{"id":43972,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/underwriting-agreement-sandisk-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"underwriting-agreement-sandisk-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/underwriting-agreement-sandisk-corp.html","title":{"rendered":"Underwriting Agreement – SanDisk Corp."},"content":{"rendered":"

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

\n

$1,000,000,000
\n<\/strong>
\n<\/strong>aggregate principal amount of
\n1.5% Convertible Senior Notes due 2017<\/strong><\/p>\n

\n

UNDERWRITING AGREEMENT<\/strong><\/p>\n

\n

August 19, 2010<\/strong><\/p>\n<\/p>\n

August 19, 2010<\/p>\n

Morgan Stanley & Co. Incorporated
\nGoldman, Sachs & Co.<\/p>\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

c\/o<\/p>\n<\/td>\n

<\/td>\n\n

Morgan Stanley & Co. Incorporated
\n1585 Broadway
\nNew York, New York 10036<\/p>\n

Goldman, Sachs & Co.
\n200 West Street
\nNew York, New York 10282<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Ladies and Gentlemen:<\/p>\n

SanDisk Corporation, a Delaware corporation (the
\n“Company<\/strong>“), proposes to issue and sell to the several
\nunderwriters named in Schedule II hereto (the “Underwriters<\/strong>“),
\n$1,000,000,000 aggregate principal amount of its 1.5% Convertible Senior Notes
\ndue 2017 (the “Firm Securities<\/strong>“), to be issued pursuant to the
\nprovisions of an indenture to be dated as of August 25, 2010 (the
\n“Indenture<\/strong>“) between the Company and The Bank of New York
\nMellon Trust Company, N.A., as Trustee (the “Trustee<\/strong>“). The
\nCompany also proposes to issue and sell to the several Underwriters not more
\nthan an additional $150,000,000 aggregate principal amount of its 1.5%
\nConvertible Senior Notes due 2017 (the “Additional
\nSecurities<\/strong>“) if and to the extent that Morgan Stanley & Co.
\nIncorporated shall have determined to exercise, on behalf of the several
\nUnderwriters, the right to purchase such Additional Securities (or any portion
\nthereof) granted in Section 2 hereof. The Firm Securities and the Additional
\nSecurities are hereinafter collectively referred to as the
\n“Securities<\/strong>.” The Securities will be convertible into shares of
\ncommon stock of the Company, par value $0.001 per share (the “Common
\nStock<\/strong>“). The Common Stock into which the Securities are convertible are
\nhereinafter collectively referred to as the “Underlying
\nSecurities<\/strong>.”<\/p>\n

The Company has filed with the Securities and Exchange Commission (the
\n“Commission<\/strong>“) a registration statement, including a prospectus,
\non Form S 3 (File No. 333-157078) for registration under the Securities Act of
\n1933, as amended, (the “Securities Act<\/strong>“), of the Securities and
\nthe Underlying Securities (the “Shelf Securities<\/strong>“), and the
\noffering thereof from time to time in accordance with Rule 415. The registration
\nstatement including all documents incorporated by reference therein and as
\namended to the date of this Agreement, including the information (if any) deemed
\nto be part of the registration statement at the time of effectiveness pursuant
\nto Rule 430A or Rule 430B under the Securities Act, is hereinafter referred to
\nas the “Registration Statement<\/strong>,” and the related prospectus
\ncovering the Shelf Securities dated February 2, 2009 in the form first used to
\nconfirm sales of the Securities (or in the form first made available to the<\/p>\n

1<\/p>\n

\n

Underwriters by the Company to meet requests of purchasers pursuant to Rule
\n173 under the Securities Act) is hereinafter referred to as the “Basic
\nProspectus<\/strong>.” The Basic Prospectus, as supplemented by the prospectus
\nsupplement specifically relating to the Securities in the form first used to
\nconfirm sales of the Securities (or in the form first made available to the
\nUnderwriters by the Company to meet requests of purchasers pursuant to Rule 173
\nunder the Securities Act) is hereinafter referred to as the
\n“Prospectus<\/strong>,” and the term “preliminary
\nprospectus<\/strong>” means any preliminary form of the Prospectus. For purposes
\nof this Agreement, “free writing prospectus<\/strong>” has the meaning
\nset forth in Rule 405 under the Securities Act, “Time of Sale
\nProspectus<\/strong>” means the preliminary prospectus dated August 18, 2010
\ntogether with the free writing prospectuses, if any, each identified in Schedule
\nV hereto, and “broadly available road show<\/strong>” means a “bona fide
\nelectronic road show” as defined in Rule 433(h)(5) under the Securities Act that
\nhas been made available without restriction to any person. As used herein, the
\nterms “Registration Statement,” “preliminary prospectus,” “Time of Sale
\nProspectus” and Prospectus shall include the documents, if any, incorporated by
\nreference therein. The terms “supplement<\/strong>,”
\n“amendment<\/strong>,” and “amend<\/strong>” as used herein with
\nrespect to the Registration Statement, the Prospectus, the Time of Sale
\nProspectus, any preliminary prospectus or free writing prospectus shall include
\nall documents subsequently filed by the Company with the Commission pursuant to
\nthe Securities Exchange Act of 1934, as amended (the “Exchange
\nAct<\/strong>“), that are deemed to be incorporated by reference therein.<\/p>\n

1. Representations and Warranties<\/em>. The Company represents and
\nwarrants to and agrees with each of the Underwriters that:<\/p>\n

(a) The Registration Statement has become effective; no stop order suspending
\nthe effectiveness of the Registration Statement is in effect, and no proceedings
\nfor such purpose are pending before or, to the knowledge of the Company,
\nthreatened by the Commission. The Company is a well-known seasoned issuer (as
\ndefined in Rule 405 under the Securities Act) eligible to use the Registration
\nStatement as an automatic shelf registration statement and the Company has not
\nreceived notice that the Commission objects to the use of the Registration
\nStatement as an automatic shelf registration statement;<\/p>\n

(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange
\nAct and incorporated by reference in the Time of Sale Prospectus or the
\nProspectus complied or will comply when so filed in all material respects with
\nthe Exchange Act and the applicable rules and regulations of the Commission
\nthereunder, (ii) each part of the Registration Statement, when such part became
\neffective, did not contain, and each such part, as amended or supplemented, if
\napplicable, will not contain any untrue statement of a material fact or omit to
\nstate a material fact required to be stated therein or necessary to make the
\nstatements therein not misleading, (iii) the Registration Statement as of the
\ndate<\/p>\n

2<\/p>\n

\n

hereof does not contain any untrue statement of a material fact or omit to
\nstate a material fact required to be stated therein or necessary to make the
\nstatements therein not misleading, (iv) the Registration Statement and the
\nProspectus comply, and as amended or supplemented, if applicable, will comply in
\nall material respects with the Securities Act and the applicable rules and
\nregulations of the Commission thereunder, (v) the Time of Sale Prospectus does
\nnot, and at the time of each sale of the Securities in connection with the
\noffering when the Prospectus is not yet available to prospective purchasers and
\nat the Closing Date (as defined in Section 4), the Time of Sale Prospectus will
\nnot, contain any untrue statement of a material fact or omit to state a material
\nfact necessary to make the statements therein, in the light of the circumstances
\nunder which they were made, not misleading, (vi) each broadly available road
\nshow, if any, when considered together with the Time of Sale Prospectus, does
\nnot contain any untrue statement of a material fact or omit to state a material
\nfact necessary to make the statements therein, in the light of the circumstances
\nunder which they were made, not misleading and (vii) the Prospectus does not
\ncontain and, as amended or supplemented, if applicable, will not contain any
\nuntrue statement of a material fact or omit to state a material fact necessary
\nto make the statements therein, in the light of the circumstances under which
\nthey were made, not misleading, except that the representations and warranties
\nset forth in this paragraph do not apply to (A) statements or omissions in the
\nRegistration Statement, the Time of Sale Prospectus or the Prospectus based upon
\ninformation relating to any Underwriter furnished to the Company in writing by
\nsuch Underwriter through the Underwriters expressly for use therein or (B) that
\npart of the Registration Statement that constitutes the Statement of Eligibility
\n(Form T-1) under the Trust Indenture Act of 1939, as amended (the
\n“Trust Indenture Act<\/strong>“), of the Trustee;<\/p>\n

(c) The Company is not an “ineligible issuer” in connection with the offering
\nof the Securities pursuant to Rules 164, 405 and 433 under the Securities Act.
\nAny free writing prospectus that the Company is required to file pursuant to
\nRule 433(d) under the Securities Act has been, or will be, filed with the
\nCommission in accordance with the requirements of the Securities Act and the
\napplicable rules and regulations of the Commission thereunder. Each free writing
\nprospectus that the Company has filed, or is required to file, pursuant to Rule
\n433(d) under the Securities Act or that was prepared by or on behalf of or used
\nor referred to by the Company complies or will comply in all material respects
\nwith the requirements of the Securities Act and the applicable rules and
\nregulations of the Commission thereunder. Except for the free writing
\nprospectuses, if any, identified in Schedule I hereto, and electronic road shows
\neach furnished to the Underwriters before first use, the Company has not
\nprepared, used or referred to, and will not, without your prior consent,
\nprepare, use or refer to, any free writing prospectus;<\/p>\n

