{"id":42285,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/equipment-purchase-agreement-sandisk-corp-and-toshiba-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"equipment-purchase-agreement-sandisk-corp-and-toshiba-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/equipment-purchase-agreement-sandisk-corp-and-toshiba-corp.html","title":{"rendered":"Equipment Purchase Agreement – SanDisk Corp. and Toshiba Corp. and Flash Alliance Ltd."},"content":{"rendered":"<\/p>\n

EQUIPMENT PURCHASE AGREEMENT<\/p>\n

\n

Dated as of January 29, 2009<\/p>\n

\n

by and among<\/p>\n

\n

TOSHIBA CORPORATION,<\/p>\n

\n

SANDISK (IRELAND) LIMITED,<\/p>\n

\n

SANDISK (CAYMAN) LIMITED,<\/p>\n

\n

SANDISK CORPORATION,<\/p>\n

\n

FLASH PARTNERS LIMITED,<\/p>\n

\n

and<\/p>\n

\n

FLASH ALLIANCE LIMITED<\/p>\n

\n<\/p>\n<\/p>\n

\n

TABLE OF CONTENTS<\/strong><\/p>\n

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

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

\n

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

\n

Definitions and Interpretation<\/p>\n<\/td>\n

\n

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

\n

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

\n

The Transaction<\/p>\n<\/td>\n

\n

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

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

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

\n

Purchase Price; Closing<\/p>\n<\/td>\n

\n

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

\n

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

\n

Representations and Warranties of Each of the Parties<\/p>\n<\/td>\n

\n

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

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

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

\n

Representations and Warranties of the Sellers<\/p>\n<\/td>\n

\n

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

\n

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

\n

Covenants<\/p>\n<\/td>\n

\n

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

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

\n

Conditions Precedent to the Sellers153 Obligations at the First Closing<\/p>\n<\/td>\n

\n

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

\n

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

\n

Conditions Precedent to Toshiba153s Obligations at the First Closing<\/p>\n<\/td>\n

\n

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

9.<\/p>\n<\/td>\n

\n

Conditions Precedent to the Subsequent Closings<\/p>\n<\/td>\n

\n

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

\n

10.<\/p>\n<\/td>\n

\n

Indemnification<\/p>\n<\/td>\n

\n

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

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

11.<\/p>\n<\/td>\n

\n

Termination of the Agreement<\/p>\n<\/td>\n

\n

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

\n

12.<\/p>\n<\/td>\n

\n

General Provisions<\/p>\n<\/td>\n

\n

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

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

i<\/p>\n<\/td>\n

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

This EQUIPMENT PURCHASE AGREEMENT <\/strong>(this “Agreement<\/u>“)
\ndated as of January 29, 2009, is entered into by and among TOSHIBA CORPORATION,
\na Japanese corporation (“Toshiba<\/u>“), SANDISK (CAYMAN) LIMITED, a company
\norganized under the laws of the Cayman Islands (“SanDisk Cayman<\/u>“),
\nSANDISK (IRELAND) LIMITED, a company organized under the laws of the Republic of
\nIreland (“SanDisk Ireland<\/u>“), SANDISK CORPORATION, a Delaware corporation
\n(“SanDisk<\/u>” and, together with SanDisk Cayman and SanDisk Ireland, the
\n“SanDisk Parties<\/u>“), FLASH PARTNERS LIMITED, a tokurei<\/em> yugen
\nkaisha<\/em> organized under the laws of Japan (“FP<\/u>“), and FLASH ALLIANCE
\nLIMITED, a tokurei yugen kaisha <\/em>organized under the laws of Japan
\n(“FA<\/u>” and, together with FP, the “Sellers<\/u>” and the Sellers
\ntogether with the SanDisk Parties and Toshiba, the “Parties<\/u>“).<\/p>\n<\/p>\n

WHEREAS, Toshiba and certain SanDisk Parties are each shareholders in FP and
\nFA;<\/p>\n<\/p>\n

WHEREAS, FP owns the machinery, equipment and other tangible assets described
\non attached Schedule 2.1(a)(i)<\/u> and leases the machinery, equipment and
\nother tangible assets described on attached Schedule 2.1(a)(ii)<\/u>;<\/p>\n<\/p>\n

WHEREAS, FA owns the machinery, equipment and other tangible assets described
\non attached Schedule 2.1(b)(i)<\/u> and leases the machinery, equipment and
\nother tangible assets described on attached Schedule 2.1(b)(ii)<\/u>;<\/p>\n<\/p>\n

WHEREAS, Toshiba desires to purchase from the Sellers, and the Sellers desire
\nto sell to Toshiba, such owned equipment and the Sellers153 rights under such
\nleases, and Toshiba is prepared to assume certain obligations and liabilities in
\nconnection therewith, all on the terms and conditions set forth below; and<\/p>\n<\/p>\n

WHEREAS, simultaneous herewith, Toshiba, SanDisk, SanDisk Cayman and SanDisk
\nIreland are entering into a Joint Venture Restructure Agreement (the
\n“JVRA<\/u>“), pursuant to which the parties are amending the Flash Partners
\nMaster Agreement by and among Toshiba, SanDisk and SanDisk Cayman dated
\nSeptember 10, 2004, the Flash Alliance Master Agreement by and among Toshiba,
\nSanDisk, and SanDisk Ireland dated July 7, 2006, and also entering into certain
\nother agreements relevant to the operation of FA and FP, as provided therein;\n<\/p>\n<\/p>\n

NOW, THEREFORE, in consideration of the premises, representations,
\nwarranties, covenants and agreements set forth herein, and for good and valuable
\nconsideration the receipt and sufficiency of which are hereby acknowledged, the
\nSellers, the SanDisk Parties and Toshiba hereby agree as follows:<\/p>\n<\/p>\n

1.<\/strong> Definitions and Interpretation<\/strong><\/p>\n<\/p>\n\n\n\n\n\n\n\n\n
\n

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

\n

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

\n

Term<\/strong><\/p>\n<\/td>\n

\n

Defined In<\/strong><\/p>\n<\/td>\n<\/tr>\n

\n

Action<\/p>\n<\/td>\n

\n

Section 2.3(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Agreement<\/p>\n<\/td>\n

\n

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

\n

Applicable Law<\/p>\n<\/td>\n

\n

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

\n

Assumed Liabilities<\/p>\n<\/td>\n

\n

Section 2.4<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n<\/p>\n

1<\/p>\n

\n

\n<\/p>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

Closing<\/p>\n<\/td>\n

\n

Section 3.2(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Closing Date<\/p>\n<\/td>\n

\n

Section 3.2(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Equipment<\/p>\n<\/td>\n

\n

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

\n

Equipment Leases<\/p>\n<\/td>\n

\n

Section 2.1(b)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Equipment Purchase Closing<\/p>\n<\/td>\n

\n

Section 3.2(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Equipment Transactions<\/p>\n<\/td>\n

\n

Section 3.2(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Excluded Assets<\/p>\n<\/td>\n

\n

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

\n

Excluded Liabilities<\/p>\n<\/td>\n

\n

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

\n

FA<\/p>\n<\/td>\n

\n

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

\n

FA Equipment<\/p>\n<\/td>\n

\n

Section 2.1(b)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FA Leased Equipment<\/p>\n<\/td>\n

\n

Section 2.1(b)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FA Leases<\/p>\n<\/td>\n

\n

Section 2.1(b)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FA Owned Equipment<\/p>\n<\/td>\n

\n

Section 2.1(b)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

FA Purchase Price<\/p>\n<\/td>\n

\n

Section 3.1(a)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FA Purchased Assets<\/p>\n<\/td>\n

\n

Section 2.1(b)<\/p>\n<\/td>\n<\/tr>\n

\n

FP<\/p>\n<\/td>\n

\n

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

\n

FP Equipment<\/p>\n<\/td>\n

\n

Section 2.1(a)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FP Leased Equipment<\/p>\n<\/td>\n

\n

Section 2.1(a)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FP Leases<\/p>\n<\/td>\n

\n

Section 2.1(a)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

FP Owned Equipment<\/p>\n<\/td>\n

\n

Section 2.1(a)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

FP Purchase Price<\/p>\n<\/td>\n

\n

Section 3.1(a)(i)<\/p>\n<\/td>\n<\/tr>\n

\n

FP Purchased Assets<\/p>\n<\/td>\n

\n

Section 2.1(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Governmental Authority<\/p>\n<\/td>\n

