{"id":40841,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/mutual-contribution-and-environmental-indemnification-agreement.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"mutual-contribution-and-environmental-indemnification-agreement","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/corporate\/mutual-contribution-and-environmental-indemnification-agreement.html","title":{"rendered":"Mutual Contribution and Environmental Indemnification Agreement – SanDisk Corp. and Toshiba Corp."},"content":{"rendered":"

FLASH FORWARD MUTUAL CONTRIBUTION<\/strong><\/p>\n

\n

AND ENVIRONMENTAL INDEMNIFICATION AGREEMENT<\/strong>\n<\/p>\n

\n<\/p>\n

This FLASH FORWARD MUTUAL CONTRIBUTION AND ENVIRONMENTAL INDEMNIFICATION
\nAGREEMENT, dated as of July 13, 2010 (this “Agreement<\/u>“), is entered into
\nby and among, on one side, Toshiba Corporation, a Japanese corporation
\n(“Toshiba<\/u>“), and, on the other side, SanDisk Flash B.V., a Netherlands
\ncompany (“SanDisk Entity<\/u>“, and together with Toshiba, the
\n“Parties<\/u>“).<\/p>\n<\/p>\n

RECITALS<\/p>\n

\n

WHEREAS, Toshiba, SanDisk Corporation and SanDisk (Cayman) Limited, a company
\norganized under the laws of the Cayman Islands, are parties to that certain
\nMutual Contribution and Environmental Indemnification Agreement, dated as of
\nSeptember 10, 2004, setting forth the terms and conditions relating to
\nenvironmental issues that arise out of the manufacture of Y3 NAND Flash Memory
\nProducts manufactured at the Y3 Facility;<\/p>\n<\/p>\n

WHEREAS, Toshiba, SanDisk Corporation and SanDisk (Ireland) Limited, a
\ncompany organized under the laws of the Republic of Ireland, are parties to that
\ncertain Mutual Contribution and Environmental Indemnification Agreement, dated
\nas of July 7, 2006, as amended by that certain JVRA, dated as of January 29,
\n2009, setting forth the terms and conditions relating to environmental issues
\nthat arise out of the manufacture of Y4 NAND Flash Memory Products manufactured
\nat the Y4 Facility;<\/p>\n<\/p>\n

WHEREAS, Toshiba, SanDisk Entity and SanDisk Corporation are parties to that
\ncertain Flash Forward Master Agreement, dated as of the date hereof (the “FF
\nMaster Agreement<\/u>“);<\/p>\n<\/p>\n

WHEREAS, pursuant to the terms of the FF Master Agreement and other FF
\nOperative Documents, Flash Forward, Ltd., a Japanese godo kaisha<\/em> (the
\n“Company<\/u>“), will have Y5 NAND Flash Memory Products and other products
\nmanufactured at the Y5 Facility; and<\/p>\n<\/p>\n

WHEREAS, Toshiba and SanDisk Entity have agreed to mutually contribute to,
\nand indemnify each other and the Company for, environmental remediation costs or
\nliability resulting from the Y5 Facility manufacturing operations as set forth
\nbelow.<\/p>\n<\/p>\n

NOW, THEREFORE, the Parties agree as follows:<\/p>\n<\/p>\n\n\n\n\n
\n

1. <\/strong><\/p>\n<\/td>\n

\n

Definitions and Interpretation.<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

1.1<\/p>\n<\/td>\n

\n

FF Master Agreement<\/u>. Appendix A<\/u> to the FF Master Agreement is
\nhereby incorporated into this Agreement. Capitalized terms used but not defined
\nin this Agreement shall have the meanings given to them in Appendix A<\/u>. If
\nany capitalized term used in this Agreement is not defined herein or in Appendix
\nA, it shall have the meaning assigned to it in the FF Master Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

1.2<\/p>\n<\/td>\n

\n

Definitions<\/u>. The following terms used in this Agreement shall have the
\nfollowing respective meanings:<\/p>\n<\/td>\n<\/tr>\n