3<\/p>\n

\n

(d) Neither the Company nor any of its subsidiaries has sustained since the
\ndate of the latest audited financial statements included or incorporated by
\nreference in the Time of Sale Prospectus any material loss or interference with
\nits business from fire, explosion, flood or other calamity, whether or not
\ncovered by insurance, or from any labor dispute or court or governmental action,
\norder or decree, otherwise than as set forth or contemplated in the Time of Sale
\nProspectus; and, since the respective dates as of which information is given in
\nthe Time of Sale Prospectus, there has not been any change in the capital stock
\n(other than upon the issuance or exercise of shares, stock options or stock
\npurchase rights granted in the ordinary course of business pursuant to the
\nCompany153s existing stock option and stock purchase plans) or long-term debt of
\nthe Company or any of its subsidiaries or any material adverse change, or any
\ndevelopment specifically related to the Company or its industry that would be
\nreasonably likely to result in a material adverse change, in the general
\naffairs, management, financial position, stockholders153 equity or results of
\noperations of the Company and its subsidiaries, taken as a whole (a
\n“Material Adverse Effect<\/strong>“), otherwise than as set forth or
\ncontemplated in the Prospectus;<\/p>\n

(e) Except as described in the Time of Sale Prospectus, neither the Company
\nnor its subsidiaries owns any real property. The Company and its subsidiaries
\nhave good and marketable title to all personal property owned by them, in each
\ncase free and clear of all liens, encumbrances and defects except such as are
\ndescribed in the Time of Sale Prospectus or such as do not materially affect the
\nvalue of such property and do not interfere with the use made and proposed to be
\nmade of such property by the Company and its subsidiaries; and any real property
\nand buildings held under lease by the Company and its subsidiaries are held by
\nthem under valid, subsisting and enforceable leases with such exceptions as are
\nnot material and do not interfere with the use made and proposed to be made of
\nsuch property and buildings by the Company and its subsidiaries;<\/p>\n

(f) The Company has been duly incorporated, is validly existing as a
\ncorporation in good standing under the laws of the State of Delaware, has the
\ncorporate power and authority to own its property and to conduct its business as
\ndescribed in the Time of Sale Prospectus and is duly qualified to transact
\nbusiness and is in good standing in each jurisdiction in which the conduct of
\nits business or its ownership or leasing of property requires such
\nqualification, except to the extent that the failure to be so qualified or be in
\ngood standing would not have a Material Adverse Effect; each domestic subsidiary
\nof the Company has been duly incorporated or organized, as the case may be, and
\nis validly existing in good standing under the laws of its jurisdiction of
\nincorporation or organization; each foreign subsidiary of the Company has been
\nduly incorporated or organized, as the case may be, and is validly existing in
\ngood standing under the laws of its jurisdiction of incorporation or<\/p>\n

4<\/p>\n

\n

organization; and, except for Flash Partners, Ltd., Flash Alliance, Ltd.,
\nSanDisk Manufacturing and SanDisk International Limited, none of the Company153s
\nsubsidiaries are “significant subsidiaries” within the meaning of Section
\n1.02(w) of Regulation S-X under the rules and regulations of the Commission;\n<\/p>\n

(g) The Company has an authorized capitalization as set forth in the Time of
\nSale Prospectus, and all of the issued shares of capital stock of the Company
\nhave been duly and validly authorized and issued, are fully paid and
\nnon-assessable and conform to the description of such capital stock contained in
\nthe Time of Sale Prospectus; and all of the issued shares of capital stock of
\neach subsidiary of the Company have been duly and validly authorized and issued,
\nare fully paid and non-assessable and are, except for Flash Partners, Ltd.,
\nFlash Alliance, Ltd. and Rising Silicon, Inc., owned directly or indirectly by
\nthe Company, free and clear of all liens, encumbrances, equities or claims,
\nother than director qualifying shares;<\/p>\n

(h) This Agreement has been duly authorized, executed and delivered by the
\nCompany;<\/p>\n

(i) The Indenture has been duly qualified under the Trust Indenture Act and
\nhas been duly authorized, executed and delivered by, and is a valid and binding
\nagreement of, the Company, enforceable in accordance with its terms, subject to
\napplicable bankruptcy, insolvency and similar laws affecting creditors153 rights
\ngenerally and equitable principles of general applicability;<\/p>\n

(j) The Securities have been duly authorized and, when executed and
\nauthenticated in accordance with the provisions of the Indenture and delivered
\nto and paid for by the Underwriters in accordance with the terms of this
\nAgreement, will be valid and binding obligations of the Company, will conform to
\nthe “Description of the Notes” section in the Time of Sale Prospectus, and in
\neach case, enforceable in accordance with their terms, subject to applicable
\nbankruptcy, insolvency and similar laws affecting creditors153 rights generally
\nand equitable principles of general applicability, and will be entitled to the
\nbenefits of the Indenture;<\/p>\n

(k) The Underlying Securities issuable upon conversion of the Securities have
\nbeen duly authorized and reserved and, when issued upon conversion of the
\nSecurities in accordance with the terms of the Securities, will be validly
\nissued, fully paid and non-assessable, and the issuance of the Underlying
\nSecurities will not be subject to any preemptive or similar rights;<\/p>\n

(l) There are no contracts, agreements or understandings between the Company
\nand any person granting such person the right to<\/p>\n

5<\/p>\n

\n

require the Company to file a registration statement under the Securities Act
\nwith respect to any of the securities of the Company or to require the Company
\nto include such securities with the Securities registered pursuant to the
\nRegistration Statement;<\/p>\n

(m) The issue and sale of the Securities by the Company and the compliance by
\nthe Company with all of the provisions of this Agreement, the Indenture and the
\nSecurities and the consummation of the transactions contemplated hereby or
\nthereby will not conflict with or result in a breach or violation of any of the
\nterms or provisions of, or constitute a default under, any indenture, mortgage,
\ndeed of trust, loan agreement or other agreement or instrument to which the
\nCompany or any of its subsidiaries is a party or by which the Company or any of
\nits subsidiaries is bound or to which any of the property or assets of the
\nCompany or any of its subsidiaries is subject, nor will such action result in
\nany violation of the provisions of the certificate of incorporation or by-laws
\nof the Company or any statute or any order, rule or regulation of any court or
\ngovernmental agency or body having jurisdiction over the Company or any of its
\nsubsidiaries or any of their properties; and no consent, approval,
\nauthorization, order, registration or qualification of or with any such court or
\ngovernmental agency or body is required for the issue and sale of the Securities
\nor the consummation by the Company of the transactions contemplated by this
\nAgreement, the Indenture and the Securities, except the registration under the
\nExchange Act and the Securities Act of the Securities, the qualification of the
\nIndenture under the Trust Indenture Act and such consents, approvals,
\nauthorizations, registrations or qualifications as may be required under state
\nsecurities or Blue Sky laws in connection with the purchase and distribution of
\nthe Securities by the Underwriters;<\/p>\n

(n) Neither the Company nor any of its subsidiaries is (A) in violation of
\nits certificate of incorporation or by-laws (or similar such documents) or (B)
\nin default in the performance or observance of any material obligation,
\nagreement, covenant or condition contained in any indenture, mortgage, deed of
\ntrust, loan agreement, lease or other agreement or instrument to which it is a
\nparty or by which it or any of its properties may be bound, except, with respect
\nto (B), for defaults that would not have a Material Adverse Effect;<\/p>\n

(o) The statements set forth in the Prospectus under the caption “Description
\nof the Notes,” insofar as they purport to constitute a summary of the material
\nterms of the Securities, under the caption “Description of Capital Stock,”
\ninsofar as they purport to constitute a summary of the terms of the Underlying
\nSecurities, and under the caption “Underwriting,” insofar as it purports to
\ndescribe the provisions of the documents referred to therein, are accurate,
\ncomplete and fair;<\/p>\n

6<\/p>\n

\n

(p) Other than as set forth in the Time of Sale Prospectus, there are no
\nlegal or governmental proceedings pending to which the Company or any of its
\nsubsidiaries is a party or of which any property of the Company or any of its
\nsubsidiaries is the subject that would be reasonably likely to have a Material
\nAdverse Effect; and, to the best of the Company153s knowledge, no such proceedings
\nare threatened by governmental authorities or others (other than counterclaims
\nrelated to existing litigation) that would be reasonably likely to result in a
\nMaterial Adverse Effect;<\/p>\n

(q) The Company is not, and after giving effect to the offering and sale of
\nthe Securities and the application of the proceeds thereof as described in the
\nProspectus will not be, required to register as an “investment company” as such
\nterm is defined in the Investment Company Act of 1940, as amended;<\/p>\n

(r) The interests in Flash Partners, Ltd. and Flash Alliance, Ltd. held by
\nthe Company have been validly authorized and issued and are owned by the
\nCompany, free and clear of all liens, encumbrances, equities or claims (other
\nthan transfer restrictions contained in the following agreements between the
\nCompany and Toshiba Corporation: (i) the Flash Partners Master Agreement, dated
\nas of September 10, 2004 (the “Flash Partners Master
\nAgreement<\/strong>“), (ii) the Master Operative Documents as defined in the
\nFlash Partners Master Agreement), (iii) the Flash Alliance Master Agreement,
\ndated as of July 7, 2006 (the “Flash Alliance Master
\nAgreement<\/strong>“), and (iv) the Master Operative Documents as defined in the
\nFlash Alliance Master Agreement);<\/p>\n

