Flash
The main function and value of any product is Flash Memory if the total NAND
flash memory array area is greater than [***] of the total die area or the
product is a cut-down or derivative of a standard NAND Flash Memory Product.
Master Agreement
38
[***] 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.
SCHEDULE 4.05
Litigation; Decrees.
On or about August 3, 2001, the Lemelson Medical, Education &
Research Foundation filed a complaint for patent infringement against SanDisk
Corporation and other defendants. The suit was filed in the United States
District Court, District of Arizona. On November 13, 2001, the Lemelson
Foundation filed an Amended Complaint, which made the same substantive
allegations against SanDisk but named more than twenty-five additional
defendants. The Amended Complaint alleges that SanDisk, and the other
defendants, have infringed certain patents held by the Lemelson Foundation
pertaining to bar code scanning technology. By its complaint, the Lemelson
Foundation requests that SanDisk be enjoined from our allegedly infringing
activities and seeks unspecified damages.
On or about March 5, 2002, Samsung Electronics Co., Ltd. filed a
patent infringement lawsuit against SanDisk Corporation in the United States
District Court for the Eastern District of Texas. The lawsuit alleges that
SanDisk infringes four Samsung United States patents, Nos. 5,473,563; 5,514,889;
5,546,341 and 5,642,309, and seeks a preliminary and permanent injunction
against unnamed SanDisk products, as well as damages, attorneys' fees and costs
of the lawsuit.
Master Agreement
39
SCHEDULE 4.07
Patents and Proprietary Rights
See Schedule 4.05.
Master Agreement
40
SCHEDULE 6.01
New Facility Transfer Costs
[***]
Master Agreement
41
[***] 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.
SCHEDULE 6.02(b)
Costs and Expenses Related to Disposal of FVC Assets
[***]
Master Agreement
42
[***] 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.
SCHEDULE 6.03
Priority for Expansion of Manufacturing Capacity of NAND Flash Memory Products
------------------------------------------------------------------------------------------------------------
Toshiba SanDisk
------------------------------------------------------------------------------------------------------------
1. Yokkaichi (not [***] L/M [***] L/M
including the FVC-Japan
Equipment)
------------------------------------------------------------------------------------------------------------
2. Yokkaichi Expansion Minimum [***] Maximum [***]
(at about the same time as [***] L/M (or proportionate [***] L/M (or proportionate
FVC-Japan amount in relation to total amount in relation to total
expansion)(total expansion capacity if expansion capacity if
expansion not to exceed expansion less than [***] expansion less than [***]
[***] L/M) L/M in total) L/M in total)
------------------------------------------------------------------------------------------------------------
2. FVC-Japan (at about [***] L/M [***] L/M
the same time as (or [***] of the actual (or [***] of the actual
Yokkaichi expansion) capacity) capacity)
------------------------------------------------------------------------------------------------------------
3. Yokkaichi Facility or [***] L/M to [***] L/M [***] L/M to [***] L/M
a New Facility (or proportionate amount in (or proportionate amount in
relation to total expansion relation to total expansion
capacity if expansion less capacity if expansion less
than [***] L/M in total) than [***] L/M in total)
------------------------------------------------------------------------------------------------------------
Until the capacity expansions described above are made, no other expansions of capacity shall be permitted
------------------------------------------------------------------------------------------------------------
4. Thereafter, one time (e.g., [***] L/M if previous
capacity expansion TSB allocation is [***] L/M
permitted, in an amount and SD allocation is [***]
not to exceed the capacity L/M)
ratio of [***]
------------------------------------------------------------------------------------------------------------
5. Thereafter, all
capacity expansion must
be mutually agreed upon
------------------------------------------------------------------------------------------------------------
Master Agreement
43
[***] 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.