\n

(a)<\/p>\n<\/td>\n

\n

“Environmental Costs<\/u>” means any and all costs, expenses or liability
\n(including claims by third parties or any Governmental Authority) attributable
\nto any contamination from the release or discharge of Hazardous Substances
\nresulting from, arising out of or otherwise by virtue of the construction or
\noperation of the Y5 Facility or Other Y5 Facilities from the Closing until the
\nFF Termination Date, including any and all costs to investigate, remove or
\nremediate any release of Hazardous Substances or otherwise reasonably necessary
\nto assure that the Company and the Y5 Facility and Other Y5 Facilities are and
\nwill (until the FF Termination Date) remain in compliance with then applicable
\nEnvironmental Laws.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

1<\/p>\n

\n

\n<\/p>\n

\n

\n\n\n\n\n
\n

(b)<\/p>\n<\/td>\n

\n

“Environmental Laws<\/u>” means all Applicable Laws in Japan, including,
\nbut not limited to, the Soil Contamination Control Law (Dojyouosen Taisaku
\nHo, <\/em>Law No. 53 of 2002), now or hereafter in effect relating to the
\nprotection of human health, safety, and the environment from emissions,
\ndischarges, releases or threatened releases of pollutants, contaminants
\n(chemical or industrial), toxic or Hazardous Substances or wastes into the
\nenvironment (including, ambient air, soil, surface water, ground water,
\nwetlands, land or subsurface strata), or otherwise relating to the manufacture,
\nprocessing, distribution, use, treatment, storage, disposal, transport or
\nhandling or investigation or remediation of pollutants, contaminants, chemicals
\nor industrial, toxic or Hazardous Substances or wastes.<\/p>\n<\/td>\n<\/tr>\n

\n

(c)<\/p>\n<\/td>\n

\n

“Hazardous Substances<\/u>” means petroleum, petroleum hydrocarbons or
\npetroleum products, petroleum by-products, radioactive materials, asbestos or
\nasbestos-containing materials, pesticides, radon, urea formaldehyde, lead or
\nlead-containing materials, polychlorinated biphenyls; and any other chemicals,
\nmaterials, substances or wastes in any amount or concentration which are now or
\nhereafter become defined as or included in the definition of “hazardous
\nsubstances,” “hazardous materials,” “hazardous wastes,” “extremely hazardous
\nwastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,”
\n“pollutants,” “regulated substances,” “solid wastes,” or “contaminants” or words
\nof similar import, under any Environmental Law.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(d)<\/p>\n<\/td>\n

\n

“Share<\/u>” means each of SanDisk Entity153s and Toshiba153s respective
\nliability for Environmental Costs, which shall be measured by and shared in
\nproportion to (i) each Party153s Y5 Capacity Ratio (as may be adjusted pursuant to
\nthe FF Master Agreement) within the Y5 Facility and Other Y5 Facilities at the
\ntime of the applicable contamination or release, if determinable, or (ii) if the
\ntime of such contamination or release is not determinable, each of Toshiba153s and
\nSanDisk153s cumulative Equivalent Lot output from the commencement of production
\nat the Y5 Facility and Other Y5 Facilities until the date the applicable
\ncontamination or release is discovered.<\/p>\n<\/td>\n<\/tr>\n

\n

2. <\/strong><\/p>\n<\/td>\n

\n

Environmental Investigations.<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

2.1<\/p>\n<\/td>\n

\n

Environmental Consultants<\/u>. As of the date hereof, the Parties
\nacknowledge that neither Party has engaged an environmental consultant to
\ninvestigate, or prepared or obtained an environmental report with respect to,
\nthe Y5 Facility or Other Y5 Facility (as defined below). Subject to Section 2.2,
\neach of SanDisk and Toshiba will engage an environmental consulting company to
\nconduct an environmental investigation on its behalf as to the surface and
\nsubsurface conditions existing on or immediately adjacent to the proposed site
\nof the Y5 Facility and other new land to be acquired or leased by Toshiba for
\nthe purpose of the Y5 Facility153s operation (such new land to be acquired or
\nleased, the “Other Y5 Facility<\/u>“) (each a “Consultant<\/u>” and the
\nConsultant engaged by SanDisk, the “SanDisk Consultant<\/u>” and the
\nConsultant engaged by Toshiba, the “Toshiba Consultant<\/u>“). SanDisk shall
\nbe solely responsible for the fees and costs charged by the SanDisk Consultant
\nand shall indemnify and hold harmless Toshiba and the Company from any claims
\nfor compensation or damages made by the SanDisk Consultant. Toshiba shall be
\nsolely responsible for the fees and costs charged by the Toshiba Consultant and
\nshall indemnify and hold harmless SanDisk and the Company from any claims for
\ncompensation or damages made by the Toshiba Consultant; provided<\/em>,
\nhowever<\/em>, that fees and costs incurred by the Toshiba Consultant after the
\nClosing and other than in connection with finalizing the Y5 Baseline
\nEnvironmental Report (as defined below) shall be chargeable to and payable by
\nthe Company, which fees and costs shall be chargeable to and payable by the
\nParties through wafer price increases.<\/p>\n<\/td>\n<\/tr>\n