(s) Except as disclosed in the Time of Sale Prospectus, the Company and each
\nof its subsidiaries are insured by insurers of recognized financial
\nresponsibility against such losses and risks and in such amounts as are prudent
\nand customary in the businesses in which they are engaged; neither the Company
\nnor any such subsidiary has been refused any insurance coverage sought or
\napplied for; and neither the Company nor any such subsidiary has any reason to
\nbelieve that it will not be able to renew its existing insurance coverage as and
\nwhen such coverage expires or to obtain similar coverage from similar insurers
\nat a cost that would not, in the aggregate, have a Material Adverse Effect,
\nexcept as described in or contemplated by the Time of Sale Prospectus;<\/p>\n

(t) The Company and its subsidiaries (other than Flash Partners, Ltd. and
\nFlash Alliance, Ltd.) and, to the Company153s knowledge, Flash Partners, Ltd. and
\nFlash Alliance, Ltd., (i) are in compliance with any and all applicable foreign,
\nfederal, state and local laws and regulations relating to the protection of
\nhuman health and safety, the environment or hazardous or toxic substances or
\nwastes, pollutants or contaminants (“Environmental Laws<\/strong>“), (ii)
\nhave received all permits, licenses or other<\/p>\n

7<\/p>\n

\n

approvals required of them under applicable Environmental Laws to conduct
\ntheir respective businesses and (iii) are in compliance with all terms and
\nconditions of any such permit, license or approval, except where such
\nnoncompliance with Environmental Laws, failure to receive required permits,
\nlicenses or other approvals or failure to comply with the terms and conditions
\nof such permits, licenses or approvals would not, singly or in the aggregate,
\nhave a Material Adverse Effect;<\/p>\n

(u) The costs or liabilities of the Company and its subsidiaries (other than
\nFlash Partners, Ltd. and Flash Alliance, Ltd. and, to the Company153s knowledge,
\nFlash Partners, Ltd. and Flash Alliance, Ltd., if any, associated with
\nEnvironmental Laws (including, without limitation, any capital or operating
\nexpenditures required for clean up, closure of properties or compliance with
\nEnvironmental Laws or any permit, license or approval, any related constraints
\non operating activities and any potential liabilities to third parties) are not
\nreasonably likely, singly or in the aggregate, to have a Material Adverse
\nEffect;<\/p>\n

(v) Except as described in the Time of Sale Prospectus, to the best knowledge
\nof the Company, the Company and each of its subsidiaries owns or possesses or
\ncan acquire on reasonable terms all material licenses or other rights to use all
\npatents, copyrights, trademarks, service marks, trade names, mask work rights,
\ntechnology and know-how necessary to conduct its business in the manner
\ndescribed in the Time of Sale Prospectus and, neither the Company nor any of its
\nsubsidiaries has received any notice of infringement or conflict with (and
\nneither the Company nor any of its subsidiaries knows of any infringement or
\nconflict with) asserted rights of others with respect to any patents,
\ncopyrights, trademarks, service marks, trade names, mask work rights, technology
\nor know-how which are reasonably likely to individually or in the aggregate,
\nresult in a Material Adverse Effect; and, except as disclosed in the Time of
\nSale Prospectus, the discoveries, inventions, products or processes of the
\nCompany and its subsidiaries referred to in the Time of Sale Prospectus do not,
\nto the best knowledge of the Company or any of its subsidiaries, infringe or
\nconflict with any right or patent of any third party, or any discovery,
\ninvention, product or process which is the subject of a patent application filed
\nby any third party, known to the Company or any of its subsidiaries which are
\nreasonably likely to have a Material Adverse Effect;<\/p>\n

(w) The Company and each of its subsidiaries maintain a system of internal
\ncontrol over financial reporting (as such term is defined in Rule 13a-15(f)
\nunder the Exchange Act) that complies with the requirements of the Exchange Act
\nand has been designed by the Company153s principal executive officer and principal
\nfinancial officer, or under their supervision, to provide reasonable assurance
\nregarding the reliability of financial reporting and the preparation of
\nfinancial statements<\/p>\n

8<\/p>\n

\n

for external purposes in accordance with generally accepted accounting
\nprinciples;<\/p>\n

(x) No material labor dispute with the employees (as a group) of the Company
\nor any of its subsidiaries, taken as a whole, exists, except as described in or
\ncontemplated by the Time of Sale Prospectus, or, to the knowledge of the
\nCompany, is imminent; and the Company is not aware of any existing, threatened
\nor imminent labor disturbance by the employees of any of its principal
\nsuppliers, manufacturers or contractors that could result in a Material Adverse
\nEffect;<\/p>\n

(y) The Rights Agreement, dated as of September 15, 2003 (the
\n“Rights Agreement<\/strong>“), between the Company and Computershare
\nTrust Company, Inc. has been duly authorized, executed and delivered by the
\nCompany; the rights (the “Rights<\/strong>“) to purchase one
\ntwo-hundredth of a share of Series A Junior Participating Preferred Stock for
\n$225.00 pursuant to the terms of the Rights Agreement have been duly authorized
\nby the Company; and the Series A Junior Participating Preferred Stock has been
\nduly authorized by the Company and validly reserved for issuance and, upon
\nexercise of the Rights when issued in accordance with the terms of the Rights
\nAgreement, will be validly issued, fully paid and non-assessable;<\/p>\n

(z) Except as described in the Time of Sale Prospectus, there are no material
\noff-balance sheet transactions, arrangements, obligations (including contingent
\nobligations) or any other relationships with unconsolidated entities or other
\npersons, that may have a material current or future effect on the Company153s
\nfinancial condition, changes in financial condition, results of operations,
\nliquidity, capital expenditures, capital resources, or significant components of
\nrevenues or expenses;<\/p>\n

(aa) To the best of the Company153s knowledge after due inquiry, Ernst &
\nYoung LLP, who has certified certain financial statements of the Company, whose
\nreport is incorporated by reference in the Time of Sale Prospectus and who will
\ndeliver at each Time of Delivery the letter or letters referred to in Section
\n5(m) hereof, is an independent registered public accounting firm as required by
\nthe Securities Act and the Rules and Regulations. Except as described in the
\nProspectus and as preapproved in accordance with the requirements set forth in
\nSection 10A of the Exchange Act, Ernst & Young LLP has not engaged in any
\n“prohibited activities” (as defined in Section 10A of the Exchange Act) on
\nbehalf of the Company;<\/p>\n

(bb) No relationship, direct or indirect, exists between or among the Company
\non the one hand, and the directors, officers, stockholders, customers or
\nsuppliers of the Company on the other hand, which is required to be described in
\nthe Time of Sale Prospectus which is not so<\/p>\n

9<\/p>\n

\n

described. The Company has not, directly or indirectly, including through any
\nsubsidiary, extended or maintained credit, or arranged for the extension of
\ncredit, or renewed any extension of credit, in the form of a personal loan to or
\nfor any of its directors or executive officers in violation of the
\nSarbanes-Oxley Act of 2002;<\/p>\n

(cc) The Company has established and maintains disclosure controls and
\nprocedures (as such term is defined in Rule 13a-15(e) under the Exchange Act),
\nthat comply with the requirements of the Exchange Act; such disclosure controls
\nand procedures (i) have been designed to ensure that material information
\nrelating to the Company, including its consolidated subsidiaries, is made known
\nto the Company153s principal executive officer and its principal financial officer
\nby others within those entities, particularly during the periods in which the
\nperiodic reports required under the Exchange Act are being prepared; (ii) have
\nbeen evaluated for effectiveness as of the end of the Company153s last completed
\nfiscal quarter; and (iii) are effective in all material respects to perform the
\nfunctions for which they were established;<\/p>\n

(dd) Based on its most recent evaluation of its internal control over
\nfinancial reporting, the Company is not aware of (i) any significant deficiency
\nor material weakness in the design or operation of its internal control over
\nfinancial reporting which is reasonably likely to adversely affect the Company153s
\nability to record, process, summarize and report financial data; or (ii) any
\nfraud, whether or not material, that involves management or other employees who
\nhave a significant role in the Company153s internal control over financial
\nreporting;<\/p>\n

(ee) Since the date of the most recent evaluation of its internal controls
\nover financial reporting, there have been no significant changes in the
\nCompany153s internal controls over financial reporting that are reasonably likely
\nto materially affect the Company153s internal controls, over financial reporting;\n<\/p>\n

(ff) The Company153s Board of Directors has validly appointed an audit
\ncommittee whose composition satisfies the listing requirements of the NASDAQ
\nGlobal Select Market (“NASDAQ<\/strong>“) and the Board of Directors
\nand\/or the audit committee has adopted a charter that satisfies the requirements
\nof NASDAQ. The audit committee has reviewed the adequacy of its charter within
\nthe past twelve months;<\/p>\n

(gg) Except as described in the Time of Sale Prospectus, each of the Company
\nand its subsidiaries (i) has made or filed all material foreign, federal, state,
\nlocal and provincial income and all other tax returns, reports and declarations
\nrequired to be made or filed by it by any jurisdiction to which it is subject,
\n(ii) has paid all taxes and other governmental assessments and charges that are
\nmaterial in amount, due (whether or not<\/p>\n

