Common use of Alternative use of allotted capacity Clause in Contracts

Alternative use of allotted capacity. (i) If a Party is unable to utilize its allotted manufacturing capacity for Y4 NAND Flash Memory Products (such Party, an “Excess Capacity” or “EC Party”), it may do any of the following: (A) An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion. (B) An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c). (C) An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d) and (e). If an EC Party is not able to utilize or transfer its allotted capacity pursuant to Section 6.7(b), it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance an under-utilization fee in accordance with a formula to be mutually determined by the Parties). (ii) If both Parties are EC Parties because demand for both Parties’ Y4 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 NAND Flash Memory Products to be produced at the Y4 Facility; provided that (A) the inability of the Parties so to agree shall not constitute a Deadlock (as defined in the FA Operating Agreement) and (B) the foregoing shall not limit either Party’s rights in the remainder of this Section 6.7.

Alternative use of allotted capacity. (i) If a Party is unable to utilize its allotted manufacturing capacity for Y4 JV Y5 NAND Flash Memory Products (such Party, an “Excess Capacity” or “EC Party”), it may do any of the following: (A) An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion. (B) An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c‎6.6(c). (C) An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d‎6.6(d) and ‎(e). (e). If an D) An EC Party is not able to utilize or transfer may produce less than one hundred percent (100%) of its allotted capacity pursuant to Section 6.7(b)total Equivalent Lot capacity, it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance an under-utilization fee provided its allocation of costs in this case will be done in accordance with a formula to be mutually determined by the PartiesSection 7.4(a)(i) (“EC Compensation”). (ii) If both Parties are EC Parties because demand for both Parties’ Y4 JV Y5 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 JV Y5 NAND Flash Memory Products to be produced at in the Y4 FacilityJV Space; provided that (A) the inability of the Parties to so to agree shall not constitute a Deadlock (as defined in the FA FF Operating Agreement) and (B) the foregoing shall not limit either Party’s rights in the remainder of this Section 6.7‎6.6.

Alternative use of allotted capacity. (i) If a Party is unable to utilize its allotted manufacturing capacity for Y4 Y3 NAND Flash Memory Products (such Party, an “Excess Capacity” or “EC Party”), it may do any of the following: (A) An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion. (B) An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c6.5(c). (C) An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d6.5(d) and (e). If an EC Party is not able to utilize or transfer its allotted capacity pursuant to Section 6.7(b6.5(b), it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance Partners an under-utilization fee in accordance with a formula to be mutually determined by the Parties). (ii) If both Parties are EC Parties because demand for both Parties’ Y4 Y3 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 Y3 NAND Flash Memory Products to be produced at the Y4 Y3 Facility; provided that (A) the inability of the Parties so to agree shall not constitute a Deadlock (as defined in the FA FP Operating Agreement) and (B) the foregoing shall not limit either Party’s rights in the remainder of this Section 6.76.5.

Alternative use of allotted capacity. (i) If a Party is unable to utilize its allotted manufacturing capacity for Y4 JV Y5 NAND Flash Memory Products (such Party, an “Excess Capacity” or “EC Party”), it may do any of the following: (A) An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion. (B) An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c6.6(c). (C) An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d6.6(d) and (e). If an . (D) An EC Party is not able to utilize or transfer may produce less than one hundred percent (100%) of its allotted capacity pursuant to Section 6.7(b)total Equivalent Lot capacity, it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance an under-utilization fee provided its allocation of costs in this case will be done in accordance with a formula to be mutually determined by the PartiesSection 7.4(a)(i) (“EC Compensation”). (ii) If both Parties are EC Parties because demand for both Parties’ Y4 JV Y5 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 JV Y5 NAND Flash Memory Products to be produced at in the Y4 FacilityJV Space; provided that (A) the inability of the Parties to so to agree shall not constitute a Deadlock (as defined in the FA FF Operating Agreement) and (B) the foregoing shall not limit either Party’s rights in the remainder of this Section 6.76.6.

Alternative use of allotted capacity. (i) If a Party is unable to utilize its allotted manufacturing capacity for Y4 Y3 NAND Flash Memory Products (such Party, an “"Excess Capacity” " or “"EC Party”"), it may do any of the following: (A) An EC Party may request the other Party to negotiate the terms of transfer of its capacity shortfall to the other Party, which may choose whether to accept such additional capacity and on what terms in its sole discretion. (B) An EC Party may use its capacity for Embedded NAND Products, as defined in and subject to Section 6.7(c6.5(c). (C) An EC Party may use its capacity for Proprietary NAND Flash Memory Products and non-Proprietary NAND Flash Memory Products, in accordance with and subject to Sections 6.7(d6.5(d) and (e). If an EC Party is not able to utilize or transfer its allotted capacity pursuant to Section 6.7(b6.5(b), it shall pay the incremental cost increase to the Party not experiencing a shortfall (or pay to Flash Alliance Partners an under-utilization fee in accordance with a formula to be mutually determined by the Parties). (ii) If both Parties are EC Parties because demand for both Parties’ Y4 ' Y3 NAND Flash Memory Products are significantly below expectations, the Parties will discuss in good faith whether to permit products which are not Y4 Y3 NAND Flash Memory Products to be produced at the Y4 Y3 Facility; provided that (A) the inability of the Parties so to agree shall not constitute a Deadlock (as defined in the FA FP Operating Agreement) and (B) the foregoing shall not limit either Party’s 's rights in the remainder of this Section 6.76.5.