\n

2.2<\/p>\n<\/td>\n

\n

Scope of Review<\/u>. To the extent reasonably practicable and subject to
\nToshiba153s consent, which shall not be unreasonably withheld, each Consultant
\nwill perform the activities customarily associated with Phase I
\n(tochirireki chosa<\/em>) and Phase II (osen jokyo kakunin chosa<\/em>)
\nstudies. The Consultant(s) will perform Phase I and, if performed, Phase II
\nstudies at the site of the Y5 Facility (and immediately adjacent thereto) prior
\nto the start of Y5 Facility operation (scheduled to begin April 2011);
\nprovided<\/em>, however<\/em>, that the Parties acknowledge that the
\nConsultants may not be able to perform such studies with respect to some
\nportions or all of the Y5 Facility and Other Y5 Facilities (any such portion, an
\n“Untested Area<\/u>“), and that access by the Consultants to the proposed site
\nof the Y5 Facility and Other Y5 Facilities will be only to the extent necessary
\nto conduct the Phase I and Phase II studies and subject to Toshiba153s prior
\nconsent, which shall not be unreasonably withheld.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

2<\/p>\n

\n

\n<\/p>\n

\n

\n\n\n\n\n
\n

2.3<\/p>\n<\/td>\n

\n

Information from Monitoring Activities<\/u>. Toshiba shall share, or cause
\nto be shared, with SanDisk and, upon SanDisk153s request, the SanDisk Consultant,
\nthe results of any monitoring activities conducted by Toshiba or its Affiliates
\nwith respect to the surface and subsurface conditions on the proposed site of
\nthe Y5 Facility and Other Y5 Facilities on or after the Effective Date and until
\nthe FF Termination Date; provided<\/em> that if as of the FF Termination Date
\nany claims have been made against SanDisk with respect to its indemnification
\nobligations hereunder, on SanDisk153s request, Toshiba shall continue to provide
\nSanDisk the results of any monitoring activities to the extent such results may
\naffect the evaluation or determination of alleged liability of SanDisk
\nhereunder. The Parties acknowledge and agree that any such information
\nconcerning the Y5 Facility and Other Y5 Facilities shall be considered
\nConfidential Information of the Company and any such information concerning the
\nYokkaichi Facility (including the Y5 Facility and Other Y5 Facilities) shall be
\nconsidered Confidential Information of Toshiba.<\/p>\n<\/td>\n<\/tr>\n

\n

3. <\/strong><\/p>\n<\/td>\n

\n

Baseline Environmental Report.<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Each Party shall direct the Consultant retained by it to (i) provide the
\nother Consultant and other Party with its initial environmental report on the Y5
\nFacility and Other Y5 Facilities and (ii) discuss the reports in good faith with
\nthe other Consultant with the intent of the Parties and their Consultants
\nagreeing upon a single, combined report (the “Y5 Baseline Environmental
\nReport<\/u>“). If Toshiba, SanDisk and the Consultants are unable to agree upon a
\nsingle report within sixty (60) days after the start of Y5 Facility operations,
\nthen the draft reports of both Consultants (or combined report indicating areas
\nof disagreement) shall collectively be considered to be the Y5 Baseline
\nEnvironmental Report.<\/p>\n<\/p>\n\n\n\n\n
\n