10<\/p>\n

\n

shown as due) and payable by it on such returns, reports, and declarations,
\nexcept those being contested in good faith for which adequate reserves have been
\naccrued on the Company153s latest balance sheet and (iii) has set aside on its
\nbooks provisions reasonably adequate for the payment of all taxes for periods
\nsubsequent to the periods to which such returns, reports or declarations apply
\nand which such taxes are not yet due and payable. There are no unpaid taxes in
\nany material amount claimed to be due by the taxing authority of any
\njurisdiction. There are no material liens with respect to any taxes upon any of
\nthe assets or properties of the Company or any of its subsidiaries other than
\nfor taxes that are not yet due and payable;<\/p>\n

(hh) Neither the Company nor any of its subsidiaries (other than, to the
\nCompany153s knowledge, Flash Partners, Ltd. and Flash Alliance, Ltd.) nor any
\ndirector or officer of the Company, nor, to the Company153s knowledge, any
\naffiliate, employee or agent of the Company or of any of its subsidiaries or
\naffiliates (other than, to the Company153s knowledge, Flash Partners, Ltd. and
\nFlash Alliance, Ltd.), has taken any action in furtherance of an offer, payment,
\npromise to pay, or authorization or approval of the payment or giving of money,
\nproperty, gifts or anything else of value, directly or indirectly, to any
\ngovernment official (including any officer or employee of a government or
\ngovernment-owned or controlled entity or of a public international organization,
\nor any person acting in an official capacity for or on behalf of any of the
\nforegoing, or any political party or party official or candidate for political
\noffice) to influence official action or secure an improper advantage; and the
\nCompany and its subsidiaries and affiliates have conducted their businesses in
\ncompliance with applicable anti-corruption laws and have instituted and
\nmaintained policies and procedures designed to promote and achieve compliance
\nwith such laws;<\/p>\n

(ii) The operations of the Company and its subsidiaries are and have been
\nconducted at all times in material compliance with all applicable financial
\nrecordkeeping and reporting requirements, including those of the Bank Secrecy
\nAct, as amended by Title III of the Uniting and Strengthening America by
\nProviding Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
\n2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of
\njurisdictions where the Company and its subsidiaries conduct business, the rules
\nand regulations thereunder and any related or similar applicable rules,
\nregulations or guidelines, issued, administered or enforced by any governmental
\nagency (collectively, the “Anti-Money Laundering Laws<\/strong>“), and no
\naction, suit or proceeding by or before any court or governmental agency,
\nauthority or body or any arbitrator involving the Company or any of its
\nsubsidiaries with respect to the Anti-Money Laundering Laws is pending or, to
\nthe best knowledge of the Company, threatened; and<\/p>\n

11<\/p>\n

\n

(jj) (i) Neither the Company nor any of its subsidiaries, nor any director or
\nofficer of the Company, nor, to the Company153s knowledge, any employee, agent or
\naffiliate of the Company or any of its subsidiaries, is an individual or entity
\n(“Person<\/strong>“) that is, or is owned or controlled by a Person that
\nis:<\/p>\n

(A) the subject of any sanctions administered or enforced by the U.S.
\nDepartment of Treasury153s Office of Foreign Assets Control
\n(“OFAC<\/strong>“), the United Nations Security Council
\n(“UNSC<\/strong>“), the European Union (“EU<\/strong>“), Her
\nMajesty153s Treasury (“HMT<\/strong>“), or other relevant sanctions
\nauthority (collectively, “Sanctions<\/strong>“), nor<\/p>\n

(B) located, organized or resident in a country or territory that is the
\nsubject of Sanctions (including, without limitation, Burma\/Myanmar, Cuba, Iran,
\nNorth Korea, Sudan and Syria).<\/p>\n

(ii) The Company represents and covenants that it will not, directly or
\nindirectly, use the proceeds of the offering, or lend, contribute or otherwise
\nmake available such proceeds to any subsidiary, joint venture partner or other
\nPerson:<\/p>\n

(A) for the purpose of funding or facilitating any activities or business of
\nor with any Person or in any country or territory that, at the time of such
\nfunding or facilitation, is the subject of Sanctions; or<\/p>\n

(B) for any other purpose that will result in a violation of Sanctions by any
\nPerson (including any Person participating in the offering, whether as
\nunderwriter, advisor, investor or otherwise).<\/p>\n

(iii) The Company represents and covenants that for the past 5 years, it and
\nits subsidiaries have not knowingly engaged in, and are not now knowingly
\nengaged in any dealings or transactions with any Person, or in any country or
\nterritory, that at the time of the dealing or transaction is or was the subject
\nof Sanctions.<\/p>\n

2. Agreements to Sell and Purchase<\/em>. The Company hereby agrees to
\nsell to the several Underwriters, and each Underwriter, upon the basis of the
\nrepresentations and warranties herein contained, but subject to the conditions
\nhereinafter stated, agrees, severally and not jointly, to purchase from the
\nCompany the respective principal amounts of Firm Securities set forth in
\nSchedule II hereto opposite its name at a price equal to 98.25% of the principal
\namount thereof (the “Purchase Price<\/strong>“) plus accrued interest, if
\nany, from August 25, 2010 to the Closing Date.<\/p>\n

On the basis of the representations and warranties contained in this
\nAgreement, and subject to its terms and conditions, the Company agrees to issue\n<\/p>\n

12<\/p>\n

\n

and sell to the Underwriters the Additional Securities, and the Underwriters
\nshall have the right to purchase, severally and not jointly, up to $150,000,000
\naggregate principal amount of Additional Securities at the Purchase Price plus
\naccrued interest, if any, to the date of payment and delivery. The Underwriters
\nmay exercise these rights in whole or from time to time in part by giving
\nwritten notice of each election to exercise the foregoing option not later than
\n30 days after the date of this Agreement. Any exercise notice shall specify the
\nprincipal amount of Additional Securities to be purchased by the Underwriters
\nand the date on which such Additional Securities are to be purchased. Each
\npurchase date must be at least one business day after the written notice is
\ngiven and may not be earlier than the Closing Date for the Firm Securities nor
\nlater than ten business days after the date of such notice. Additional
\nSecurities may be purchased as provided in Section 2 hereof solely for the
\npurpose of covering over allotments made in connection with the offering of the
\nFirm Securities. On each day, if any, that Additional Securities are to be
\npurchased (each an “Option Closing Date<\/strong>“), each Underwriter
\nagrees, severally and not jointly, to purchase the principal amount of
\nAdditional Securities (subject to such adjustments to eliminate fractional
\nsecurities as you may determine) that bears the same proportion to the total
\nnumber of Additional Securities to be purchased on such Option Closing Date as
\nthe principal amount of Firm Securities set forth in Schedule II hereto opposite
\nthe name of such Underwriter bears to the total principal amount of Firm
\nSecurities.<\/p>\n

The Company hereby agrees that, without the written consent of Morgan Stanley
\n& Co. Incorporated and Goldman, Sachs & Co., on behalf of the
\nUnderwriters, it will not, during the period ending 90 days after the date of
\nthe Prospectus, (i) offer, pledge, sell, contract to sell, sell any option or
\ncontract to purchase, purchase any option or contract to sell, grant any option,
\nright or warrant to purchase, lend, or otherwise transfer or dispose of,
\ndirectly or indirectly, any shares of Common Stock or any securities convertible
\ninto or exercisable or exchangeable for Common Stock, (ii) file any registration
\nstatement with the Commission relating to the offering of any shares of Common
\nStock or (iii) enter into any swap or other arrangement that transfers to
\nanother, in whole or in part, any of the economic consequences of ownership of
\nthe Common Stock, whether any such transaction described in clause (i), (ii) or
\n(iii) above is to be settled by delivery of Common Stock or such other
\nsecurities, in cash or otherwise.<\/p>\n

The foregoing paragraph shall not apply to (i) the Securities to be sold
\nhereunder or the Underlying Securities, (ii) the issuance by the Company of
\nshares of Common Stock upon the exercise of an option or warrant or the
\nconversion of a security outstanding on the date hereof and as described in the
\nProspectus (or filing a registration statement with the Commission related to
\nthe issuance or resale of such Common Stock), (iii) the issuance by the Company
\nof any shares of Common Stock, options or other securities to or for the benefit
\nof employees, consultants or directors of the Company on or after the date
\nhereof pursuant to the Company153s employee stock ownership plan or equity
\nincentive<\/p>\n

13<\/p>\n

\n

plans as described in the Time of Sale Prospectus or the Registration
\nStatement and the issuance by the Company of shares of Common Stock upon the
\nexercise of any such options or other securities (or filing a registration
\nstatement with the Commission related to the issuance or resale of such Common
\nStock); (iv) pursuant to the convertible note hedge and warrant transactions as
\ndescribed in the Prospectus or (v) any issuances in connection with bona
\nfide <\/em>acquisitions in an aggregate amount that does not exceed 7% of the
\nCompany153s capital stock on a fully diluted basis as of the date hereof.<\/p>\n

If:<\/p>\n

(1) during the last 17 days of the 90-day restricted period described in the
\nthird paragraph of this Section 2, the Company issues an earnings release or
\nmaterial news or a material event relating to the Company occurs; or<\/p>\n

(2) prior to the expiration of the 90-day restricted period described in the
\nthird paragraph of this Section 2, the Company announces that it will release
\nearnings results during the 16 day period beginning on the last day of the
\nrestricted period; and in each case<\/p>\n