\n

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

\n

[***]*<\/p>\n<\/td>\n

\n

Section 10.3<\/p>\n<\/td>\n<\/tr>\n

\n

Indemnifying Party<\/p>\n<\/td>\n

\n

Section 10.1<\/p>\n<\/td>\n<\/tr>\n

\n

JVRA<\/p>\n<\/td>\n

\n

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

\n

Lease Closing<\/p>\n<\/td>\n

\n

Section 3.2(b)<\/p>\n<\/td>\n<\/tr>\n

\n

Lease Transfer Costs<\/p>\n<\/td>\n

\n

Section 3.7(a)<\/p>\n<\/td>\n<\/tr>\n

\n

Leased Equipment<\/p>\n<\/td>\n

\n

Section 2.1(b)(ii)<\/p>\n<\/td>\n<\/tr>\n

\n

Lien<\/p>\n<\/td>\n

\n

Section 4.4<\/p>\n<\/td>\n<\/tr>\n

\n

[***]*<\/p>\n<\/td>\n

\n

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

\n

Material Adverse Effect<\/p>\n<\/td>\n

\n

Section 8.10<\/p>\n<\/td>\n<\/tr>\n

\n

Material Consent<\/p>\n<\/td>\n

\n

Section 6.3<\/p>\n<\/td>\n<\/tr>\n

\n

[***]*<\/p>\n<\/td>\n

\n

Section 3.1<\/p>\n<\/td>\n<\/tr>\n

\n

Owned Equipment<\/p>\n<\/td>\n

\n

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

\n

Party<\/p>\n<\/td>\n

\n

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

\n

Permit<\/p>\n<\/td>\n

\n

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

\n

Person<\/p>\n<\/td>\n

\n

Section 4.4<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

\n

*<\/sup> Indicates that information has been omitted.<\/p>\n<\/p>\n

2<\/p>\n

\n

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

Post-Closing Period<\/p>\n<\/td>\n

\n

Section 3.7(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Pre-Closing Period<\/p>\n<\/td>\n

\n

Section 3.7(d)<\/p>\n<\/td>\n<\/tr>\n

\n

Purchased Assets<\/p>\n<\/td>\n

\n

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

\n

Resolution<\/p>\n<\/td>\n

\n

Section 3.6(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Resolution Period<\/p>\n<\/td>\n

\n

Section 3.6(c)<\/p>\n<\/td>\n<\/tr>\n

\n

SanDisk<\/p>\n<\/td>\n

\n

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

\n

SanDisk Cayman<\/p>\n<\/td>\n

\n

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

\n

SanDisk Ireland<\/p>\n<\/td>\n

\n

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

\n

SanDisk Party<\/p>\n<\/td>\n

\n

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

\n

Seller<\/p>\n<\/td>\n

\n

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

\n

Subsequent Closing<\/p>\n<\/td>\n

\n

Section 3.2(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Subsequent Closing Date<\/p>\n<\/td>\n

\n

Section 3.2(c)<\/p>\n<\/td>\n<\/tr>\n

\n

Tax<\/p>\n<\/td>\n

\n

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

\n

Toshiba<\/p>\n<\/td>\n

\n

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

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

\n

Interpretation<\/u>. Whenever the words “include,” “includes” or
\n“including” are used in this Agreement, they shall be deemed, as the context
\nindicates, to be followed by the words “but (is\/are) not limited to.” Wherever
\nin this Agreement words indicating the plural number appear, such words will be
\nconsidered as words indicating the singular number and vice versa where the
\ncontext indicates the propriety of such use.<\/p>\n<\/td>\n<\/tr>\n

\n

1.3<\/p>\n<\/td>\n

\n

The terms “Y3 Facility<\/u>” and “Y4 Facility<\/u>” as used in this
\nAgreement shall have the meanings assigned to them in the JVRA.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

2.<\/strong> The Transaction<\/strong><\/p>\n<\/p>\n\n\n\n\n
\n

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

\n

Purchased Assets<\/u>. Subject to the terms and conditions of this
\nAgreement, and on the basis of the representations, warranties, covenants and
\nagreements set forth herein, at the applicable Closing, the Sellers shall sell,
\ntransfer, convey, assign and deliver to Toshiba, and Toshiba shall purchase from
\nthe Sellers, all right, title and interest in and to the following assets
\n(collectively, the “Purchased Assets<\/u>“):<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

FP Purchased Assets<\/u>. To be purchased from FP (collectively, the
\n“FP Purchased Assets<\/u>“):<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

FP Owned Equipment<\/u>. The machinery, equipment and other assets
\ndescribed on the attached Schedule 2.1(a)(i)<\/u>, [***]* which shall
\nrepresent approximately [***]* of the wafer output capacity of FP and which
\nshall have been calculated from the list of assets owned by FP (the “FP Owned
\nEquipment<\/u>“);<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

FP Leased Equipment<\/u>. All rights and obligations of FP in connection
\nwith the machinery, equipment and other assets, [***]* set forth on attached
\nSchedule 2.1(a)(ii)<\/u>, which shall represent approximately [***]* of the
\nwafer output capacity of FP (the “FP Leased Equipment<\/u>” and together with
\nthe FP Owned Equipment, the “FP Equipment<\/u>“), that are subject to the
\nleases specified thereon (the “FP Leases<\/u>“), it being understood that the
\nassignment and assumption of such rights and obligations shall be effected as
\nset forth in Section 3.6; and<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

3<\/p>\n

\n

\n<\/p>\n\n\n\n\n\n
\n

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

\n

FP Documents<\/u>. All books, records and materials in the possession or
\ncontrol of FP and that are reasonably necessary or appropriate for Toshiba to
\noperate the FP Equipment in substantially the same manner as operated by FP as
\nof the date of this Agreement and as of each Closing Date, including vendor
\nagreements, title documents, user manuals, operating guides, bills of materials,
\nrecords, maintenance schedules and records, supplier and other vendor ordering
\ninformation and records, warranties for both materials and equipment purchased
\nand products sold, and all other operational, commercial and technical
\ninformation related to the FP Equipment.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

FA Purchased Assets<\/u>. To be purchased from FA (collectively, the
\n“FA Purchased Assets<\/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

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

\n

FA Owned Equipment<\/u>. The machinery, equipment and other assets
\ndescribed on the attached Schedule 2.1(b)(i)<\/u>, [***]* which shall
\nrepresent approximately [***]* of the wafer output capacity of FA and which
\nshall have been calculated from the list of assets owned by FA (the “FA Owned
\nEquipment<\/u>“);<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

FA Leased Equipment<\/u>. All rights and obligations of FA in connection
\nwith the machinery, equipment and other assets, [***]* set forth on attached
\nSchedule 2.1(b)(ii)<\/u>, which shall represent approximately [***]* of the
\nwafer output capacity of FA (the “FA Leased Equipment<\/u>” and, together with
\nthe FA Owned Equipment, the “FA Equipment<\/u>” or together with the FP Leased
\nEquipment, the “Leased Equipment<\/u>“), that are subject to the leases
\nspecified thereon (the “FA Leases<\/u>” and, together the with FP Leases, the
\n“Equipment Leases<\/u>“), it being understood that the assignment and
\nassumption of such rights and obligations shall be effected as set forth in
\nSection 3.6; and<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

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

\n

FA Documents<\/u>. All books, records and papers in the possession or
\ncontrol of FA and that are reasonably necessary for Toshiba to operate the FA
\nEquipment in substantially the same manner as operated by FA as of the date of
\nthis Agreement and as of each Closing Date, including vendor agreements, title
\ndocuments, user manuals, operating guides, bills of materials, records,
\nmaintenance schedules and records, supplier and other vendor ordering
\ninformation and records, warranties for both materials and equipment purchased
\nand products sold, and all other operational, commercial or technical
\ninformation related to the FA Equipment.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

As used in this Agreement, the term “Owned Equipment<\/u>” means the FP
\nOwned Equipment together with the FA Owned Equipment, and the term
\n“Equipment<\/u>” means the Owned Equipment together with the Leased Equipment.\n<\/p>\n<\/p>\n\n\n\n
\n

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

\n

Tool Selection Methodology; Substitution of Purchased Assets<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

4<\/p>\n

\n

\n<\/p>\n

it is understood by the Parties that the Equipment has been selected with the
\nintention that each of the FP Equipment and the FA Equipment represents
\napproximately [***]* of the equivalent wafer output capacity of the fabs
\nutilized by FP and FA, respectively, as of the date of this Agreement,
\npreserving actual toolset line balance between the capacity transferred to
\nToshiba and the remaining capacity of FP and FA, which in each case represents
\nas nearly as practicable [***]* the capital equipment of each of FP and FA.<\/p>\n<\/p>\n\n\n\n\n\n
\n