4. <\/strong><\/p>\n<\/td>\n

\n

Environmental Compliance.<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

4.1<\/p>\n<\/td>\n

\n

Compliance<\/u>. The Parties confirm their intent that the Y5 Facility and
\nOther Y5 Facilities and all operations of the Company be maintained in
\ncompliance with all Environmental Laws, including by having remedial measures
\ntaken as required by any Governmental Authority or otherwise reasonably
\nnecessary to ensure that the Y5 Facility and Other Y5 Facilities and all
\noperations of the Company will remain in compliance with all Environmental Laws.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

4.2<\/p>\n<\/td>\n

\n

Notice<\/u>. Each Party shall promptly notify the other of any
\ncircumstances of which it becomes aware that require or could reasonably be
\nexpected to require remediation or other actions to ensure that the Company and
\nits operations are and will be maintained in compliance with all Environmental
\nLaws and to minimize the aggregate Covered Environmental Costs (as defined
\nbelow) that may be incurred. Upon any such notice being given and received, the
\nParties shall promptly discuss in good faith and seek to agree upon the measures
\nto be taken in response to such circumstances. Pending their agreement, nothing
\nshall prevent or limit Toshiba, acting in good faith on its own initiative or
\nupon SanDisk153s reasonable request, from investigating the circumstances of any
\nreleases of Hazardous Substances or taking steps reasonably appropriate to limit
\nor prevent ongoing releases, to limit the effects of a release, or to prevent or
\nlimit any exposure or damage resulting from, arising out of or otherwise by
\nvirtue of a release, including taking immediate or urgent steps as appropriate
\nin light of the circumstances then known, provided<\/em>, that nothing in
\nthis paragraph shall require either Party to take any step except as required by
\napplicable Environmental Law.<\/p>\n<\/td>\n<\/tr>\n

\n

5. <\/strong><\/p>\n<\/td>\n

\n

Indemnification Obligations.<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

5.1<\/p>\n<\/td>\n

\n

Mutual Responsibility and Indemnity for Environmental Costs<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

(a)<\/p>\n<\/td>\n

\n

Subject to Section 1425.1(b), each of SanDisk and Toshiba shall:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(1)<\/p>\n<\/td>\n

\n

be responsible for bearing its Share of Environmental Costs; and<\/p>\n<\/td>\n<\/tr>\n

\n

(2)<\/p>\n<\/td>\n

\n

indemnify, defend and hold harmless the other Party and the Company (and
\ntheir respective Indemnified Parties) for its Share of such Environmental Costs.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

3<\/p>\n

\n

\n<\/p>\n

\n

\n\n\n\n\n\n
\n

(b)<\/p>\n<\/td>\n

\n

Each of SanDisk153s and Toshiba153s responsibility for its Share of Environmental
\nCosts under Section
\n1425.1(a)<\/a>
\nshall be subject to each of the following limitations (Environmental Costs not
\nexcluded from the one or both Parties153 responsibility under this Section
\n1425.1(b), “Covered Environmental Costs<\/u>“):<\/p>\n<\/td>\n<\/tr>\n

\n

(1)<\/p>\n<\/td>\n

\n

Except as provided in Section 5.2(a), neither Party shall be responsible for
\nconditions identified in the Y5 Baseline Environmental Report, including
\nresponsibility for any Environmental Costs resulting from, arising out of or
\notherwise by virtue of remediation or removal of pre-existing conditions.
\nHowever, if remedial measures otherwise taken in accordance with this Agreement
\nincidentally result in remediation or removal of conditions not resulting from
\noperation of the Y5 Facility or Other Y5 Facilities, only the Environmental
\nCosts paid for the remedial measures taken with respect to the Y5 Facility or
\nOther Y5 Facilities, as applicable (including amounts paid for remedial measures
\ntaken with respect to the Y5 Facility or Other Y5 Facilities that return the Y5
\nFacility or Other Y5 Facilities to a condition better than that identified in
\nthe Y5 Baseline Environmental Report) shall constitute Covered Environmental
\nCosts.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(2)<\/p>\n<\/td>\n

\n

Neither Party shall be responsible for Environmental Costs to the extent such
\nEnvironmental Costs are incurred as a result of the willful misconduct of
\nemployees, agents or representatives of the other Party.<\/p>\n<\/td>\n<\/tr>\n