(3) at the end of the 90-day restricted period described in the third
\nparagraph of this Section 2, (i) the Company153s shares are not “actively traded
\nsecurities” as such term is defined in Regulation M under the Securities Act or
\n(ii) the Underwriters are not able to publish or distribute research reports
\nconcerning the Company or its industry pursuant to Rule 139 of the Securities
\nAct,<\/p>\n

then the restrictions imposed by this Agreement shall continue to apply until
\nthe expiration of the 18 day period beginning on the issuance of the earnings
\nrelease or the occurrence of the material news or material event.<\/p>\n

3. Public Offering<\/em>. The Company is advised by the Underwriters that
\nthey propose to make a public offering of their respective portions of the
\nSecurities as soon after this Agreement has been executed as in the
\nUnderwriters153 judgment is advisable. The Company is further advised by the
\nUnderwriters that the Securities are to be offered to the public upon the terms
\nset forth in the Prospectus.<\/p>\n

4. Payment and Delivery<\/em>. Payment for the Firm Securities shall be
\nmade to the Company in Federal (same-day) funds to the account specified by the
\nCompany to Morgan Stanley & Co. Incorporated at least forty-eight hours in
\nadvance. The time and date of the delivery of the Securities and such payment
\nshall be the closing date and time set forth in Schedule I hereto, or at such
\nother time on the same or such other date, not later than the fifth business day
\nthereafter, as may be agreed by you and the Company in writing. The time and
\ndate of such payment are hereinafter referred to as the “Closing
\nDate<\/strong>.”<\/p>\n

Payment for the Firm Securities shall be made against delivery to Morgan
\nStanley & Co. Incorporated on the Closing Date for the respective accounts
\nof the<\/p>\n

14<\/p>\n

\n

several Underwriters of the Firm Securities registered in such names and in
\nsuch denominations as Morgan Stanley & Co. Incorporated shall request in
\nwriting not less than one full business day prior to the Closing Date, with any
\ntransfer taxes payable in connection with the transfer of the Firm Securities to
\nthe Underwriters duly paid.<\/p>\n

Payment for any Additional Securities shall be made to the Company in Federal
\n(same-day) funds to the account specified by the Company to Morgan Stanley &
\nCo. Incorporated at least forty-eight hours in advance of each Option Closing
\nDate. Such payment shall be against delivery of such Additional Securities for
\nthe respective accounts of the several Underwriters at 10:00 a.m., New York City
\ntime, on the date specified in the corresponding notice described in Section 2
\nor at such other time on the same or on such other date, in any event not later
\nthan October 1, 2010, as shall be designated in writing by you.<\/p>\n

Payment for the Additional Securities shall be made against delivery to
\nMorgan Stanley & Co. Incorporated on each Option Closing Date for the
\nrespective accounts of the several Underwriters of the Additional Securities
\nregistered in such names and in such denominations as you shall request in
\nwriting not less than one full business day prior to the relevant Option Closing
\nDate, with any transfer taxes payable in connection with the transfer of the
\nAdditional Securities to the Underwriters duly paid.<\/p>\n

The Firm Securities and Additional Securities shall be in definitive form or
\nglobal form, as specified by Morgan Stanley & Co. Incorporated, and in such
\ndenominations as Morgan Stanley & Co. Incorporated shall request in writing
\nnot later than one full business day prior to the Closing Date or the applicable
\nOption Closing Date, as the case may be. The Firm Securities and Additional
\nSecurities shall be delivered to Morgan Stanley & Co. Incorporated on the
\nClosing Date or an Option Closing Date, as the case may be, for the respective
\naccounts of the several Underwriters, with any transfer taxes payable in
\nconnection with the transfer of the Securities to the Underwriters duly paid,
\nagainst payment of the Purchase Price therefor plus accrued interest, if any, to
\nthe date of payment and delivery.<\/p>\n

5. Conditions to the Underwriters153 Obligations<\/em>. The several
\nobligations of the Underwriters are subject to the following conditions:<\/p>\n

(a) Subsequent to the execution and delivery of this Agreement and prior to
\nthe Closing Date:<\/p>\n

(i) there shall not have occurred any downgrading, nor shall any notice have
\nbeen given of any intended or potential downgrading or of any review for a
\npossible change that does not indicate the direction of the possible change, in
\nthe rating accorded the Company or any of the securities of the Company or any
\nof its subsidiaries or in the rating outlook<\/p>\n

15<\/p>\n

\n

for the Company by any “nationally recognized statistical rating
\norganization,” as such term is defined for purposes of Rule 436(g)(2) under the
\nSecurities Act; and<\/p>\n

(ii) there shall not have occurred any change, or any development involving a
\nprospective change, in the condition, financial or otherwise, or in the
\nearnings, business or operations of the Company and its subsidiaries, taken as a
\nwhole, from that set forth in the Time of Sale Prospectus that, in your
\njudgment, is material and adverse and that makes it, in your judgment,
\nimpracticable to market the Securities on the terms and in the manner
\ncontemplated in the Time of Sale Prospectus.<\/p>\n

(b) The Underwriters shall have received on the Closing Date a certificate,
\ndated the Closing Date and signed by an executive officer of the Company, to the
\neffect set forth in Section 5(a)(i) above and to the effect that the
\nrepresentations and warranties of the Company contained in this Agreement are
\ntrue and correct as of the Closing Date and that the Company has complied with
\nall of the agreements and satisfied all of the conditions on its part to be
\nperformed or satisfied hereunder on or before the Closing Date. The officer
\nsigning and delivering such certificate may rely upon the best of his or her
\nknowledge as to proceedings threatened.<\/p>\n

(c) The Prospectus shall have been filed with the Commission pursuant to Rule
\n424(b) under the Securities Act within the applicable time period prescribed for
\nsuch filing by the rules and regulations under the Securities Act; the final
\nterm sheet substantially in the form of Schedule I hereto, and any material
\nrequired to be filed by the Company pursuant to Rule 433(d) under the Securities
\nAct, shall have been filed with the Commission within the applicable time
\nperiods prescribed for such filings by Rule 433; no stop order suspending the
\neffectiveness of the Registration Statement or any part thereof shall have been
\nissued and no proceeding for that purpose shall have been initiated or
\nthreatened by the Commission and no notice of objection of the Commission to the
\nuse of the Registration Statement or any post-effective amendment thereto
\npursuant to Rule 401(g)(2) under the Securities Act shall have been received; no
\nstop order suspending or preventing the use of the Prospectus or any Issuer Free
\nWriting Prospectus shall have been initiated or threatened by the Commission;
\nand all requests for additional information on the part of the Commission shall
\nhave been complied with to your reasonable satisfaction.<\/p>\n

(d) The Underwriters shall have received on the Closing Date an opinion of
\nJones Day, outside counsel for the Company, dated the Closing Date, in the form
\nattached hereto as Exhibit I;<\/p>\n

16<\/p>\n

\n

(e) The Underwriters shall have received on the Closing Date an opinion of
\nJones Day, special Japanese counsel for the Company, dated the Closing Date, in
\nthe form attached hereto as Exhibit II;<\/p>\n

(f) The Underwriters shall have received on the Closing Date an opinion of
\nA&L Goodbody, special Irish counsel for the Company, dated the Closing Date,
\nin the form attached hereto as Exhibit III;<\/p>\n

(g) The Underwriters shall have received on the Closing Date an opinion of
\nJames F. Brelsford, Chief Legal Officer of the Company, dated the Closing Date,
\nin the form attached hereto as Exhibit IV;<\/p>\n

(h) The Underwriters shall have received on the Closing Date an opinion of
\nSimpson Thacher & Bartlett LLP, counsel for the Underwriters, dated the
\nClosing Date, with respect to such matters as you may reasonably request, and
\nsuch counsel shall have received such papers and information as they may
\nreasonably request to enable them to pass upon such matters;<\/p>\n

(i) The Underwriters shall have received, on each of the date hereof and the
\nClosing Date, a letter dated the date hereof or the Closing Date, as the case
\nmay be, in form and substance satisfactory to the Underwriters, from Ernst &
\nYoung LLP, an independent registered public accounting firm, containing
\nstatements and information of the type ordinarily included in accountants153
\n“comfort letters” to underwriters with respect to the financial statements and
\ncertain financial information contained in the Registration Statement, the Time
\nof Sale Prospectus and the Prospectus; provided <\/em>that the letter
\ndelivered on the Closing Date shall use a “cut off date” not earlier than the
\ndate hereof.<\/p>\n

(j) The “lock-up” agreements, each substantially in the form of Exhibit A
\nhereto, between you and all of the executive officers and directors of the
\nCompany listed on Schedule IV hereto relating to sales and certain other
\ndispositions of shares of Common Stock or certain other securities, delivered to
\nyou on or before the date hereof, shall be in full force and effect on the
\nClosing Date.<\/p>\n

(k) The Underlying Securities issuable upon conversion of the Securities
\nshall have been approved for supplemental listing on NASDAQ, subject to notice
\nof issuance.<\/p>\n

(l) The Securities shall be eligible for clearance and settlement through
\nDTC.<\/p>\n

(m) The Underwriters shall have received on the Closing Date such documents
\nas you may reasonably request with respect to the good standing of the Company,
\nthe due authorization and issuance of the Securities and other matters related
\nto the issuance of the Securities.<\/p>\n

17<\/p>\n

\n

The several obligations of the Underwriters to purchase Additional Securities
\nhereunder are subject to delivery to you on the applicable Option Closing Date
\nof each of the documents referred to above dated as of such Option Closing Date
\n(except that insofar as any documents relate to Securities, they may be limited
\nto covering only Additional Securities).<\/p>\n