SCHEDULE 7.02(b)
Allocation of Yokkaichi (not including the FVC-Japan Equipment) NAND Flash
Memory Products
-----------------------------------------------------------------------------------------------------------
Period 1Q02 2Q02 2H02 1H03 and beyond
-----------------------------------------------------------------------------------------------------------
SanDisk [***] [***] [***] [***]
Allocation(L/M)
-----------------------------------------------------------------------------------------------------------
Notes:
Wafers sold to the Parties by Toshiba will have the same yields on an aggregate
basis.
Such capacity includes [***] of 512Mbit 0.21 micron NAND MLC [***] of newly
installed 0.16 micron and 0.13 micron capacity for NAND Flash Memory. For
incremental capacity above [***] L/M at the Yokkaichi Facility, [***] of the
incremental capacity will be allocated to SanDisk, including up to [***] of any
0.13 micron capacity expansion for NAND Flash Memory.
Master Agreement
44
[***] 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.
SCHEDULE 8.01(d)
Royalty in case of SanDisk Unilateral Termination
[***]
Master Agreement
45
[***] 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.
SCHEDULE 8.01(e)
Royalty in case of Deadlock Termination
[***]
46
[***] 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.
SCHEDULE 8.01(f)
Royalty in case of Event of Default Termination
[***]
47
[***] 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.
APPENDIX A
DEFINITIONS, RULES OF CONSTRUCTION AND
DOCUMENTARY CONVENTIONS
In any agreement or instrument that incorporates the definitions set forth
in this Appendix and states that the rules of construction and documentary
conventions set forth herein shall apply to such agreement or instrument, then,
unless such agreement or instrument otherwise requires:
Article I.
Definitions
-----------
The following terms shall have the specified meanings:
"ABN AMRO" means ABN AMRO Bank, N.V.
"Accountants" means such firm of internationally recognized independent
certified public accountants for FVC-Japan as is appointed pursuant to the New
Operating Agreement from time to time. Initially, the Accountants shall be
Deloitte & Touche 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
FVC, FVC-Japan or any of their respective subsidiaries, shall not include either
Party or any of its Affiliates, (b) when used in relation to a Party or any of
its Affiliates, shall not include FVC, FVC-Japan or any of their respective
Subsidiaries.
"Articles" means the Articles of Incorporation of FVC-Japan.
"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 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 FVC-Japan.
"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 Party of its Units or (C)
seeking to impose limitations on the ability of either Party effectively to
exercise full rights as a member or Unitholder, as applicable, of FVC or
FVC-Japan, including the right to act on all matters properly presented to the
Parties pursuant to the New 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 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 FVC-Japan for each relevant
period, approved in accordance with Section 3.04(c) of the New Operating
Agreement and complying with Section 3.04(b) of the New Operating Agreement.
"Capital Contribution" means the capital contribution made by or allocated
to a Party by virtue of its ownership of Units of FVC-Japan, as indicated on
Schedule 6.01 to the New 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 Section 3.01
of the New Master Agreement.
2
"Closing Date" means the date mutually agreed for the Closing by the
Parties; provided, however, that in no event will the Closing Date be later than
April 30, 2002 without the written agreement of both Parties.
"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.
"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).
"DSC" means Dominion Semiconductor Company, L.L.C, a Virginia limited
liability company.
"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 9.01 of the
New Operating Agreement or the breach by such Party of its covenant in
Section 5.01(b) of the New 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.
"Foundry Agreements" means, collectively, the SanDisk Foundry Agreement and
the FVC-Japan Foundry Agreement.
"FVC" means FlashVision, L.L.C., a Virginia limited liability company.
"FVC-Japan" means FlashVision, Ltd., a Japanese limited liability company
(yugenkaisha).
"FVC-Japan Equipment" means, collectively, the FVC Owned Equipment, Leased
Equipment, Replacement Tools, Additional Capacity Tools, .13u/MLC Tools (each as
defined in the New Master Agreement) and any other equipment which is or will,
from time to time, be owned or leased by FVC-Japan.
3
"FVC-Japan Foundry Agreement" means the Foundry Agreement between FVC-Japan
and Yokkaichi.
"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.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976
and the rules and regulations promulgated thereunder.