\n

(3)<\/p>\n<\/td>\n

\n

Environmental Costs incurred for remediation shall only constitute Covered
\nEnvironmental Costs to the extent reasonably necessary to ensure that the
\nCompany fulfills the Prudent Operator Standard. The “Prudent Operator
\nStandard<\/u>” means taking all such remedial measures (i) as are required to be
\nin compliance with all then effective Environmental Laws, (ii) that have been
\nrequired by a Governmental Authority or (iii) that a prudent operator of a
\nsimilar facility would then take or begin to take to ensure that its continuing
\noperations and facilities will remain in compliance with then effective
\nEnvironmental Laws and with Environmental Laws as they are then scheduled to go
\ninto effect or are anticipated to be changed in the next ****.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n
\n

(4)<\/p>\n<\/td>\n

\n

No Environmental Costs shall constitute Covered Environmental Costs with
\nrespect to either Party to the extent such Party153s liability limit under Section
\n1425.5<\/a>
\nhas been exceeded.<\/p>\n<\/td>\n<\/tr>\n

\n

(c)<\/p>\n<\/td>\n

\n

If the Parties are not able to agree on whether any given Environmental Costs
\nconstitute Covered Environmental Costs (including, following the completion of
\nthe sixty (60)-day process set forth in Section
\n1428.5<\/a>,
\nas to whether remediation is necessary to fulfill the Prudent Operator
\nStandard), such dispute shall be resolved by the mediation and arbitration
\nprovisions of Appendix A.<\/u><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

5.2<\/p>\n<\/td>\n

\n

Toshiba Indemnity<\/u>. Toshiba shall indemnify SanDisk and its Indemnified
\nParties from any environmental costs, expenses or liabilities of SanDisk
\nresulting from, arising out of or otherwise by virtue of:<\/p>\n<\/td>\n<\/tr>\n

\n

(a)<\/p>\n<\/td>\n

\n

environmental conditions existing at the Yokkaichi Facility (including the Y5
\nFacility or Other Y5 Facilities but excluding conditions from operations of the
\nY3 Facility and Y4 Facility) prior to the Closing;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(b)<\/p>\n<\/td>\n

\n

the actions or omissions of Toshiba, its Affiliates or its or their
\nrespective employees, directors, agents or representatives (other than in
\nconnection with the operation of the Y5 Facility or Other Y5 Facilities), for
\nwhich Toshiba shall be solely responsible; provided however<\/em>, that
\nToshiba shall have no indemnification obligation under this Section
\n1425.2(b)<\/a>
\nto the extent that any Environmental Costs result from, arise out of or
\notherwise occur by virtue of actions or omissions of SanDisk, its Affiliates or
\nits or their respective employees, directors, agents or representatives, for
\nwhich SanDisk shall be solely responsible; or<\/p>\n<\/td>\n<\/tr>\n

\n

(c)<\/p>\n<\/td>\n

\n

from the operations of the Y5 Facility or Other Y5 Facilities after the FF
\nTermination Date (unless SanDisk is the Buyer for purposes of Section
\n1425.3<\/a>,
\nin which case this Section
\n1425.2(c)<\/a>
\nshall not apply).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

5.3<\/p>\n<\/td>\n

\n

Buyer Indemnity<\/u>. If either of Toshiba or SanDisk (as “Buyer<\/u>“)
\nacquires the interests of the other (as “Seller<\/u>“) in the Company, the Y5
\nFacility and Other Y5 Facilities (whether through acquiring its FF Interests, by
\nan asset sale and liquidation or by other means), then, subject to Section
\n1427<\/a>,
\nBuyer shall indemnify Seller and its Indemnified Parties from any environmental
\ncosts, expenses or liability of Seller resulting from, arising out of or
\notherwise by virtue of, operations of the Y5 Facility and Other Y5 Facilities
\nafter the FF Termination Date. However, Buyer shall have no indemnification
\nobligation under this Section
\n1425.3<\/a>
\nto the extent that any Seller environmental costs, expenses or liabilities
\nresult from, arise out of or otherwise by virtue of actions or omissions of
\nSeller, its Affiliates or its or their respective employees, directors, agents
\nor representatives.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