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

\n

To the extent that the Parties determine that the purchase of Owned Equipment
\nor assignment and assumption of the Equipment Leases with respect to Leased
\nEquipment (1) requires consents of third parties that cannot be obtained in a
\ntimely manner or without undue difficulty or expense, (2) would not release
\nSanDisk from the guaranty obligations related to the Leased Equipment, or (3)
\ninvolves Equipment which, prior to the relevant Closing, is materially damaged,
\nthe Parties shall endeavor in good faith to promptly reach agreement on such
\nadjustments to Schedules<\/u> 2.1(a)(i)<\/u>, 2.1(a)(ii)<\/u>,
\n2.1(b)(i)<\/u> and\/or 2.1(b)(ii)<\/u> as are necessary to address the
\nforegoing issues.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Excluded Assets<\/u>. Notwithstanding anything to the contrary set forth in
\nthis Agreement, except for the Purchased Assets, the Sellers shall not transfer
\nat Closing any other assets of the Sellers (such assets, the “Excluded
\nAssets<\/u>“), which Excluded Assets shall be retained by the Sellers.<\/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

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

\n

Excluded Liabilities<\/u>. Notwithstanding anything to the contrary set
\nforth in this Agreement, except for the Assumed Liabilities, the Sellers shall
\nnot transfer at Closing any liability for any contracts, agreements, commitments
\nor liabilities of the Sellers or any SanDisk Party whatsoever, including any of
\nthe following (collectively, the “Excluded Liabilities<\/u>“), which Excluded
\nLiabilities shall be retained by the Sellers and\/or the SanDisk Parties as
\napplicable:<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

any liability relating to, arising out of or incurred in connection with the
\nPurchased Assets, or use, operation or possession thereof, prior to the Closing;
\nand<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

any trade accounts payable, accrued liability or other liability of the
\nSellers as of the Closing whether or not such amounts are known or payable on or
\nprior to the Closing;<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

except as expressly provided for in Sections 3.1(a) and 3.7 below, any Taxes
\nor similar charges that may become payable in any jurisdiction by the Sellers by
\nreason of the sale and transfer of the Purchased Assets pursuant hereto, or
\narising from or relating to Sellers153 receipt of the FP Purchase Price or FA
\nPurchase Price (or relief from any Assumed Liability); and<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

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

\n

any liability relating to, arising out of or incurred in connection with any
\nfinal nonappealable decision arising out of any suit, litigation, arbitration or
\nadministrative proceeding before any Governmental Authority (all
\n“Actions<\/u>“) prior to the Closing or initiated after the Closing but based
\nin whole or part on an act or omission of a Seller,<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

5<\/p>\n

\n

\n<\/p>\n

or any current or former officer, director, employee or agent of a Seller or
\nthe use, operation or possession of the Purchased Assets prior to the date of
\nthis Agreement.<\/p>\n<\/p>\n

The term “Tax<\/u>” (and, with correlative meaning, “Taxes<\/u>” and
\n“Taxable<\/u>“) as used in this Agreement means any net income, alternative or
\nadd-on minimum tax, gross income, gross receipts, sales, use, ad valorem,
\ntransfer, franchise, profits, license, withholding, payroll, employment, excise,
\nseverance, stamp, occupation, premium, property, environmental or windfall
\nprofit tax, custom, duty or other tax, governmental fee or other assessment or
\ncharge of any kind whatsoever, together with any interest or any penalty,
\naddition to tax or additional amount and any interest on such penalty, addition
\nto tax or additional amount imposed by any Governmental Authority. The term
\n“Governmental Authority<\/u>” as used in this Agreement means any court,
\ntribunal, arbitrator or any government or political subdivision thereof, whether
\nforeign, federal, state or county, or any agency, authority, official or
\ninstrumentality of such government or political subdivision.<\/p>\n<\/p>\n\n\n\n
\n

2.4<\/p>\n<\/td>\n

\n

Assumed Liabilities<\/u>. Subject to the terms and conditions of this
\nAgreement, at each Closing, each Seller shall assign to Toshiba, and Toshiba
\nshall assume, the related Assumed Liabilities (as defined below). Thereafter,
\nToshiba shall pay and discharge all such Assumed Liabilities as and when such
\nAssumed Liabilities become due and owing. The term “Assumed Liabilities<\/u>”
\nas used in this Agreement means only those liabilities which relate to, arise
\nout of or are incurred in connection with the Purchased Assets on or after the
\nClosing at which such assets are transferred, including the Equipment Leases to
\nthe extent assigned, but not including any Excluded Liabilities and not
\nincluding any liabilities in connection with the Purchased Assets that are
\nspecifically allocated to the Sellers or the SanDisk Parties under other
\nagreements relating to the operation of the Y3 Facility and the Y4 Facility.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

3.<\/strong> Purchase Price; Closing<\/strong><\/p>\n<\/p>\n\n\n\n\n
\n

3.1<\/p>\n<\/td>\n

\n

Purchase Price<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Timing of Purchase Price Payment by Toshiba<\/u>. Subject to the terms and
\nconditions of this Agreement, as full consideration for the sale, assignment,
\ntransfer and delivery of the Owned Equipment by the Sellers to Toshiba, and the
\nexecution and delivery by the Sellers of this Agreement and any and all
\ncertificates and instruments executed or contemplated to be executed by SanDisk
\nin connection with the Equipment Purchase Closing, Toshiba shall deliver [***]*,
\nby wire transfer of immediately available funds to an account designated by FP
\nor FA, as applicable, an amount equal to:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

for FP, [***]* (the “FP Purchase Price<\/u>“); and<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

for FA, [***]* (the “FA Purchase Price<\/u>“);<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

provided, however, that, in the event that the sale-and-leaseback
\narrangements described at Section 3.6(b) below are not obtained, Toshiba and
\nSanDisk shall discuss and agree on a reasonable delay of payment; provided,
\nfurther, that in no event shall payment be delayed beyond [***]*.<\/p>\n<\/p>\n<\/p>\n

\n<\/p>\n<\/p>\n

6<\/p>\n

\n

\n<\/p>\n\n\n\n
\n

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

\n

[***]* by Joint Venture<\/u>. No later than [***]*, each Seller shall
\ntransfer the entire FP Purchase Price and FA Purchase Price, as applicable and
\n[***]*, to each of SanDisk and Toshiba (with each of SanDisk and Toshiba
\nreceiving 50% of the applicable purchase price), by wire transfer of immediately
\navailable funds to accounts designated by SanDisk and Toshiba, [***]*. SanDisk
\nand Toshiba each agree to provide acknowledgment of such repayment to each
\nSeller.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

As used in this agreement, [***]* shall mean [***]*.<\/p>\n<\/p>\n\n\n\n\n
\n

3.2<\/p>\n<\/td>\n

\n

Closing<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

The transactions contemplated by this Agreement (the “Equipment
\nTransactions<\/u>“) shall be consummated at a series of closings (each a
\n“Closing<\/u>“).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

At each Closing, Toshiba will either purchase Owned Equipment (the
\n“Equipment Purchase Closing<\/u>“) or acquire rights and obligations of the
\nSellers in connection with the Leased Equipment or, as applicable, the Equipment
\nLeases, each as provided in Section 3.6 below (a “Lease Closing<\/u>“).<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Provided that all of the conditions to a Closing have been met or waived in
\nwriting by the Party that has the benefit thereof, each Closing will take place
\non the date set forth on Schedule 3.2<\/u>, or at such other place, date and
\ntime as the Parties mutually agree. As set forth on Schedule 3.2<\/u>, the
\nfirst Closing is contemplated to be a Lease Closing. As used in this Agreement,
\nthe term “Subsequent Closing<\/u>” shall mean each of (i) any Lease Closing
\nafter the first Closing and (ii) the Equipment Purchase Closing (the date of
\neach such Closing a “Subsequent Closing Date<\/u>,” and the first Closing Date
\ntogether with the Subsequent Closing Dates, the “Closing Dates<\/u>“).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

3.3<\/p>\n<\/td>\n

\n

Deliveries by the Sellers<\/u>. At each Closing, the Sellers shall (i) take
\nall steps necessary to place Toshiba in actual possession and operating control
\nof all Purchased Assets to be transferred at such Closing, and (ii) deliver the
\nfollowing items, duly executed by the Sellers, in each case in form and
\nsubstance acceptable to Toshiba:<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

FP Assignment and Assumption Agreements and Bill of Sal<\/u>e.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

At each Closing, an Assignment and Assumption Agreement executed by FP
\ncovering any rights and obligations under any FP Leases and other agreements to
\nbe transferred at such Closing, substantially in the form of attached
\nExhibit A<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

At the Equipment Purchase Closing, a Bill of Sale executed by FP covering all
\nof the FP Owned Equipment that is to be transferred at such Closing,
\nsubstantially in the form of attached Exhibit B<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n
\n

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

\n

FA Assignment and Assumption Agreement and Bill of Sale<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

At each Closing, an Assignment and Assumption Agreement executed by FA
\ncovering any rights and obligations under any FA Leases and other<\/p>\n

agreements to be transferred at such Closing, substantially in the form of
\nattached Exhibit C<\/u>.<\/p>\n<\/td>\n<\/tr>\n