"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;
(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
4
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.
"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.
"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.
"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 FVC-Japan, the capital accounts of the Parties or the
ability of FVC-Japan to carry out its then-current Business Plan.
"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.
"New Initial Business Plan" means the initial business plan of FVC-Japan to
be agreed to and adopted by the Parties.
"New Master Agreement" means the New Master Agreement dated as of April 10,
2002 by and between Toshiba and SanDisk.
5
"New Operating Agreement" means the New Operating Agreement dated as of
April 10, 2002 between Toshiba and SanDisk.
"Operative Documents" means the New Operating Agreement, the New Master
Agreement, the Articles, the SanDisk Foundry Agreement, the Common R&D
Agreement, the Product Development Agreement and, when executed, the FVC-Japan
Foundry Agreement.
"Party" means Toshiba and SanDisk, and each of them.
"Percentage" means, with respect to any Unitholder (as defined in the New
Operating Agreement), the percentage of such Unitholders' ownership interest in
FVC or FVC Japan, as the case may be. 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 or its Affiliate, 49.9%; provided, however, if either
Unitholder transfers all of its Units to any Affiliate in accordance with the
New 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 FVC-Japan, either
Party or any Affiliate of any such Person as provided in the 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.
"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.
"Purchase and Supply Agreement" means that certain Purchase and Supply
Agreement to be entered into in connection with the New Master Agreement, by and
among FVC-Japan, Toshiba and SanDisk.
"SanDisk" means SanDisk Corporation, a Delaware corporation.
"SanDisk Foundry Agreement" means the Foundry Agreement between Toshiba and
SanDisk.
"Seconded Employee" means an individual who was originally an employee of a
Party or any of its Affiliates and who was assigned to FVC-Japan or any of its
Subsidiaries by such Party or such Affiliate at the request of such Party as
contemplated by Section 6.06 of the New Master Agreement.
"SENA" means Semiconductor North America, Inc., a Delaware corporation.
"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
6
(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 Operative Document, when used in relation to a Party or any of its
Affiliates, shall not include FVC, FVC-Japan 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.
"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 FVC or FVC-Japan at the
request of either Member to (i) implement changes in the manufacturing processes
to be employed for Products to be manufactured for such Member (or its
Affiliates) that are not agreed to by the other Member, (ii) commence
manufacturing other Products for the requesting Member (or its Affiliates) that
the other Member 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 Member (or its
Affiliates).
"Units" means the units of contribution (shussi mochibun) in FVC-Japan, 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.
"Virginia Act" means the Virginia Limited Liability Company Act, as in
effect from time to time.
7
"Yokkaichi Facility" means the manufacturing facility owned and operated by
Toshiba in Yokkaichi-shi, Japan.
Article II.
Rules of Construction and Documentary Conventions
-------------------------------------------------
Section 2.01 Amendment and Waiver. (a) No amendment to or waiver of any
--------------------
agreement or instrument incorporating these Rules of Construction and
Documentary Conventions shall be effective unless it shall be in writing,
identify with specificity the provisions of the applicable agreement or
instrument that are thereby amended or waived and be signed by each party
thereto. Any failure of a party to comply with any obligation, covenant,
agreement or condition contained in such agreement or instrument may be waived
by the party entitled to the benefits thereof only by a written instrument duly
executed 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.
Section 2.02 Severability. If any provision of any agreement or instrument
------------
incorporating these Rules of Construction and Documentary Conventions 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 such agreement or instrument (except as may be expressly
provided in such agreement or instrument) or invalidate or render unenforceable
such provision in any other jurisdiction. To the extent permitted by applicable
law, the Parties waive any provision of law that renders any provision of such
agreement or instrument invalid, illegal or unenforceable in any respect. The
Parties 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 Operative
Documents, considered as a single transaction, cannot be preserved, the
Operative Documents shall either be renegotiated or terminated by mutual
agreement of the Parties.