4<\/p>\n

\n

\n<\/p>\n

\n

\n\n\n\n\n
\n

5.4<\/p>\n<\/td>\n

\n

Control by Indemnifying Party<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

(a)<\/p>\n<\/td>\n

\n

The indemnifying Party under Section
\n1425.2<\/a>
\nor
\n1425.3<\/a>
\nshall have the sole right to control the defense of any claim and the method and
\nscope of remediation with respect to which the indemnified Party seeks
\nindemnification, provided that the indemnifying Party shall not enter into any
\nsettlement that would materially affect the operations of the indemnified Party
\nat the Yokkaichi Facility unless the indemnified Party has granted its prior
\nwritten consent.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(b)<\/p>\n<\/td>\n

\n

The Parties shall cooperate in good faith to seek to agree upon the means of
\njoint defense of any third party claim giving rise to Covered Environmental
\nCosts (with any disagreement to be resolved by the mediation and arbitration
\nprovisions set forth in Appendix A<\/u>).<\/p>\n<\/td>\n<\/tr>\n

\n

5.5 <\/em><\/strong><\/p>\n<\/td>\n

\n

Liability Limit<\/u>. Neither Party153s aggregate liability for Covered
\nEnvironmental Costs or indemnification obligations under Sections
\n1425.1<\/a>,
\n1425.2<\/a>
\nand
\n1425.3<\/a>
\nshall exceed the greater of (a) US$5 million or (b) the aggregate (i) purchase
\nprice of the products purchased by such Party from Flash Forward and (ii)
\ntransfer price of the products produced for such Party at the Y5 Facility (which
\nfor purposes of computing this aggregate shall be deemed to be no less than cost
\nplus one percent (1%)), during the six years prior to the date of the applicable
\nclaim (or in the case of liability arising after the FF Termination Date, for
\nthe six year period immediately preceding the FF Terminate Date).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

6. <\/strong><\/p>\n<\/td>\n

\n

Satisfaction of Indemnification Obligations.<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

6.1<\/p>\n<\/td>\n

\n

Prompt Payment<\/u>. Each Party shall promptly pay its Share of any Covered
\nEnvironmental Costs paid by the Company or by the other Party in excess of its
\nobligation to bear the Covered Environmental Costs. In the event that any
\nCovered Environmental Costs are incurred by the Company or disproportionately by
\na Party in excess of its Share, the Company or such Party, as applicable, shall
\ninvoice the other Party or Parties directly for the balance of such Covered
\nEnvironmental Costs to the extent of such Party153s Share in accordance with
\nSection
\n1425.1(a)<\/a>;
\nprovided<\/em>, however<\/em>, that upon the mutual agreement of the
\nParties, each Party153s respective Share of Covered Environmental Costs may
\notherwise be paid via adjustments to the purchase prices they pay to the Company
\nfor Y5 NAND Flash Memory Products, pursuant to the applicable Master Operative
\nDocuments. The Parties shall discuss in good faith the means and the timing of
\npayment of their respective Shares of Covered Environmental Costs, taking into
\naccount when the Covered Environmental Costs are paid by the Company or by the
\nother Party and the amount of such Covered Environmental Costs. To the extent
\nthe obligations of either Party will not be timely or fully retired by wafer
\nprice increases, the Parties shall directly pay their respective Shares of
\nCovered Environmental Costs.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

6.2<\/p>\n<\/td>\n

\n

Action in the Name of the Company<\/u>. Either Party making a demand for
\nindemnification or contribution pursuant to this Agreement shall be entitled,
\nnotwithstanding anything to the contrary in the FF Master Agreement or the FF
\nOperating Agreement, to cause the Company to make such demand, if doing so is
\nappropriate to fulfill the intent of this Section
\n1426<\/a>
\n(e.g.<\/em>, if the Company has borne the Covered Environmental Costs and the
\nclaiming Party has already reimbursed the Company for its Share of the same).\n<\/p>\n<\/td>\n<\/tr>\n

\n

7. <\/strong><\/p>\n<\/td>\n

\n

Post Termination Environmental Costs and Exit Environmental
\nReport.<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