6. Covenants of the Company<\/em>. The Company covenants with each
\nUnderwriter as follows:<\/p>\n

(a) To furnish to you, without charge, a signed copy of the Registration
\nStatement (including exhibits thereto and documents incorporated by reference)
\nand to deliver to each of the Underwriters during the period mentioned in
\nSection 6(e) or 6(f) below, as many copies of the Time of Sale Prospectus, the
\nProspectus, any documents incorporated by reference therein and any supplements
\nand amendments thereto or to the Registration Statement as you may reasonably
\nrequest.<\/p>\n

(b) Before amending or supplementing the Registration Statement, the Time of
\nSale Prospectus or the Prospectus, in each case as it applies to the offering of
\nthe Securities and the Underlying Securities pursuant to this Agreement, to
\nfurnish to you a copy of each such proposed amendment or supplement and not to
\nfile any such proposed amendment or supplement to which you reasonably object,
\nand to file with the Commission within the applicable period specified in Rule
\n424(b) under the Securities Act any prospectus required to be filed pursuant to
\nsuch Rule.<\/p>\n

(c) To furnish to you a copy of each proposed free writing prospectus to be
\nprepared by or on behalf of, used by, or referred to by the Company, in each
\ncase as it applies to the offering of the Securities and the Underlying
\nSecurities pursuant to this Agreement, and not to use or refer to any proposed
\nfree writing prospectus to which you reasonably object.<\/p>\n

(d) Not to take any action relating to the offering of the Securities and the
\nUnderlying Securities pursuant to this Agreement that would result in an
\nUnderwriter or the Company being required to file with the Commission pursuant
\nto Rule 433(d) under the Securities Act a free writing prospectus prepared by or
\non behalf of the Underwriter that the Underwriter otherwise would not have been
\nrequired to file thereunder.<\/p>\n

(e) If the Time of Sale Prospectus is being used to solicit offers to buy the
\nSecurities at a time when the Prospectus is not yet available to prospective
\npurchasers and any event shall occur or condition exist as a result of which it
\nis necessary to amend or supplement the Time of Sale Prospectus in order to make
\nthe statements therein, in the light of the circumstances under which they were
\nmade, not misleading, or if any<\/p>\n

18<\/p>\n

\n

event shall occur or condition shall exist as a result of which the Time of
\nSale Prospectus conflicts with the information contained in the Registration
\nStatement then on file, or if, in the opinion of counsel for the Underwriters,
\nit is necessary to amend or supplement the Time of Sale Prospectus to comply
\nwith applicable law, forthwith to prepare, file with the Commission and furnish,
\nat its own expense, to the Underwriters and to any dealer upon request, either
\namendments or supplements to the Time of Sale Prospectus so that the statements
\nin the Time of Sale Prospectus as so amended or supplemented will not, in the
\nlight of the circumstances when delivered to a prospective purchaser, be
\nmisleading or so that the Time of Sale Prospectus, as amended or supplemented,
\nwill no longer conflict with the Registration Statement, or so that the Time of
\nSale Prospectus, as amended or supplemented, will comply with applicable law.\n<\/p>\n

(f) If, during such period after the first date of the public offering of the
\nSecurities as in the reasonable opinion of counsel for the Underwriters the
\nProspectus (or in lieu thereof the notice referred to in Rule 173(a) under the
\nSecurities Act) is required by law to be delivered in connection with sales by
\nan Underwriter or dealer, any event shall occur or condition exist as a result
\nof which it is necessary to amend or supplement the Prospectus in order to make
\nthe statements therein, in the light of the circumstances when the Prospectus
\n(or in lieu thereof the notice referred to in Rule 173(a) under the Securities
\nAct) is delivered to a purchaser, not misleading, or if, in the reasonable
\nopinion of counsel for the Underwriters, it is necessary to amend or supplement
\nthe Prospectus to comply with applicable law, forthwith to prepare, file with
\nthe Commission and furnish, at its own expense, to the Underwriters and to the
\ndealers (whose names and addresses you will furnish to the Company) to which
\nSecurities may have been sold by you on behalf of the Underwriters and to any
\nother dealers upon request, either amendments or supplements to the Prospectus
\nso that the statements in the Prospectus as so amended or supplemented will not,
\nin the light of the circumstances when the Prospectus (or in lieu thereof the
\nnotice referred to in Rule 173(a) under the Securities Act) is delivered to a
\npurchaser, be misleading or so that the Prospectus, as amended or supplemented,
\nwill comply with applicable law.<\/p>\n

(g) To endeavor to qualify the Securities for offer and sale under the
\nsecurities or Blue Sky laws of such jurisdictions as you shall reasonably
\nrequest, provided that in connection therewith the Company shall not be required
\nto qualify as a foreign corporation or to file a general consent to service of
\nprocess in any jurisdiction.<\/p>\n

(h) To make generally available to the Company153s security holders and to you
\nas soon as practicable an earning statement (which need not be audited) covering
\na period of at least twelve months beginning<\/p>\n

19<\/p>\n

\n

with the first fiscal quarter of the Company occurring after the date of this
\nAgreement which shall satisfy the provisions of Section 11(a) of the Securities
\nAct and the rules and regulations of the Commission thereunder.<\/p>\n

(i) Whether or not the transactions contemplated in this Agreement are
\nconsummated or this Agreement is terminated, to pay or cause to be paid all
\nexpenses incident to the performance of its obligations under this Agreement,
\nincluding: (i) the fees, disbursements and expenses of the Company153s counsel and
\nthe Company153s accountants in connection with the registration and delivery of
\nthe Securities under the Securities Act and all other fees or expenses in
\nconnection with the preparation and filing of the Registration Statement, any
\npreliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free
\nwriting prospectus prepared by or on behalf of, used by, or referred to by the
\nCompany and amendments and supplements to any of the foregoing, including the
\nfiling fees payable to the Commission relating to the Securities (within the
\ntime required by Rule 456 (b)(1), if applicable), all printing costs associated
\ntherewith, and the mailing and delivering of copies thereof to the Underwriters
\nand dealers, in the quantities hereinabove specified, (ii) all costs and
\nexpenses related to the transfer and delivery of the Securities to the
\nUnderwriters, including any transfer or other taxes payable thereon, (iii) the
\ncost of printing or producing any Blue Sky or legal investment memorandum in
\nconnection with the offer and sale of the Securities under state securities laws
\nand all expenses in connection with the qualification of the Securities for
\noffer and sale under state securities laws as provided in Section 6(g) hereof,
\nincluding filing fees and the reasonable fees and disbursements of counsel for
\nthe Underwriters in connection with such qualification and in connection with
\nthe Blue Sky or legal investment memorandum, (iv) all filing fees and the
\nreasonable fees and disbursements of counsel to the Underwriters incurred in
\nconnection with the review and qualification of the offering of the Securities
\nby the Financial Industry Regulatory Authority, Inc., (v) any fees charged by
\nthe rating agencies for the rating of the Securities, (vi) all fees and expenses
\nin connection with the preparation and filing of the registration statement on
\nForm 8-A relating to the Securities and all costs and expenses incident to
\nlisting the Securities and the Underlying Securities on NASDAQ, (vii) the cost
\nof the preparation, issuance and delivery of the Securities, (viii) the costs
\nand charges of any trustee, transfer agent, registrar or depositary, (ix) the
\ncosts and expenses of the Company relating to investor presentations on any
\n“road show” undertaken in connection with the marketing of the offering of the
\nSecurities, including, without limitation, expenses associated with the
\npreparation or dissemination of any electronic road show, expenses associated
\nwith the production of road show slides and graphics, fees and expenses of any
\nconsultants engaged in connection with the road show presentations with the
\nprior approval of the Company, travel and lodging expenses of the
\nrepresentatives and officers of the Company and any such<\/p>\n

20<\/p>\n

\n

consultants, and the cost of any aircraft chartered in connection with the
\nroad show, (x) the document production charges and expenses associated with
\nprinting this Agreement and (xi) all other costs and expenses incident to the
\nperformance of the obligations of the Company hereunder for which provision is
\nnot otherwise made in this Section. It is understood, however, that except as
\nprovided in this Section, Section 8 entitled “Indemnity and Contribution,” and
\nthe last paragraph of Section 10 below, the Underwriters will pay all of their
\ncosts and expenses, including fees and disbursements of their counsel, transfer
\ntaxes payable on resale of any of the Securities by them and any advertising
\nexpenses connected with any offers they may make.<\/p>\n

(j) If the third anniversary of the initial effective date of the
\nRegistration Statement occurs before all the Securities have been sold by the
\nUnderwriters, prior to the third anniversary to file a new shelf registration
\nstatement and to take any other action necessary to permit the public offering
\nof the Securities to continue without interruption; references herein to the
\nRegistration Statement shall include the new registration statement declared
\neffective by the Commission;<\/p>\n

(k) During the period beginning on the date hereof and continuing to and
\nincluding the Closing Date, not to offer, sell, contract to sell or otherwise
\ndispose of any debt securities of the Company or warrants to purchase or
\notherwise acquire debt securities of the Company substantially similar to the
\nSecurities (other than (i) the Securities, (ii) commercial paper issued in the
\nordinary course of business, (iii) pursuant to employee stock option or stock
\npurchase plans existing on, or upon the conversion or exchange of convertible or
\nexchangeable securities outstanding as of, the date of this Agreement, (iv)
\npursuant to the convertible note hedge and warrant transactions as described in
\nthe Prospectus or (v) securities or warrants permitted with the prior written
\nconsent of Morgan Stanley & Co. Incorporated and Goldman, Sachs & Co.\n<\/p>\n