Section 2.03 Survival. Except as may otherwise be specifically provided in
--------
any agreement or instrument incorporating these Rules of Construction and
Documentary conventions, all covenants, agreements, representations and
warranties of the Parties made in or pursuant to such agreement or instrument
shall survive the execution and delivery of such agreement or instrument and the
closing of the transactions contemplated thereby, notwithstanding any
investigation by or on behalf of any party. Further, the provisions set forth in
Article II hereof shall survive and shall apply with respect to any terminated
agreement which incorporated these Rules of Construction and Documentary
Conventions.
Section 2.04 Assignment. Except as may otherwise be specifically provided
----------
in any agreement or instrument incorporating these Rules of Construction and
Documentary Conventions, a party thereto shall not transfer, or grant or permit
to exist any Lien (except Permitted Liens) on, such agreement or instrument or
any of its rights thereunder (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
8
consent of the other parties) without the prior written consent of each other
party thereto (which consent may be withheld in each such other party's sole
discretion), and any such purported transfer or Lien without such consent shall
be void.
Section 2.05 Remedies; Force Majeure. In no event, except in the case of
-----------------------
fraud, will any party to any agreement or instrument incorporating these Rules
of Construction and Documentary Conventions (except as may be otherwise
expressly provided therein) be liable to another party thereto for special,
indirect, punitive or incidental damages, lost profits, lost savings or any
other consequential damages, even if such party has been advised of the
possibility of such damages, resulting from the breach by it of any of its
obligations thereunder or breach by it or any of its Affiliates of any of their
respective obligations under any other Operative Document or from the use of any
confidential or other information.
(a) Except as may otherwise be specifically provided in any agreement or
instrument incorporating these Rules of Construction and Documentary
Conventions, the rights and remedies of the parties under such agreement or
instrument are cumulative and are not exclusive of any rights or remedies which
the parties would otherwise have. Equitable relief, including the remedies of
specific performance and injunction, shall be available with respect to any
actual or attempted breach of such agreement or instrument; 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 Section 10.03 of the New Master Agreement until
the parties have attempted to resolve the subject dispute by following said
dispute resolution process to its conclusion.
(b) If the due date for any amount required to be paid under an Operative
Document incorporating these Rules of Construction and Documentary Conventions
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 FVC or FVC-Japan pursuant to any Operative Document
incorporating these Rules of Construction and Documentary Conventions, such
party shall have an additional 30 day period to make alternative arrangements to
provide such support.
Section 2.06 Parties in Interest; Limitation on Rights of Others. Any
---------------------------------------------------
agreement or instrument incorporating these Rules of Construction and
Documentary Conventions shall be binding upon and inure to the benefit of the
parties thereto and their permitted successors and assigns. Nothing in any such
agreement or instrument, whether express or implied, shall give or be construed
to give any Person (other than the parties thereto and their permitted
successors and assigns) any legal or equitable right, remedy or claim under or
in respect of such agreement or instrument, unless such Person is expressly
stated in such agreement or instrument to be entitled to any such right, remedy
or claim.
Section 2.07 Table of Contents; Headings. The Table of Contents and Article
---------------------------
and Section headings to any agreement or instrument incorporating these Rules of
Construction
9
and Documentary Conventions 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.
Section 2.08 Counterparts; Effectiveness. Any agreement or instrument
---------------------------
incorporating these Rules of Construction and Documentary Conventions may be
executed by the parties thereto 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. Any agreement or instrument
incorporating these Rules of Construction and Documentary Conventions shall not
become effective until one or more counterparts have been executed by each party
thereto and delivered to the other parties thereto.
Section 2.09 Entire Agreement. Any agreement or instrument incorporating
----------------
these Rules of Construction and Documentary Conventions, together with the other
Operative Documents and the Exhibits, Schedules, Appendices and Attachments
thereto, any agreement entered into simultaneously therewith, and the Initial
Business Plan, when completed, constitute the agreement of the parties to the
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.