7.1<\/p>\n<\/td>\n

\n

Environmental Costs Paid Post Termination<\/u>. Except as otherwise set
\nforth in this Section
\n1427<\/a>,
\nthe Parties153 obligations under Section
\n1425.1<\/a>
\nshall expire as of the FF Termination Date.<\/p>\n<\/td>\n<\/tr>\n

\n

(a)<\/p>\n<\/td>\n

\n

In respect of Environmental Costs for remediation, to the extent the Exit
\nEnvironmental Report (as defined below) identifies contamination at the Y5
\nFacility or Other Y5 Facilities and a good faith claim concerning shared
\nresponsibility for such remediation costs is made by one of the Parties before
\nthe FF Termination Date, any obligations of the Parties under Section
\n1425.1(a)<\/a>
\n(subject to Section 1425.1(b)) in respect of remediation of such contamination
\nshall survive the FF Termination Date, but only for so long and to the extent
\nthe Prudent Operator Standard continues to require remediation in respect of
\nsuch contamination.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

(b)<\/p>\n<\/td>\n

\n

In respect of Covered Environmental Costs resulting from a bona fide third
\nparty claim, the Parties obligations under Section
\n1425.1(a)<\/a>
\n(subject to Section 1425.1(b)) shall survive ****.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

5<\/p>\n

\n

\n<\/p>\n

\n

\n\n\n\n\n
\n

7.2<\/p>\n<\/td>\n

\n

Exit Environmental Report<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

(a)<\/p>\n<\/td>\n

\n

Promptly upon (i) the exercise by either Party of any right under the FF
\nOperating Agreement and\/or the FF Master Agreement to acquire the FF Interests
\nof the other Party, to sell its FF Interests to the other Party or to cause the
\ndissolution of the Company, or (ii) entering into any letter of intent or
\nagreement for the sale of the Y5 Facility and Other Y5 Facilities or all or
\nsubstantially all of the assets (leased or owned) of the Company, the Parties
\nshall engage an environmental consultant from an internationally recognized
\nenvironmental investigation firm that has experience in Japan and that is
\nmutually acceptable to the Parties (the “Exit Consultant<\/u>“) to conduct and
\ncomplete Phase I and Phase II investigations of the Y5 Facility and Other Y5
\nFacilities as of a date as close as practicable to but in any event in advance
\nof the FF Termination Date. Toshiba shall facilitate the Exit Consultant153s
\naccess to the Yokkaichi Facility as reasonably necessary to conduct such
\ninvestigations.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(b)<\/p>\n<\/td>\n

\n

The Exit Consultant shall be directed to prepare a draft report based on its
\nPhase I and Phase II investigations and to deliver the draft report to SanDisk
\nand Toshiba (and if either so directs, to any environmental consultant either
\nParty has engaged for its own account). SanDisk and Toshiba, directly and\/or
\nthrough their respective consultants, shall have sixty (60) days from receipt to
\ncomment on the draft report (any such comment shall be delivered both to the
\nExit Consultant and the other Party and any consultant it engages for its own
\naccount). The Exit Consultant shall then be directed to issue to the Parties its
\nfinal report (the “Exit Environmental Report<\/u>“), which shall be final and
\nbinding on the Parties.<\/p>\n<\/td>\n<\/tr>\n

\n

(c)<\/p>\n<\/td>\n

\n

Environmental Costs arising from the Exit Environmental Report process shall
\nbe payable as provided in Article
\n1425<\/a>
\nand Section
\n1426.1<\/a>.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

(d)<\/p>\n<\/td>\n

\n

Unless all payments due for Covered Environmental Costs in connection with
\nthe Exit Environmental Report process have been made before the FF Termination
\nDate, the Buyer shall be entitled to withhold from the purchase price payable
\n(or distributable) to Seller and place into third party escrow up to **** of
\nsuch purchase price (but not to exceed the balance of Seller153s liability limit
\nin Section
\n1425.5<\/a>),
\nwhich shall serve as security for Seller153s responsibility for Covered
\nEnvironmental Costs determined pursuant to this Section
\n1427<\/a>.\n<\/p>\n<\/td>\n<\/tr>\n