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

7<\/p>\n

\n

\n<\/p>\n\n\n\n\n\n
\n

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

\n

At the Equipment Purchase Closing, a Bill of Sale executed by FA covering all
\nof the FA Owned Equipment that is to be transferred at such Closing,
\nsubstantially in the form of attached Exhibit D<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Sellers153 Invoices<\/u>. An invoice issued to Toshiba by each of FA and FP,
\nin each case dated the applicable Closing Date and requiring payment of the FA
\nPurchase Price and the FP Purchase Price, respectively, not later than
\n[***]*<\/a><\/sup>
\nfollowing such Closing Date.<\/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

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

\n

Other Conveyance Instruments<\/u>. Such other instruments of sale,
\ntransfer, conveyance and assignment as Toshiba deems are necessary or useful to
\ntransfer all right, title and interest in all Purchased Assets to be transferred
\nat such Closing to Toshiba, or to evidence the same.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Closing Condition Documents<\/u>. All of the documents provided for in
\nArticles 8 and, as applicable, 9 below.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

3.4<\/p>\n<\/td>\n

\n

Deliveries by Toshiba<\/u>. At the Closing, Toshiba shall deliver the
\nfollowing items, duly executed by Toshiba, in each case in form and substance
\nacceptable to the Sellers:<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Assumption Instruments<\/u>. Such other instruments of assumption as are
\nreasonably necessary for Toshiba to assume the Assumed Liabilities being assumed
\nat such Closing.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

Closing Condition Documents<\/u>. All of the documents provided for in
\nArticles 7 and, as applicable, 9 below.<\/p>\n<\/td>\n<\/tr>\n

\n

3.5<\/p>\n<\/td>\n

\n

Transfer of Title; Risk of Loss<\/u>. Legal and equitable title and risk of
\nloss with respect to all of the Purchased Assets shall pass from the Sellers to
\nToshiba at the relevant Closing pursuant to, and in accordance with, the terms
\nof this Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

3.6<\/p>\n<\/td>\n

\n

Equipment Leases<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Transfer of Leased Equipment<\/u>. Subject to Toshiba, SanDisk and the
\nSeller obtaining consent from the applicable financing parties, the Parties
\ncontemplate that Toshiba153s acquisition of the Sellers153 interests in the Leased
\nEquipment shall be conducted as follows: Toshiba and the parties to the existing
\nlease shall, on the day of the next scheduled payment under the relevant lease
\nfollowing the execution of this Agreement, and subject to FA or FP, as
\napplicable, making such scheduled payment, or on such other day as may be
\nmutually agreed between the applicable financing parties and the current lessee
\nof such Leased Equipment, effect a partial assignment of the relevant lease from
\nthe Seller to Toshiba as lessee.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

Financed Equipment<\/u>. [***]*.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Breach of Condition Failure<\/u>. [***]*<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

8<\/p>\n

\n

\n<\/p>\n\n\n\n\n
\n

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

\n

[***]*<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

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

For a period of [***]* (the “Resolution Period<\/u>“) from the date of the
\nevent causing the failure of [***],* SanDisk or Toshiba, as applicable, shall
\nhave an opportunity to remedy the failure of the conditions described above by
\n[***]*, such that [***]* (the “Resolution<\/u>“) and that the Closing can
\noccur on the first available open transfer window on or after the Resolution
\ndocumentation has been executed, or such earlier time as the Parties [***]* may
\nagree; [***]* of the Resolution Period. In the event that SanDisk or Toshiba, as
\napplicable, is unable to resolve such failure during such [***]*, the Parties
\nshall discuss in good faith alternative arrangements to effect such transfer on
\na commercially reasonable basis, and the treatment of payments made under
\nSection 3.6(c)(ii) during the [***]* to the [***]* of the Resolution Period, but
\nshall otherwise have no further obligations hereunder.<\/p>\n<\/p>\n\n\n\n\n
\n

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

\n

Other Condition Failure<\/u>. In the event any Equipment Lease fails to
\ntransfer [***]*, or the Equipment Purchase Closing fails to occur [***]*, due to
\na failure of [***]*, then Toshiba and SanDisk will discuss in good faith
\nalternative arrangements to effect such transfer on a commercially reasonable
\nbasis.<\/p>\n<\/td>\n<\/tr>\n

\n

3.7<\/p>\n<\/td>\n

\n

Costs and Taxes<\/u>.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

SanDisk shall be responsible for and shall pay (i) [***]* and (ii) [***]*
\ncollectively the “Lease Transfer Costs<\/u>“).<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

SanDisk shall pay to Toshiba, FP or FA, as applicable, the invoiced Lease
\nTransfer Costs [***]*, accompanied by evidence itemizing the Lease Transfer
\nCosts and indicating that such costs were actually paid by Toshiba, FP or FA, as
\napplicable.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

After the Closing, upon reasonable written notice, the Parties agree to
\nfurnish or cause to be furnished to each other party, and its officers,
\ndirectors, employees, managers, agents, attorneys, accountants, advisors and
\nrepresentatives, as applicable, access, during normal business hours, to such
\ninformation and assistance relating to the Purchased Assets as are reasonably
\nnecessary for financial reporting and accounting matters relating to the
\nPurchased Assets, the preparation and filing of any Tax returns or other filings
\nwith any Governmental Authority, reports or forms relating to the Purchased
\nAssets, the defense of any Tax or other claim or assessment relating to the
\nPurchased Assets or, in the case of the Sellers, relating to the operation of
\nthe Purchased Assets prior to the Closing, provided, however, that such access
\nand assistance do not unreasonably disrupt the normal operations of Toshiba, FP
\nor FA.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

To the extent not otherwise allocated in this Agreement, the Sellers shall be
\nresponsible for and shall promptly pay when due all Taxes levied with respect to
\nthe Purchased Assets transferred at such Closing attributable to the taxable
\nperiod ending on the day immediately preceding such Closing Date (such period
\nthe “Pre-Closing Period<\/u>“). To the extent not otherwise allocated in this
\nAgreement, Toshiba shall be responsible for and shall promptly pay when due all
\nTaxes levied with respect to the<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

9<\/p>\n

\n

\n<\/p>\n

Purchased Assets attributable to any taxable period beginning on the Closing
\nDate (or, in the case of any tax period which commences on the Closing Date, the
\nportion of such period beginning on the Closing Date) (such period the
\n“Post-Closing Period<\/u>“). All such Taxes levied with respect to the
\nPurchased Assets for a taxable period which includes (but does not end on) the
\nClosing Date shall be apportioned between Toshiba and the Sellers based on the
\nnumber of days of such taxable period included in the Pre-Closing Period and the
\nnumber of days of such taxable period included in the Post-Closing Period. The
\nSellers shall be liable for the proportionate amount of such Taxes attributable
\nto the Purchased Assets that is attributable to the Pre-Closing Period, and
\nToshiba shall be liable for the proportionate amount of such Taxes that is
\nattributable to the Post-Closing Period.<\/p>\n<\/p>\n

4.<\/strong> Representations and Warranties of Each of the
\nParties<\/strong><\/p>\n<\/p>\n

Each Party, severally and not jointly, represents and warrants to each other
\nParty that the following are true and correct as of the date of this Agreement:\n<\/p>\n<\/p>\n\n\n\n\n
\n

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

\n

Lease Agreements<\/u>. Except as it has previously informed the other
\nParties hereto, no event has occurred which constitutes a default by such Party
\nunder, or with the giving of notice or passage of time, would constitute a
\ndefault by such Party under, any provision of an Equipment Lease, and the
\nexecution, delivery and (assuming receipt of the requisite Material Consents)
\nperformance of this Agreement by it do not and will not breach, violate or
\nconflict with any provision of, or constitute (or with the giving of notice or
\npassage of time, constitute) a default under, any Equipment Lease.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Organization and Standing<\/u>. It is duly organized and validly existing
\nand, where applicable, in good standing under the laws of the jurisdiction in
\nwhich it is organized.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

4.3<\/p>\n<\/td>\n

\n

Authority; Enforceability<\/u>. It has the requisite corporate or
\nequivalent power and authority to enter into this Agreement, to execute any
\ncertificates or other instruments to be executed by it in connection with the
\nEquipment Transactions, and otherwise carry out the Equipment Transactions. All
\ncorporate or equivalent proceedings required to be taken by it to authorize the
\nexecution, delivery and performance of this Agreement, and any such certificates
\nand instruments, and the consummation of the Equipment Transactions, have been
\nor will be as of the Closing properly taken. This Agreement has been duly and
\nvalidly executed and delivered by it and constitutes a valid and binding
\nobligation of it, enforceable against it in accordance with its terms.<\/p>\n<\/td>\n<\/tr>\n