(l) During a period of five years from the effective date of the Registration
\nStatement, to furnish to you copies of all reports or other communications
\n(financial or other) furnished to stockholders, and to deliver to you as soon as
\nthey are available, copies of any reports and financial statements furnished to
\nor filed with the Commission or any national securities exchange or NASDAQ on
\nwhich any class of securities of the Company is listed (other than any such
\nreports or financial statements that are filed with the Commission
\nelectronically via EDGAR, IDEA or any successor system).<\/p>\n

(m) To prepare a final term sheet relating to the offering of the Securities,
\ncontaining only information that describes the final terms of the Securities or
\nthe offering in a form consented to by the Underwriters,<\/p>\n

21<\/p>\n

\n

substantially in the form at Schedule I hereto, and to file such final term
\nsheet within the period required by Rule 433(d)(5)(ii) under the Securities Act
\nfollowing the date the final terms have been established for the offering of the
\nSecurities.<\/p>\n

(n) To use the net proceeds received by it from the sale of the Securities
\npursuant to this Agreement in the manner specified in the Time of Sale
\nProspectus under the caption “Use of Proceeds.”<\/p>\n

(o) To use its best efforts to maintain the listing of the Underlying
\nSecurities issuable upon conversion of the Securities on NASDAQ, the New York
\nStock Exchange or another U.S. national securities exchange or established
\nautomated over-the-counter trading market in the United States of America.<\/p>\n

(p) To reserve and keep available at all times, free of preemptive rights,
\nshares of Underlying Securities for the purpose of enabling the Company to
\nsatisfy any obligation to issue shares of its Underlying Securities upon
\nconversion of the Securities.<\/p>\n

7. Covenants of the Underwriters<\/em>. Each Underwriter severally
\ncovenants with the Company not to take any action that would result in the
\nCompany being required to file with the Commission under Rule 433(d) a free
\nwriting prospectus prepared by or on behalf of such Underwriter that otherwise
\nwould not be required to be filed by the Company thereunder, but for the action
\nof the Underwriter.<\/p>\n

8. Indemnity and Contribution<\/em>. (a) The Company agrees to indemnify
\nand hold harmless each Underwriter, each person, if any, who controls any
\nUnderwriter within the meaning of either Section 15 of the Securities Act or
\nSection 20 of the Exchange Act and each affiliate of any Underwriter within the
\nmeaning of Rule 405 under the Securities Act from and against any and all
\nlosses, claims, damages and liabilities (including, without limitation, any
\nlegal or other expenses reasonably incurred in connection with defending or
\ninvestigating any such action or claim) caused by any untrue statement or
\nalleged untrue statement of a material fact contained in the Registration
\nStatement or any amendment thereof, any preliminary prospectus, the Time of Sale
\nProspectus, any issuer free writing prospectus as defined in Rule 433(h) under
\nthe Securities Act, any Company information that the Company has filed, or is
\nrequired to file, pursuant to Rule 433(d) under the Securities Act, any
\nelectronic roadshow or the Prospectus or any amendment or supplement thereto, or
\ncaused by any omission or alleged omission to state therein a material fact
\nrequired to be stated therein or necessary to make the statements therein, in
\nlight of the circumstances in which they were made, not misleading, except
\ninsofar as such losses, claims, damages or liabilities are caused by any such
\nuntrue statement or omission or alleged untrue statement or omission based upon
\ninformation relating to any Underwriter furnished to the Company in writing by
\nsuch Underwriter through you expressly<\/p>\n

22<\/p>\n

\n

for use therein. The foregoing indemnity shall not apply to any issuer free
\nwriting prospectus used by the Underwriters in violation of Section 7 hereof.\n<\/p>\n

(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
\nharmless the Company, its directors, its officers who sign the Registration
\nStatement and each person, if any, who controls the Company within the meaning
\nof either Section 15 of the Securities Act or Section 20 of the Exchange Act to
\nthe same extent as the foregoing indemnity from the Company to such Underwriter,
\nbut only with reference to information relating to such Underwriter furnished to
\nthe Company in writing by such Underwriter through you expressly for use in the
\nRegistration Statement, any preliminary prospectus, the Time of Sale Prospectus,
\nany issuer free writing prospectus or the Prospectus or any amendment or
\nsupplement thereto.<\/p>\n

(c) In case any proceeding (including any governmental investigation) shall
\nbe instituted involving any person in respect of which indemnity may be sought
\npursuant to Section 8(a) or 8(b), such person (the “indemnified
\nparty<\/strong>“) shall promptly notify the person against whom such indemnity
\nmay be sought (the “indemnifying party<\/strong>“) in writing and the
\nindemnifying party, upon request of the indemnified party, shall retain counsel
\nreasonably satisfactory to the indemnified party to represent the indemnified
\nparty and any others the indemnifying party may designate in such proceeding and
\nshall pay the fees and disbursements of such counsel related to such proceeding.
\nIn any such proceeding, any indemnified party shall have the right to retain its
\nown counsel, but the fees and expenses of such counsel shall be at the expense
\nof such indemnified party unless (i) the indemnifying party and the indemnified
\nparty shall have mutually agreed to the retention of such counsel or (ii) the
\nnamed parties to any such proceeding (including any impleaded parties) include
\nboth the indemnifying party and the indemnified party and representation of both
\nparties by the same counsel would be inappropriate due to actual or potential
\ndiffering interests between them. It is understood that the indemnifying party
\nshall not, in respect of the legal expenses of any indemnified party in
\nconnection with any proceeding or related proceedings in the same jurisdiction,
\nbe liable for the fees and expenses of more than one separate firm (in addition
\nto any local counsel) for all such indemnified parties and that all such fees
\nand expenses shall be reimbursed as they are incurred. Such firm shall be
\ndesignated in writing by the Underwriters authorized to appoint counsel under
\nthis Section set forth in Schedule III hereto, in the case of parties
\nindemnified pursuant to Section 8(a), and by the Company, in the case of parties
\nindemnified pursuant to Section 8(b). The indemnifying party shall not be liable
\nfor any settlement of any proceeding effected without its written consent (which
\nconsent shall not be unreasonably withheld, conditioned or delayed), but if
\nsettled with such consent or if there be a final judgment for the plaintiff, the
\nindemnifying party agrees to indemnify the indemnified<\/p>\n

23<\/p>\n

\n

party from and against any loss or liability by reason of such settlement or
\njudgment. No indemnifying party shall, without the prior written consent of the
\nindemnified party (which consent shall not be unreasonably withheld, conditioned
\nor delayed), effect any settlement of any pending or threatened proceeding in
\nrespect of which any indemnified party is or could have been a party and
\nindemnity could have been sought hereunder by such indemnified party, unless
\nsuch settlement includes an unconditional release of such indemnified party from
\nall liability on claims that are the subject matter of such proceeding.<\/p>\n

(d) To the extent the indemnification provided for in Section 8(a) or Section
\n8(b) is unavailable to an indemnified party or insufficient in respect of any
\nlosses, claims, damages or liabilities referred to therein (other than with
\nrespect to Section 8(a) in cases in which Section 8(b) is applicable), then each
\nindemnifying party under such paragraph, in lieu of indemnifying such
\nindemnified party thereunder, shall contribute to the amount paid or payable by
\nsuch indemnified party as a result of such losses, claims, damages or
\nliabilities (i) in such proportion as is appropriate to reflect the relative
\nbenefits received by the Company on the one hand and the Underwriters on the
\nother hand from the offering of the Securities or (ii) if the allocation
\nprovided by clause 8(d)(i) above is not permitted by applicable law, in such
\nproportion as is appropriate to reflect not only the relative benefits referred
\nto in clause 8(d)(i) above but also the relative fault of the Company on the one
\nhand and of the Underwriters on the other hand in connection with the statements
\nor omissions that resulted in such losses, claims, damages or liabilities, as
\nwell as any other relevant equitable considerations. The relative benefits
\nreceived by the Company on the one hand and the Underwriters on the other hand
\nin connection with the offering of the Securities shall be deemed to be in the
\nsame respective proportions as the net proceeds from the offering of the
\nSecurities (before deducting expenses) received by the Company and the total
\nunderwriting discounts and commissions received by the Underwriters bear to the
\naggregate initial public offering price of the Securities as set forth in the
\nProspectus. The relative fault of the Company on the one hand and the
\nUnderwriters on the other hand shall be determined by reference to, among other
\nthings, whether the untrue or alleged untrue statement of a material fact or the
\nomission or alleged omission to state a material fact relates to information
\nsupplied by the Company or by the Underwriters and the parties153 relative intent,
\nknowledge, access to information and opportunity to correct or prevent such
\nstatement or omission. The Underwriters153 respective obligations to contribute
\npursuant to this Section 8 are several in proportion to the respective principal
\namounts of Securities they have purchased hereunder, and not joint.<\/p>\n

(e) The Company and the Underwriters agree that it would not be just or
\nequitable if contribution pursuant to this Section 8 were<\/p>\n