Section 2.10 Construction. References in any agreement or instrument
------------
incorporating these Rules of Construction and Documentary Conventions to any
gender include references to all genders, and references in any such agreement
or instrument to the singular include references to the plural and vice versa.
Unless the context otherwise requires, the term "party" when used in any such
agreement or instrument means a party to such agreement or instrument.
References in any such agreement or instrument to a party or other Person
include their respective permitted successors and assigns. The words "include",
"includes" and "including", when used in any such agreement or instrument, shall
be deemed to be followed by the phrase "without limitation". Unless the context
otherwise requires, references used in any such agreement or instrument to
Articles, Sections, Exhibits, Schedules, Appendices and Attachments shall be
deemed references to Articles and Sections of, and Exhibits, Schedules,
Appendices and Attachments to, such agreement or instrument. Unless the context
otherwise requires, the words "hereof", "hereby" and "herein" and words of
similar meaning when used in any such agreement or instrument refer to such
agreement or instrument in its entirety and not to any particular Article,
Section or provision of such agreement or instrument. Any reference to an
Operative Document shall include such Operative Document as amended or
supplemented from time to time in accordance with the provisions thereof.
Section 2.11 Official Language. The official language of any agreement
-----------------
incorporating these Rules of Construction and Documentary Conventions is the
English language only, which language shall be controlling in all respects, and
all versions of any such agreement in any other language shall not be binding on
the parties thereto or nor shall such other versions be admissible in any legal
proceeding, including arbitration, brought under such agreement. All
communications and notices to be made or given pursuant to any such agreement
shall be in the English language.
Section 2.12 Governing Law. Any agreement incorporating these Rules of
-------------
Construction and Documentary Conventions shall be governed and construed as to
all matters
10
including validity, construction and performance by and under the substantive
laws of the State of California, unless such agreement expressly provides
otherwise.
Section 2.13 Waiver of Jury Trial and Certain Damages. Each party to any
----------------------------------------
Operative Document incorporating these Rules of Construction and Documentary
Conventions waives, to the fullest extent permitted by applicable law, (i) any
right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to any Operative Document and (ii) absent
fraud, any right it may have to receive damages or indemnification from any
other party to any Operative Document in respect of any act, omission or event
relating to such Operative Document or the transactions contemplated by the
Operative Documents based on any theory of liability for any special, indirect,
consequential or punitive damages. Each party to any such agreement or
instrument (x) certifies that no representative, agent or attorney of another
party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce the foregoing waiver and (y)
acknowledges that it has been induced to enter into such agreement or instrument
by, among other things, the mutual waivers and certifications set forth above in
this Section 2.13.
Section 2.14 Arbitration. Each party to any agreement or instrument
-----------
incorporating these Rules of Construction and Documentary Conventions hereby
agrees to adhere to the dispute resolution procedures described in Section 10.03
of the New Master Agreement with respect to any disputes, grievances or actions
arising thereunder.
Section 2.15 Notices. All notices and other communications to be given to
-------
any party under any agreement or instrument incorporating these Rules of
Construction and Documentary Conventions 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:
SanDisk Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President and CEO
11
With a copy to:
SanDisk Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Vice President and General Counsel
(b) If to Toshiba:
Toshiba Corporation
Semiconductor Company
1-1 ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Facsimile: 011 81 3 5444 9339
Attention: Vice President
With a copy to:
Toshiba Corporation
Semiconductor Company
Legal Affairs and Contracts Division
1-1 ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Facsimile: 011-81-3-5444-9342
Attention: General Manager
(c) If to FVC-Japan:
FlashVision, Ltd.
800 Yamanoisshikicho,
Yokkaichi, Mie, Japan
Attention: President and CEO
12
With a copy to:
SanDisk Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Manager, NAND Division
And
Toshiba Corporation
Semiconductor Company
Legal Affairs and Contracts Division
1-1 ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Facsimile: 011-81-3-5444-9342
Attention: General Manager
Section 2.16 Definitions. The definitions set forth in Article I of this
-----------
Appendix A shall apply to this Article II.
13