\n

4.4<\/p>\n<\/td>\n

\n

No Conflict<\/u>. The execution, delivery and performance of this Agreement
\nby it do not and will not (a) breach, violate or conflict with any provision of
\nits charter documents as amended to date, (b) conflict with or violate any law,
\nrule, regulation, order, writ, judgment, injunction, decree, determination or
\naward applicable to it, or (c) result in the creation or imposition of any Lien
\non any of the Purchased Assets. Other than pursuant to the Equipment Leases or
\nthis Agreement, it is under no obligation, absolute or contingent, to any
\nPerson, with respect to the sale, assignment, lease or sublease or other
\ntransfer, conveyance or placement of any Lien on any of the Purchased Assets.
\nThe term “Lien<\/u>” as used in this Agreement means any lien, pledge,
\nhypothecation, security interest, claim, lease, charge, option, right of first
\nrefusal, transfer restriction, encumbrance or any other restriction or
\nlimitation whatsoever. The term “Person<\/u>” as used in this Agreement means
\nany individual, corporation, partnership, limited liability company, firm, joint
\nventure, association, joint-stock company, trust, unincorporated organization,
\nGovernmental Authority or other entity.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

10<\/p>\n

\n

\n<\/p>\n\n\n\n\n
\n

4.5<\/p>\n<\/td>\n

\n

Brokers153 or Finders153 Fees<\/u>. It has not incurred and will not incur,
\ndirectly or indirectly, any liability for brokerage or finders153 fees or agents153
\ncommissions or any similar charges in connection with this Agreement or the
\nEquipment Transactions [***]*. It has not taken any action or entered into any
\nagreement or understanding that will cause any other Party to incur any of the
\nforegoing liabilities.<\/p>\n<\/td>\n<\/tr>\n

\n

4.6<\/p>\n<\/td>\n

\n

Litigation<\/u>. There is no Action pending, or, to its knowledge,
\nthreatened, or directly relating to the Equipment Transactions and which, if
\nsuccessful, would materially impair such Party153s ability to consummate the
\nEquipment Transactions. There is no judgment, order, writ or decree that
\nsubstantially restrains its ability to consummate the Equipment Transactions.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

5.<\/strong> Representations and Warranties of the
\nSellers<\/strong><\/p>\n<\/p>\n

FP, solely with respect to the FP Purchased Assets, and FA, solely with
\nrespect to the FA Purchased Assets, represents and warrants, severally and not
\njointly, to Toshiba that the following are true and correct as of the date of
\nthis Agreement:<\/p>\n<\/p>\n\n\n\n\n
\n

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

\n

Equipment<\/u>. It holds good and marketable title to the Owned Equipment,
\nfree and clear of any Liens other than any security interest held by the Parties
\nwhich shall be removed from the applicable Equipment as such Equipment is
\ntransferred pursuant to this Agreement, and is a lessee of the Leased Equipment.
\nSuch Equipment is in good operating condition and repair, subject only to
\nordinary wear and tear. To its knowledge, the current use and operation of such
\nEquipment are in compliance in all material respects with all Applicable Laws.
\nExcept as set forth on Schedule 5.1<\/u>, it has not received any notice that
\nthe possession or operation of any such Equipment does not or did not comply
\nwith Applicable Law. There is no Action pending or, to its knowledge,
\nthreatened, relating to or affecting the Purchased Assets. The term
\n“Applicable Law<\/u>” as used in this Agreement means, with respect to a
\nPerson, any domestic or foreign, national, federal, territorial, state or local
\nconstitutions, statues, laws (including principles of common law), treaties,
\nordinances, rules, administrative interpretations, regulations, orders, writs,
\ninjunctions, legally binding directives, judgments, decrees or other
\nrequirements or restrictions of any arbitrator or Government Authority
\napplicable to such Person or any of its affiliates, properties, assets,
\nofficers, directors, employees, consultants or agents in connection with such
\nofficer153s, director153s, employee153s, consultant153s or agent153s activities on behalf
\nof such Person or any of its affiliates.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Permits<\/u>. It has obtained all material permits and other authorizations
\n(collectively, “Permits<\/u>“) necessary for the ownership, operation and use
\nof the Purchased Assets in substantially the same manner as currently owned,
\noperated and used and each Permit is valid and remains in full force and effect.
\nIt is not in default (nor has it failed to comply), nor has it received any
\nnotice of any claim of default or failure to comply, with respect to any Permit.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

11<\/p>\n

\n

\n<\/p>\n\n\n\n\n
\n

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

\n

Equipment Leases<\/u>. Each of the Equipment Leases to which it is a Party
\nis in full force and effect and each constitutes a legal, valid and binding
\nagreement, enforceable in accordance with its terms, subject to laws of general
\napplication relating to bankruptcy, insolvency, and the relief of debtors, and
\nno term or condition thereof has been amended from the form provided to Toshiba.
\nExcept as it has previously informed the other Parties hereto, there are no
\ndefaults by it under any of the Equipment Leases and no events have occurred
\nthat with notice or the lapse of time, or action or inaction by any party
\nthereto, would result in a violation thereof or a default thereunder. There is
\nno Action to which it is a party in which relief is sought involving, affecting
\nor relating in any manner to any of the Equipment Leases, and, to its knowledge,
\nthere is no Action pending or threatened against it involving, affecting or
\nrelating to any of the Equipment Leases. None of its rights under any of the
\nEquipment Leases will be materially impaired by the Equipment Transactions, and
\nall rights to be transferred to Toshiba in accordance with this Agreement will
\ninure to, and be enforceable by, Toshiba after the applicable Closing Date
\nwithout any authorization, approval, permission or license of, or filing with,
\nany Person.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

No Other Agreements<\/u>. It has no legal obligation, absolute or
\ncontingent, to any Person other than Toshiba to sell, assign, lease or sublease
\nor otherwise transfer, convey or place any Lien on any of the Purchased Assets.\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

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

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

\n

Operation of the Business<\/u>.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

The Sellers agree, prior to the Closing, (i) to operate the Purchased Assets
\nin the ordinary course of business, and (ii) to maintain the Equipment in good
\noperating condition, subject, only to ordinary wear and tear, each as consistent
\nwith the Sellers153 past practices, and (iii) to promptly inform Toshiba of any
\ndestruction, damage to or loss of any of the Purchased Assets that has resulted
\nin a material reduction in the value of the Purchased Assets. The Sellers
\nfurther agree, prior to the Closing, to use all commercially reasonable efforts
\nto transfer or otherwise make available to Toshiba, at each Seller153s expense,
\nthe benefit of all warranties and similar protections applicable to the
\nEquipment.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

Equipment Leases<\/u>. Until the Closing, the Sellers agree to maintain all
\nrights and obligations in, to and under the Equipment Leases in full force and
\neffect.<\/p>\n<\/td>\n<\/tr>\n

\n

6.3<\/p>\n<\/td>\n

\n

Approvals and Consents<\/u>. The Parties agree to use commercially
\nreasonable efforts to take promptly, or cause to be taken, all actions, and to
\ndo promptly, or cause to be done, all things necessary and proper under
\nApplicable Law to consummate and make effective the Equipment Transactions, to
\nobtain all necessary waivers, consents and approvals and to effect all necessary
\nregistrations and filings and to remove any injunctions or other impediments or
\ndelays, legal or otherwise, in order to consummate and make effective the
\nEquipment Transactions for the purpose of securing to the Parties hereto the
\nbenefits contemplated by this Agreement. Such waivers, consents and approvals
\nare listed on Schedule 6.3<\/u> attached hereto (the “Material
\nConsents<\/u>“).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

6.4<\/p>\n<\/td>\n

\n

Shareholder Actions<\/u>. The Parties that are shareholders of the Sellers
\nagree to exercise their voting and other governance powers over the Sellers to
\nfurther the execution,<\/p>\n

delivery and performance of this Agreement and the consummation of the
\nEquipment Transactions. The Parties that are shareholders in the Sellers agree
\nto cause their representatives on the boards of directors of the Sellers, in a
\nmanner consistent with their fiduciary duties under the Companies Act (Japan),
\nto vote and to take other director actions to further the execution, delivery
\nand performance of this Agreement, and the consummation of the Equipment
\nTransactions. The Parties that are shareholders in the Sellers agree to take no
\naction that would cause any representation or warranty of the Sellers contained
\nin Articles 4 or 5 to be untrue. The Sellers and the SanDisk Parties shall
\nprovide reasonable cooperation to Toshiba in connection with the lease
\narrangements described in Section 3.6 above.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