24<\/p>\n

\n

determined by pro rata allocation (even if the Underwriters were treated as
\none entity for such purpose) or by any other method of allocation that does not
\ntake account of the equitable considerations referred to in Section 8(d). The
\namount paid or payable by an indemnified party as a result of the losses,
\nclaims, damages and liabilities referred to in Section 8(d) shall be deemed to
\ninclude, subject to the limitations set forth above, any legal or other expenses
\nreasonably incurred by such indemnified party in connection with investigating
\nor defending any such action or claim. Notwithstanding the provisions of this
\nSection 8, no Underwriter shall be required to contribute any amount in excess
\nof the amount by which the total price at which the Securities underwritten by
\nit and distributed to the public were offered to the public exceeds the amount
\nof any damages that such Underwriter has otherwise been required to pay by
\nreason of such untrue or alleged untrue statement or omission or alleged
\nomission. No person guilty of fraudulent misrepresentation (within the meaning
\nof Section 11(f) of the Securities Act) shall be entitled to contribution from
\nany person who was not guilty of such fraudulent misrepresentation. The remedies
\nprovided for in this Section 8 are not exclusive and shall not limit any rights
\nor remedies which may otherwise be available to any indemnified party at law or
\nin equity.<\/p>\n

(f) The indemnity and contribution provisions contained in this Section 8 and
\nthe representations, warranties and other statements of the Company contained in
\nthis Agreement shall remain operative and in full force and effect regardless of
\n(i) any termination of this Agreement, (ii) any investigation made by or on
\nbehalf of any Underwriter, any person controlling any Underwriter or any
\naffiliate of any Underwriter or by or on behalf of the Company, its officers or
\ndirectors or any person controlling the Company and (iii) acceptance of and
\npayment for any of the Securities.<\/p>\n

9. Termination<\/em>. The Underwriters may terminate this Agreement by
\nnotice given by you to the Company, if after the execution and delivery of this
\nAgreement and prior to the Closing Date (i) trading generally shall have been
\nsuspended or materially limited on the New York Stock Exchange or NASDAQ, (ii)
\ntrading of any securities of the Company shall have been suspended on any
\nexchange or in any over the counter market, (iii) a material disruption in
\nsecurities settlement, payment or clearance services in the United States shall
\nhave occurred, (iv) any moratorium on commercial banking activities shall have
\nbeen declared by Federal or New York State authorities or (v) there shall have
\noccurred any outbreak or escalation of hostilities, or any change in financial
\nmarkets or any calamity or crisis that, in your judgment, is material and
\nadverse and which, singly or together with any other event specified in this
\nclause (v), makes it, in your judgment, impracticable or inadvisable to proceed
\nwith the offer, sale or delivery of the Securities on the terms and in the
\nmanner contemplated in the Time of Sale Prospectus or the Prospectus.<\/p>\n

25<\/p>\n

\n

10. Effectiveness; Defaulting Underwriters<\/em>. This Agreement shall
\nbecome effective upon the execution and delivery hereof by the parties hereto.\n<\/p>\n

If, on the Closing Date or an Option Closing Date, as the case may be, any
\none or more of the Underwriters shall fail or refuse to purchase Firm Securities
\nthat it has or they have agreed to purchase hereunder on such date, and the
\naggregate principal amount of Firm Securities which such defaulting Underwriter
\nor Underwriters agreed but failed or refused to purchase is not more than one
\ntenth of the aggregate principal amount of the Firm Securities to be purchased
\non such date, the other Underwriters shall be obligated severally in the
\nproportions that the principal amount of Firm Securities set forth opposite
\ntheir respective names in Schedule II bears to the aggregate principal amount of
\nFirm Securities set forth opposite the names of all such non defaulting
\nUnderwriters, or in such other proportions as you may specify, to purchase the
\nFirm Securities which such defaulting Underwriter or Underwriters agreed but
\nfailed or refused to purchase on such date; provided that in no event shall the
\nprincipal amount of Firm Securities that any Underwriter has agreed to purchase
\npursuant to this Agreement be increased pursuant to this Section 10 by an amount
\nin excess of one ninth of such principal amount of Firm Securities without the
\nwritten consent of such Underwriter. If, on the Closing Date, any Underwriter or
\nUnderwriters shall fail or refuse to purchase Firm Securities and the aggregate
\nprincipal amount of Firm Securities with respect to which such default occurs is
\nmore than one tenth of the aggregate principal amount of Firm Securities to be
\npurchased on such date, and arrangements satisfactory to you and the Company for
\nthe purchase of such Firm Securities are not made within 36 hours after such
\ndefault, this Agreement shall terminate without liability on the part of any non
\ndefaulting Underwriter or the Company. In any such case either you or the
\nCompany shall have the right to postpone the Closing Date, but in no event for
\nlonger than seven days, in order that the required changes, if any, in the
\nRegistration Statement, in the Time of Sale Prospectus, in the Prospectus or in
\nany other documents or arrangements may be effected. If, on an Option Closing
\nDate, any Underwriter or Underwriters shall fail or refuse to purchase
\nAdditional Securities and the aggregate number of Additional Securities with
\nrespect to which such default occurs is more than one-tenth of the aggregate
\nnumber of Additional Securities to be purchased on such Option Closing Date, the
\nnon-defaulting Underwriters shall have the option to (i) terminate their
\nobligation hereunder to purchase the Additional Securities to be sold on such
\nOption Closing Date or (ii) purchase not less than the number of Additional
\nSecurities that such non-defaulting Underwriters would have been obligated to
\npurchase in the absence of such default. Any action taken under this paragraph
\nshall not relieve any defaulting Underwriter from liability in respect of any
\ndefault of such Underwriter under this Agreement.<\/p>\n

If this Agreement shall be terminated by the Underwriters, or any of them,
\nbecause of any failure or refusal on the part of the Company to comply with the
\nterms or to fulfill any of the conditions of this Agreement, or if for any
\nreason the Company shall be unable to perform its obligations under this
\nAgreement the Company will reimburse the Underwriters or such Underwriters as
\nhave so<\/p>\n

26<\/p>\n

\n

terminated this Agreement with respect to themselves, severally, for all out
\nof pocket expenses (including the fees and disbursements of their counsel)
\nreasonably incurred by such Underwriters in connection with this Agreement or
\nthe offering contemplated hereunder.<\/p>\n

11. Entire Agreement<\/em>. (a) This Agreement, together with any
\ncontemporaneous written agreements and any prior written agreements (to the
\nextent not superseded by this Agreement) that relate to the offering of the
\nSecurities, represents the entire agreement between the Company and the
\nUnderwriters with respect to the preparation of any preliminary prospectus, the
\nTime of Sale Prospectus, the Prospectus, the conduct of the offering, and the
\npurchase and sale of the Securities.<\/p>\n

(b) The Company acknowledges that in connection with the offering of the
\nSecurities: (i) the Underwriters have acted at arms length, are not agents of,
\nand owe no fiduciary duties to, the Company or any other person, (ii) the
\nUnderwriters owe the Company only those duties and obligations set forth in this
\nAgreement and prior written agreements (to the extent not superseded by this
\nAgreement), if any, and (iii) the Underwriters may have interests that differ
\nfrom those of the Company. The Company waives to the full extent permitted by
\napplicable law any claims it may have against the Underwriters arising from an
\nalleged breach of fiduciary duty in connection with the offering of the
\nSecurities.<\/p>\n

12. Counterparts<\/em>. This Agreement may be signed in two or more
\ncounterparts, each of which shall be an original, with the same effect as if the
\nsignatures thereto and hereto were upon the same instrument.<\/p>\n

13. Applicable Law<\/em>. This Agreement shall be governed by and
\nconstrued in accordance with the internal laws of the State of New York.<\/p>\n

14. Headings<\/em>. The headings of the sections of this Agreement have
\nbeen inserted for convenience of reference only and shall not be deemed a part
\nof this Agreement.<\/p>\n

15. Notices<\/em>. All communications hereunder shall be in writing and
\neffective only upon receipt and if to the Underwriters shall be delivered,
\nmailed or sent to you at the address set forth in Schedule III hereto; and if to
\nthe Company shall be delivered, mailed or sent to the address set forth in
\nSchedule III hereto.<\/p>\n

27<\/p>\n

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

Very truly yours,<\/p>\n

SANDISK CORPORATION<\/p>\n<\/td>\n

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

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

\n

\/s\/ Judy Bruner<\/p>\n<\/td>\n

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

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

\n

Judy Bruner<\/p>\n<\/td>\n

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

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

\n

EVP, Administration and CFO<\/p>\n<\/td>\n

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

Accepted as of the date hereof<\/p>\n<\/td>\n

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

MORGAN STANLEY & CO. INCORPORATED<\/p>\n<\/td>\n

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

GOLDMAN, SACHS & CO.<\/p>\n<\/td>\n

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

Acting severally on behalf of themselves and the several Underwriters named
\nin Schedule II hereto<\/p>\n<\/td>\n

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

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

<\/td>\n\n

MORGAN STANLEY & CO. INCORPORATED<\/p>\n<\/td>\n

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

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

<\/td>\n\n

\/s\/ Robert Brass<\/p>\n

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

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

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

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

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

<\/td>\n\n

GOLDMAN, SACHS & CO.<\/p>\n<\/td>\n

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

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

<\/td>\n\n

\/s\/ Goldman, Sachs & Co.<\/p>\n

(Goldman, Sachs & Co.)<\/p>\n<\/td>\n

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

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