\n

7.3<\/p>\n<\/td>\n

\n

**** [omitted]<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

8. <\/strong><\/p>\n<\/td>\n

\n

Miscellaneous.<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

8.1<\/p>\n<\/td>\n

\n

Survival<\/u>. Sections
\n1425<\/a>,
\n1426<\/a>,
\n1427<\/a>
\nand
\n1428<\/a>
\nand Appendix A<\/u> shall survive the termination or expiration of this
\nAgreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

8.2<\/p>\n<\/td>\n

\n

Entire Agreement<\/u>. This Agreement, together with any exhibits,
\nschedules, appendices and attachments thereto, constitutes the agreement of the
\nParties to this Agreement with respect to the subject matter hereof and
\nsupersedes all prior written and oral agreements and understandings with respect
\nto such subject matter.<\/p>\n<\/td>\n<\/tr>\n

\n

8.3<\/p>\n<\/td>\n

\n

Effective Time of Agreement<\/u>. This Agreement shall be effective from
\nthe date first written above.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6<\/p>\n

\n<\/p>\n

\n

\n\n\n\n\n
\n

8.4<\/p>\n<\/td>\n

\n

Governing Law<\/u>. This Agreement shall be governed and construed as to
\nall matters including validity, construction and performance by and under the
\nsubstantive laws of Japan.<\/p>\n<\/td>\n<\/tr>\n

\n

8.5<\/p>\n<\/td>\n

\n

Dispute Concerning Prudent Operator Standard or Attribution of
\nEnvironmental Costs<\/u>. Notwithstanding anything to the contrary in Section 2.5
\nof Appendix A<\/u>, if the Parties are not able to agree upon (i) what
\napplication of the Prudent Operator Standard requires with respect to any given
\nproposed remediation hereunder or (ii) the attribution of Hazardous Substances
\nfor purposes of Section
\n1427.3<\/a>,
\nat the request of either of them they shall engage a neutral and independent
\nenvironmental consultant acceptable to both Parties (the “Independent
\nConsultant<\/u>“) to facilitate resolution of such dispute. The Parties (and at
\nthe option of each of them their own environmental consultants) shall meet and
\ndiscuss the matter with the Independent Consultant and seek in good faith to
\nresolve the dispute. If the Parties are not able to resolve the dispute within
\nsixty (60) days after initiating discussions with the Independent Consultant,
\nthen at any time after such sixty (60) day period either Party may bring an
\narbitration claim pursuant to Section 2.5 of Appendix A<\/u> to resolve the
\ndispute.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.6<\/p>\n<\/td>\n

\n

Assignment<\/u>. Neither party hereto may transfer this Agreement or any of
\nits rights hereunder (except for any transfer to an Affiliate or in connection
\nwith a merger, consolidation or sale of all or substantially all the assets or
\nthe outstanding securities of such party, which transfer shall not require any
\nconsent of the other party) without the prior written consent of the other party
\nhereto (which consent may be withheld in such other party153s sole discretion),
\nand any such purported transfer without such consent shall be void.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[<\/strong>REMAINDER OF PAGE INTENTIONALLY LEFT
\nBLANK]<\/strong><\/p>\n

\n

7<\/p>\n

\n

\n<\/p>\n

\n

\n

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
\ndelivered as of the date and year first above written.<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

TOSHIBA CORPORATION<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

By:<\/p>\n<\/td>\n

\n

\/s\/ Kiyoshi Kobayashi<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n

\n

Kiyoshi Kobayashi<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n

\n

President and CEO<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Semiconductor Company<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Corporate Senior Vice President<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

SANDISK FLASH B.V.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

By:<\/p>\n<\/td>\n

\n

\/s\/ Sanjay Mehrotra<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n

\n

Sanjay Mehrotra<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n

\n

Director<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[<\/strong>Signature Page to Flash Forward Mutual
\nContribution and Environmental Indemnification Agreement<\/p>\n

\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8752],"corporate_contracts_industries":[9508],"corporate_contracts_types":[9553,9557],"class_list":["post-40841","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sandisk-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-corporate","corporate_contracts_types-corporate__indemn"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40841","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40841"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40841"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40841"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40841"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}