12<\/p>\n

\n

\n<\/p>\n\n\n\n
\n

6.5<\/p>\n<\/td>\n

\n

Further Assurances<\/u>. The Parties agree to cooperate to execute and
\ndeliver such further documents, certificates, agreements and to take such other
\nactions as may be reasonably requested to evidence or reflect the transactions
\ncontemplated by this Agreement and to carry out the intentions of this
\nAgreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

7.<\/strong> Conditions Precedent to the Sellers153 Obligations
\nat the First Closing<\/strong><\/p>\n<\/p>\n

The obligations of Sellers to effect the first Closing are subject to
\nsatisfaction of the following conditions at or prior to the first Closing
\n(unless expressly waived in writing by FP or FA as applicable at or prior to the
\nfirst Closing):<\/p>\n<\/p>\n\n\n\n\n
\n

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

\n

No Legal Action<\/u>. No Action relating to the Equipment Transactions
\nshall have been instituted against any of the Parties hereto before any court or
\nby any Governmental Authority which restrains or prohibits the Equipment
\nTransactions.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Accuracy of Representations and Warranties<\/u>. Each of the
\nrepresentations and warranties of Toshiba contained in this Agreement, or in any
\nother agreement signed and delivered contemporaneously with this Agreement by or
\non behalf of Toshiba in connection with the transactions contemplated hereby,
\nshall be true and correct in all material respects as of the Closing Date with
\nthe same effect as though such representations and warranties had been made on
\nand as of the Closing Date.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

Performance of Obligations<\/u>. Toshiba shall have in all material
\nrespects performed and complied with all of the agreements, covenants and
\nobligations required under this Agreement (including each of the attached
\nExhibits), and under the Transaction Agreements set forth in Section 2.1(a) of
\nthe JVRA, to be performed or complied with by Toshiba prior to or at the
\nClosing.<\/p>\n<\/td>\n<\/tr>\n

\n

7.4<\/p>\n<\/td>\n

\n

Governmental Approvals<\/u>. All material filings that are required, if
\nany, to have been made by the Parties with any Governmental Authority in order
\nto carry out this Agreement shall have been made and all material
\nauthorizations, consents and approvals from any Governmental Authority required
\nto carry out this Agreement shall have been received and any applicable waiting
\nperiods shall have expired.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

7.5<\/p>\n<\/td>\n

\n

Compliance Certificate<\/u>. Toshiba shall have delivered to the Sellers a
\ncertificate, executed by the appropriate officers of Toshiba, certifying that
\nthe conditions specified in Sections 7.2 and 7.3 (insofar as they are to be
\nperformed by Toshiba) have been fulfilled.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

13<\/p>\n

\n

\n<\/p>\n\n\n\n\n
\n

7.6<\/p>\n<\/td>\n

\n

JVRA<\/u>. The JVRA shall be in full force and effect, and each Party
\nthereto (other than the SanDisk Parties) shall have in all material respects
\nperformed and complied with<\/p>\n<\/td>\n<\/tr>\n

\n

7.7<\/p>\n<\/td>\n

\n

all of the agreements, covenants and obligations required under the JVRA
\n(including each of the Exhibits thereto) to be performed or complied with by
\nthem prior to or at such time.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

8.<\/strong> Conditions Precedent to Toshiba153s Obligations at
\nthe First Closing <\/strong><\/p>\n<\/p>\n

The obligations of Toshiba to effect the first Closing are subject to
\nsatisfaction of the following conditions at or prior to the first Closing
\n(unless expressly waived in writing by Toshiba in its discretion at or prior to
\nthe first Closing):<\/p>\n<\/p>\n\n\n\n\n
\n

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

\n

Conveyance<\/u>. The Sellers will have executed and delivered to Toshiba
\nthe FP and FA Bills of Sale, the FP and FA Assignment and Assumption Agreements,
\nand any other certificates, instruments or documents required pursuant to the
\nprovisions of this Agreement or otherwise necessary to transfer the Owned
\nEquipment to Toshiba in accordance with the terms hereof.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

No Legal Action<\/u>. No Action relating to the Equipment Transactions
\nshall have been instituted against any of the Parties hereto before any court or
\nby any Governmental Authority which restrains or prohibits the Equipment
\nTransactions.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

Accuracy of Representations and Warranties<\/u>. Each of the
\nrepresentations and warranties of the Sellers and the SanDisk Parties contained
\nin this Agreement, or in any agreement signed and delivered contemporaneously
\nwith this Agreement by or on behalf of FP, FA or any SanDisk Party in connection
\nwith the transactions contemplated hereby, shall be true and correct in all
\nmaterial respects as of the Closing Date with the same effect as though such
\nrepresentations and warranties had been made on and as of the Closing Date.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Performance of Obligations<\/u>. The Sellers and the SanDisk Parties shall
\nhave in all material respects performed and complied with all of their
\nagreements, covenants and obligations under this Agreement, and under the
\nTransaction Agreements set forth in Section 2.1(a) of the JVRA, to be performed
\nor complied with by them prior to or at the Closing.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

[***]*.<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

Consents and Waivers<\/u>. The Sellers shall have obtained all Material
\nConsents.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

8.7<\/p>\n<\/td>\n

\n

Governmental Approvals<\/u>. All material filings that are required to have
\nbeen made by the Parties with any Governmental Authority in order to carry out
\nthe terms of this Agreement shall have been made and all material
\nauthorizations, consents and approvals from any Governmental Authority required
\ntherefor shall have been obtained and any applicable waiting periods thereunder
\nshall have expired.<\/p>\n<\/td>\n<\/tr>\n

\n

8.8<\/p>\n<\/td>\n

\n

Compliance Certificate<\/u>. Each of FP, FA and SanDisk (on behalf of all
\nthe SanDisk Parties) shall have delivered to Toshiba a certificate, executed by
\nthe appropriate officers of FP, FA or SanDisk as applicable, certifying that the
\nconditions specified in Sections 8.3 and 8.4 (insofar as they are to be
\nperformed by FP, FA or SanDisk) have been fulfilled.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

14<\/p>\n

\n

\n<\/p>\n\n\n\n\n
\n

8.9<\/p>\n<\/td>\n

\n

JVRA<\/u>. The JVRA shall be in full force and effect, and each Party
\nthereto (other than Toshiba) shall have in all material respects performed and
\ncomplied with all of its agreements, covenants and obligations under the JVRA to
\nbe performed or complied with by them prior to or at such time.<\/p>\n<\/td>\n<\/tr>\n

\n

8.10<\/p>\n<\/td>\n

\n

Material Adverse Effect<\/u>. There shall not have been any Material
\nAdverse Effect with respect to the Purchased Assets. As used in this Agreement,
\nthe term “Material Adverse Effect<\/u>” means a change or changes or effect or
\neffects (including work stoppages) that individually or in the aggregate are or
\nmay reasonably be expected to be materially adverse to the Purchased Assets or
\nthe ownership, possession or use thereof as of the date of this Agreement or as
\nof the Closing Date; provided, however<\/u>, that “Material Adverse Effect”
\nshall not include: (i) any changes in the ordinary course of business, (ii) any
\nchanges in the financial or credit markets, including any adverse change in the
\nmarket prices of the securities or the credit ratings of Toshiba or SanDisk, and
\n(iii) any changes in the market for NAND flash, or affecting manufacturers of
\nNAND flash generally.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

8.11<\/p>\n<\/td>\n

\n

No Breach of Equipment Leases<\/u>. There shall not have occurred and be
\ncontinuing a breach of any covenant under any of the existing leases with
\nrespect to any equipment leased by the Sellers; provided, however, this Section
\nshall not apply to the transfer of Owned Equipment.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

9.<\/strong> Conditions Precedent to the Subsequent
\nClosings<\/strong><\/p>\n<\/p>\n

The obligations of the Sellers and Toshiba to effect each Subsequent Closing
\nare subject to satisfaction of the following conditions at or prior to each
\nSubsequent Closing (unless expressly waived in writing by the Party having the
\nbenefit thereof in its discretion at or prior to such Subsequent Closing):<\/p>\n<\/p>\n\n\n\n\n
\n

9.1<\/p>\n<\/td>\n

\n

Prior Conditions<\/u>. Each of the conditions to such Party153s obligations
\nin Article 7 or 8 shall be satisfied as of the relevant Subsequent Closing Date.\n<\/p>\n<\/td>\n<\/tr>\n

\n

9.2<\/p>\n<\/td>\n

\n

SanDisk Guarantee Obligations<\/u>. SanDisk shall have received evidence of
\nthe fact that its obligations as a guarantor of the Equipment Leases have been
\nreduced to reflect the transfer of the Leased Equipment to take place at such
\nSubsequent Closing.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

9.3<\/p>\n<\/td>\n

\n

Assignment and Assumption Agreement<\/u>. The relevant Parties shall have
\nexecuted the FP and FA Assignment and Assumption Agreements and any other
\ncertificates, instruments or documents required pursuant to the provisions of
\nthis Agreement or otherwise necessary to transfer the Assumed Liabilities to
\nToshiba in accordance with the terms hereof, and to consummate the Equipment
\nTransactions.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

10.<\/strong> Indemnification<\/strong><\/p>\n<\/p>\n\n\n\n\n
\n

10.1<\/p>\n<\/td>\n

\n

Each Party agrees to, and does hereby, indemnify (an “Indemnifying
\nParty<\/u>“) and hold harmless each of the other Parties from and against any and
\nall losses arising out of, or based upon, the gross negligence or willful
\nmisconduct of such Indemnifying Party under this Agreement.<\/p>\n<\/td>\n<\/tr>\n

\n

10.2<\/p>\n<\/td>\n

\n

Damages Limited. <\/strong><\/u>IN THE ABSENCE OF ACTUAL FRAUD, IN
\nNO EVENT SHALL ANY PARTY BE LIABLE TO OR BE REQUIRED TO INDEMNIFY ANY OTHER
\nPARTY OR ANY OF THEIR RESPECTIVE AFFILIATES FOR ANY<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGE OF ANY KIND, (INCLUDING
\nWITHOUT LIMITATION LOSS OF PROFIT OR DATA), WHETHER OR NOT ADVISED OF THE
\nPOSSIBILITY OF SUCH LOSS.<\/p>\n<\/p>\n<\/p>\n

15<\/p>\n

\n

\n<\/p>\n\n\n\n\n
\n

10.3<\/p>\n<\/td>\n

\n

[***]*.<\/p>\n<\/td>\n<\/tr>\n

\n

10.4<\/p>\n<\/td>\n

\n

Sole Remedy<\/u>. Other than the payment of Lease Transfer Costs as set
\nforth in Section 3.7, rights to equitable relief and, to the extent available
\nunder Applicable Law, claims for fraud, the sole remedy available to any Party
\nfor breaches of this Agreement shall be limited to the rights set forth in this
\nArticle 10.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

11.<\/strong> Termination of the Agreement<\/strong><\/p>\n<\/p>\n\n\n\n\n
\n

11.1<\/p>\n<\/td>\n

\n

Termination<\/u>. This Agreement and the Equipment Transactions may be
\nterminated:<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

at any time, by mutual written consent of the Sellers, SanDisk and Toshiba;\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

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

\n

at any time, by one Party (as between Toshiba and SanDisk) if it is not in
\nmaterial breach of its representations, warranties, covenants and agreements
\nunder this Agreement and there has been a material breach of any representation,
\nwarranty, covenant or agreement contained in this Agreement on the part of the
\nother Party (as between Toshiba and SanDisk) and (i) such Party has not cured
\nsuch breach within the later of (a) [***]* after the other Party has given
\nnotice of such breach to such Party (provided however, that, no cure period
\nshall be required for breach which by its nature cannot be cured) or (b) the end
\nof the Resolution Period set forth in Section 3.6(c) and (ii) as a result of
\nsuch breach any of the conditions set forth in Articles 7 or 8 would not be
\nsatisfied prior to the Closing Date, as such date may be adjusted in accordance
\nwith Section 3.6(c);<\/p>\n<\/td>\n<\/tr>\n

\n

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

\n

by any Party by written notice if there shall be a final nonappealable order
\nof a court of competent jurisdiction in effect preventing consummation of the
\nEquipment Transactions; or<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
\n

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

\n

by any Party by written notice if there shall be any statute, rule,
\nregulation or order enacted, promulgated or issued or deemed applicable to the
\nEquipment Transactions by any Governmental Authority that would make
\nconsummation of any of the Equipment Transactions illegal.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

12.<\/strong> General Provisions<\/strong><\/p>\n<\/p>\n\n\n\n\n
\n

12.1<\/p>\n<\/td>\n

\n

Payment of Expenses<\/u>. Except as otherwise provided in this Agreement,
\neach of the Sellers, the SanDisk Parties and Toshiba will bear its own expenses
\nincurred in connection with this Agreement and the consummation of the Equipment
\nTransactions, including the fees and expenses of attorneys, accountants,
\nbrokers, finders and any other advisors engaged by each Party.<\/p>\n<\/td>\n<\/tr>\n

\n

12.2<\/p>\n<\/td>\n

\n

Relationship of the Parties<\/u>. The Sellers, the SanDisk Parties and
\nToshiba will at all times be independent contractors, and nothing in this
\nAgreement will be construed as creating a joint venture, partnership or agency
\nrelationship between the Parties.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

16<\/p>\n

\n

\n<\/p>\n\n\n\n
\n

12.3<\/p>\n<\/td>\n

\n

Notices<\/u>. Any notice or other communication required or permitted to be
\ndelivered to any party under this Agreement shall be in writing and shall be
\ndeemed properly delivered, given and received when delivered (by hand, by
\nregistered mail, by courier or express delivery service or by telecopier) to the
\naddress or telecopier or facsimile number set forth beneath the name of such
\nParty below (or to such other address or telecopier number as such Party shall
\nhave specified in a written notice given to the other Party hereto):<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

if to Toshiba, to:<\/p>\n<\/p>\n<\/p>\n

Toshiba Corporation<\/p>\n<\/p>\n

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

1-1-1 Shibaura<\/p>\n<\/p>\n

Minato-ku, Tokyo 105-8001 Japan<\/p>\n<\/p>\n

Attention: Vice President<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n<\/p>\n

with copies (which shall not constitute notice) to:<\/p>\n<\/p>\n

Toshiba Corporation<\/p>\n<\/p>\n

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

Legal Affairs Division<\/p>\n<\/p>\n

1-1-1 Shibaura<\/p>\n<\/p>\n

Minato-ku, Tokyo 105-8001 Japan<\/p>\n<\/p>\n

Attention: General Manager<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

and to:<\/p>\n<\/p>\n

Morrison & Foerster, LLP<\/p>\n<\/p>\n

Shin-Marunouchi Building 29F<\/p>\n<\/p>\n

1-5-1 Marunouchi<\/p>\n<\/p>\n

Chiyoda-ku, Tokyo 100-6529 Japan<\/p>\n<\/p>\n

Attention: [***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n<\/p>\n

if to the Sellers, to:<\/p>\n<\/p>\n

Flash Alliance, Ltd.<\/p>\n<\/p>\n

800 Yamanoisshikicho,<\/p>\n<\/p>\n

Yokkaichi, Mie, Japan<\/p>\n<\/p>\n

Attention: President<\/p>\n<\/p>\n<\/p>\n<\/p>\n<\/p>\n

\n<\/p>\n<\/p>\n

17<\/p>\n

\n

\n<\/p>\n

and to:<\/p>\n<\/p>\n

Flash Partners, Ltd.<\/p>\n<\/p>\n

800 Yamanoisshikicho,<\/p>\n<\/p>\n

Yokkaichi, Mie, Japan<\/p>\n<\/p>\n

Attention: President<\/p>\n<\/p>\n<\/p>\n

with copies to:<\/p>\n<\/p>\n

SanDisk Corporation<\/p>\n<\/p>\n

601 McCarthy Boulevard<\/p>\n<\/p>\n

Milpitas, CA 95035 USA<\/p>\n<\/p>\n

Attention: Chief Operating Officer<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n<\/p>\n

and to:<\/p>\n<\/p>\n

Toshiba Corporation<\/p>\n<\/p>\n

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

Legal Affairs Division<\/p>\n<\/p>\n

1-1-1 Shibaura<\/p>\n<\/p>\n

Minato-ku, Tokyo 105-8001 Japan<\/p>\n<\/p>\n

Attention: General Manager<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

if to a SanDisk Party, to:<\/p>\n<\/p>\n

SanDisk Corporation<\/p>\n<\/p>\n

601 McCarthy Boulevard<\/p>\n<\/p>\n

Milpitas, CA 95035 USA<\/p>\n<\/p>\n

Attention: President and CEO<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n<\/p>\n

with copies to:<\/p>\n<\/p>\n

SanDisk Corporation<\/p>\n<\/p>\n

601 McCarthy Boulevard<\/p>\n<\/p>\n

Milpitas, California 95035 USA<\/p>\n<\/p>\n

Attention: Vice President and General Counsel<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n<\/p>\n<\/p>\n<\/p>\n

\n<\/p>\n<\/p>\n

18<\/p>\n

\n

\n

and to:<\/p>\n<\/p>\n

Jones Day<\/p>\n<\/p>\n

Kamiyacho Prime Place<\/p>\n<\/p>\n

1-17, Toranomon Place<\/p>\n<\/p>\n

Minato-ku, Tokyo 105-0001, Japan<\/p>\n<\/p>\n

Attention: Nobutoshi Yamanouchi<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n

[***]*<\/p>\n<\/p>\n<\/p>\n\n\n\n\n
\n

12.4<\/p>\n<\/td>\n

\n

Governing Law; Dispute Resolution<\/u>. This Agreement will be governed by
\nand construed, and the rights and obligations of the Parties shall be
\ndetermined, in accordance with the laws of California without giving effect to
\nprinciples of conflict of laws. Any dispute concerning this Agreement shall be
\nreferred to the Management Committee (as that term is defined in Section 6.9 of
\nthe Flash Alliance Master Agreement) and handled by it in accordance with the
\nFlash Alliance Master Agreement. If the Management Committee cannot resolve such
\ndispute in accordance with the terms of the Master Agreement, then such dispute
\nwill be settled by binding arbitration in San Francisco, California. The dispute
\nshall be heard by a panel of three arbitrators pursuant to the rules of the
\nInternational Chamber of Commerce. The awards of such arbitration shall be final
\nand binding upon the parties thereto. Each party will bear its own fees and
\nexpenses associated with the arbitration. Filing fees and arbitrator fees
\ncharged by the ICC shall be borne equally by the Parties.<\/p>\n<\/td>\n<\/tr>\n

\n

12.5<\/p>\n<\/td>\n

\n

Assignability; Third-Party Rights<\/u>. This Agreement shall be binding
\nupon the Sellers and their successors and permitted assigns (if any), the
\nSanDisk Parties and their successors and permitted assigns (if any) and Toshiba
\nand its successors and permitted assigns (if any). This Agreement shall inure to
\nthe benefit of the Sellers and Toshiba and their respective successors and
\npermitted assigns (if any). This Agreement may not be assigned by either Party
\nwithout the prior written consent of the other Party. Nothing in this Agreement,
\nexpress or implied, will be deemed to confer upon any other Person, any rights
\nor remedies under, or by reason of, this Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

12.6<\/p>\n<\/td>\n

\n

Waiver<\/u>. No failure or delay on the part of any Party hereto to
\nexercise any right or remedy under this Agreement shall operate as a waiver of
\nsuch right or remedy, and no single or partial exercise of any such right or
\nremedy shall preclude any other or further exercise thereof. No Party shall be
\ndeemed to have waived any claim arising out of this Agreement, or any right or
\nremedy under this Agreement, unless the waiver of such claim, right or remedy is
\nexpressly set forth in a written instrument duly executed and delivered on
\nbehalf of such Party.<\/p>\n<\/td>\n<\/tr>\n

\n

12.7<\/p>\n<\/td>\n

\n

Amendments<\/u>. This Agreement may not be amended, modified or
\nsupplemented other than by a written instrument duly executed and delivered by a
\nduly authorized officer on behalf of each of the Parties.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

12.8<\/p>\n<\/td>\n

\n

Headings<\/u>. The section and other headings contained in this Agreement
\nare for reference purposes only and will not in any way affect the meaning, or
\ninterpretation of this Agreement.<\/p>\n<\/td>\n<\/tr>\n

\n

12.9<\/p>\n<\/td>\n

\n

Preparation of this Agreement<\/u>. Each of Toshiba and the SanDisk Parties
\nhereby acknowledges and agrees that (a) Toshiba and the SanDisk Parties jointly
\nand equally participated in the drafting of this Agreement and all other
\nagreements contemplated<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

\n<\/p>\n<\/p>\n

19<\/p>\n

\n

\n<\/p>\n

hereby, (b) Toshiba and the SanDisk Parties have been adequately represented
\nand advised by legal counsel with respect to this Agreement and the Equipment
\nTransactions and (c) no presumption shall be made that any provision of this
\nAgreement shall be construed against any Party by reason of such role in the
\ndrafting of this Agreement and any other agreement contemplated hereby.<\/p>\n<\/p>\n\n\n\n\n
\n

12.10<\/p>\n<\/td>\n

\n

Severability<\/u>. If any provision of this Agreement or the application
\nthereof, becomes or is declared by a court of competent jurisdiction to be
\nillegal, void or unenforceable, the remainder of this Agreement will continue in
\nfull force and effect and the application of such provision to other persons or
\ncircumstances will be interpreted so as reasonably to effect the intent of the
\nParties hereto. The Parties153 further agree to replace such void or unenforceable
\nprovision of this Agreement with a valid and enforceable provision that will
\nachieve, to the extent possible, the economic, business and other purposes of
\nsuch void or unenforceable provision.<\/p>\n<\/td>\n<\/tr>\n

\n

12.11<\/p>\n<\/td>\n

\n

Entire Agreement<\/u>. The schedules and exhibits attached hereto are
\nincorporated into this Agreement by reference. This Agreement and the schedules
\nand exhibits hereto, and the JVRA, constitute the entire agreement between the
\nParties with respect to the subject matter hereof and supersede all prior
\nagreements and understandings both written and oral between the Parties with
\nrespect to the subject matter hereof, including the memorandum of understanding
\nby and among Toshiba, SanDisk and SanDisk Ireland dated October 20, 2008.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
\n

12.12<\/p>\n<\/td>\n

\n

Counterparts<\/u>. This Agreement may be executed in counterparts, each of
\nwhich when so executed will be deemed to be an original, and all such
\ncounterparts will together constitute but one and the same instrument. Execution
\nand delivery of this Agreement by exchange of facsimile copies bearing the
\nfacsimile signature of a Party shall constitute a valid and binding execution
\nand delivery of this Agreement by such Party.<\/p>\n<\/td>\n<\/tr>\n

\n

12.13<\/p>\n<\/td>\n

\n

No Representations or Warranties<\/u>. EXCEPT AS EXPRESSLY SET FORTH IN THE
\nREPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NO PARTY MAKES ANY
\nREPRESENTATIONS OR WARRANTIES REGARDING THE STATUS OR CONDITION OF THE PURCHASED
\nASSETS, WHETHER EXPRESS OR IMPLIED, AND NO WARRANTY OF MERCHANTABILITY, FITNESS
\nFOR INTENDED OR PARTICULAR USE OR OTHERWISE<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[<\/strong>Remainder of page intentionally left
\nblank.]<\/strong><\/p>\n

\n<\/p>\n

20<\/p>\n

\n

\n<\/p>\n

IN WITNESS WHEREOF, Toshiba, the Sellers and the SanDisk Parties have each
\ncaused this Agreement to be executed as of the date first written above.<\/p>\n<\/p>\n\n\n\n\n\n
\n

“FP”<\/p>\n

FLASH PARTNERS LIMITED<\/p>\n

By ________________________________<\/p>\n

Name ______________________________<\/p>\n

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

\n

“FA”<\/p>\n

FLASH ALLIANCE LIMITED<\/p>\n

By ________________________________<\/p>\n

Name ______________________________<\/p>\n

Title _______________________________<\/p>\n<\/td>\n<\/tr>\n

\n

“TOSHIBA”<\/p>\n

TOSHIBA CORPORATION<\/p>\n

By ________________________________<\/p>\n

Name ______________________________<\/p>\n

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

\n

“SANDISK”<\/p>\n

SANDISK CORPORATION<\/p>\n

By ________________________________<\/p>\n

Name ______________________________<\/p>\n

Title _______________________________<\/p>\n<\/td>\n<\/tr>\n

\n

“SANDISK CAYMAN”<\/p>\n

SANDISK (CAYMAN) LIMITED<\/p>\n

By ________________________________<\/p>\n

Name ______________________________<\/p>\n

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

\n

“SANDISK IRELAND”<\/p>\n

SANDISK (IRELAND) LIMITED<\/p>\n

By ________________________________<\/p>\n

Name ______________________________<\/p>\n

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

[Signature page to Equipment Purchase Agreement]<\/p>\n

\n

21<\/p>\n

\n

\n<\/p>\n

Schedule 3.2<\/strong><\/p>\n<\/p>\n<\/p>\n\n\n\n
<\/td>\n\n

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

\n<\/p>\n<\/p>\n
\n<\/p>\n

Schedule 5.1<\/strong><\/p>\n<\/p>\n<\/p>\n

None.<\/p>\n<\/p>\n<\/p>\n

\n<\/p>\n

Schedule 6.3<\/strong><\/p>\n<\/p>\n<\/p>\n

Material Consents<\/strong><\/p>\n<\/p>\n<\/p>\n

Consent of all the lessor parties to the Assignment and Assumption Agreements
\nattached hereto as Exhibits A and C.<\/p>\n<\/p>\n<\/p>\n

\n<\/p><\/p>\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":[9613,9614],"class_list":["post-42285","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-sandisk-corp","corporate_contracts_industries-technology__hardware","corporate_contracts_types-operations","corporate_contracts_types-operations__equipment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42285","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=42285"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42285"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42285"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42285"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}