Common use of Termination Following Closing Clause in Contracts

Termination Following Closing. (a) Following the Closing, in the event that the Sellers have not waived the requirement for the Buyer to conduct a Public Offering and the Buyer has not successfully completed the Public Offering prior to the first anniversary of the April Option Agreement (the “IPO Expiration”): (i) Within five (5) business days after the IPO Expiration, Royalty Exchange shall pay to the Sellers an expiration fee in the sum of One Hundred Thousand U.S. Dollars ($100,000), allocated as follows by wire transfer to the Sellers’ respective bank accounts as set forth on Schedule 2, or such other bank accounts as Sellers may then designate in writing (email sufficing): Sixty-Six Thousand Six Hundred U.S. Dollars ($66,600) to FBT, and Thirty-Three Thousand Four Hundred U.S. Dollars ($33,400) to Em2M. (ii) During the Repurchase Option Term (as defined below), Sellers shall have the option to repurchase the Acquired Interest for the same aggregate price, including for the avoidance of doubt any Partial Payment(s) and/or the 25% Option Price Remaining Payment, received by Sellers pursuant to this Agreement (the “Repurchase Option” and such aggregate price, “Repurchase Price”)), such option being exercisable by written notice to Royalty Exchange (“Repurchase Notice”). The term of the Repurchase Option shall commence upon the IPO Expiration and continue through and include the date that is six (6) months after the date of the IPO Expiration (the “Repurchase Option Term”). (iii) In the event Sellers exercise the Repurchase Option, within five (5) business days after delivery of the Repurchase Notice to Royalty Exchange: (1) Sellers shall cause payment of the Repurchase Price to be made to Royalty Exchange at its bank account set forth on Schedule 3 annexed hereto and made a part hereof, or such other payee and bank account as Royalty Exchange may then designate in writing (email sufficing). (2) Buyer shall pay to Sellers any proceeds arising from or with respect to the Acquired Interest directly or indirectly received by Buyer or its designee between the Closing and the date of such repayment. (3) Buyer shall execute and deliver to Sellers a re-assignment of the Acquired Interest in form and substance satisfactory to Sellers, and such other documentation as reasonably necessary to effectuate such reassignment. In the event Buyer fails to so execute and deliver, the assignment of the Acquired Interest to Buyer shall automatically terminate and all rights granted to Buyer with respect to the Acquired Interest as contemplated in this Agreement and the Proposed Agreement shall immediately revert to Sellers, and Sellers shall have the right to execute any such instruments or documents in Buyer’s name solely to effectuate such reassignment of the Acquired Interest to Sellers.

Termination Following Closing. (a) Following the Closing, this Agreement shall be terminated automatically upon the earlier of the transfer of all a Member's Membership Interest in the event that the Sellers have not waived the requirement for the Buyer to conduct a Public Offering and the Buyer has not successfully completed the Public Offering prior Newco to the first anniversary other Member (or its Affiliate) or upon completion of the April Option dissolution and liquidation of Newco pursuant to Article XI (Dissolution) of the Operating Agreement (the “IPO Expiration”):date of such transfer or dissolution and liquidation, the "TERMINATION DATE"); provided, that, all obligations or liabilities of any party hereto which are accrued or owing prior to such termination and the parties' covenants contained in Section 6.03(b) (Public Announcements) shall survive such termination. (b) Upon termination of this Agreement resulting from an event of dissolution of Newco pursuant to Section 11.01(a) of the Operating Agreement: (i) Within five (5) business days after Toshiba and SanDisk shall further amend the IPO Expiration, Royalty Exchange shall pay License Agreement in effect at the date of termination to specify that each party's patents issued or issuing on patent applications entitled to an effective filing date prior to the Sellers an expiration fee in Termination Date are licensed on a royalty-free basis for the sum lives of One Hundred Thousand U.S. Dollars ($100,000), allocated such patents. The scope of the licenses as follows by wire transfer amended pursuant to this Section 9.02(b)(i) shall not be greater than the Sellers’ respective bank accounts as set forth on Schedule 2, or such other bank accounts as Sellers may then designate in writing (email sufficing): Sixty-Six Thousand Six Hundred U.S. Dollars ($66,600) to FBT, and Thirty-Three Thousand Four Hundred U.S. Dollars ($33,400) to Em2M.scope of those granted under the license agreement existing at the time of termination. (ii) Toshiba shall grant to SanDisk, effective upon such Termination Date, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized by DSC, and SanDisk shall have full access to all such know-how at DSC which has been transferred to DSC prior to the Termination Date. (c) Upon termination of this Agreement resulting from an event of dissolution of Newco or one Member's acquisition of the other Member's Membership Interest in Newco pursuant to Section 11.01(h) (8th Year Dissolution) of the Operating Agreement: (i) Upon request of SanDisk given at the time of its notice pursuant to Section 11.05 of the Operating Agreement in the case of the dissolution of Newco or upon request of the party who sells its Membership Interest in Newco pursuant to Section 11.05 (8th Year Dissolution) of the Operating Agreement (each, a "REQUESTING PARTY") in each case prior to the Termination Date, Toshiba or the party acquiring the selling Member's Membership Interest in Newco (the "ACQUIRING PARTY"), as the case may be, will continue to manufacture NAND Flash Memory Products for the Requesting Party (not to exceed the Requesting Party's capacity allocation available from Newco under this Agreement as of the Termination Date (the "TERMINATION CAPACITY")) for a period of eighteen (18) months following the Termination Date in the following ramp-down manner: (A) the first six months from the Termination Date: 100% of the Termination Capacity (B) During the Repurchase Option Term 7th through the 12th month from the Termination Date: 75% of the Termination Capacity (as defined below), Sellers C) During the 13th through the 18th month from the Termination Date: 50% of the Termination Capacity. (ii) Toshiba and SanDisk and their respective Affiliates shall have a perpetual, fully paid-up, royalty-free right to use technology previously transferred to one another during the option to repurchase the Acquired Interest for the same aggregate price, including for the avoidance of doubt any Partial Payment(s) and/or the 25% Option Price Remaining Payment, received by Sellers pursuant to this Agreement (the “Repurchase Option” and such aggregate price, “Repurchase Price”)), such option being exercisable by written notice to Royalty Exchange (“Repurchase Notice”). The term of the Repurchase Option shall commence upon the IPO Expiration and continue through and include the date that is six (6) months after the date of the IPO Expiration (the “Repurchase Option Term”)this Agreement. (iii) In Toshiba and SanDisk shall further amend the License Agreement to specify that each party's patents issued or issuing on patent applications entitled to an effective filing date prior to the Termination Date are licensed on a royalty free basis for the lives of such patents. The scope of the licenses as amended pursuant to this Section 9.02(c)(iii) shall not be greater than the scope of those granted under the license agreement existing at the time of termination. (iv) If this Agreement is terminated as a result of an event Sellers exercise of dissolution caused by Toshiba's election to withdraw from the Repurchase Operating Agreement, then Toshiba hereby grants to SanDisk, effective upon the Termination Date, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid-up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized by DSC, and SanDisk shall have full access to all such know-how at DSC which has been transferred to DSC prior to the Termination Date. (d) Upon termination of this Agreement resulting from an event of dissolution of Newco or SENA's acquisition of SanDisk's Interest in Newco described in Section 11.01(e) (Dissolution by Unilateral Option) of the Operating Agreement: (i) Toshiba will, upon request of SanDisk given within sixty (60) days of the notice given by SanDisk pursuant to Section 11.04 of the Operating Agreement, continue to manufacture products for SanDisk for a period of eighteen (18) months following the Termination Date in accordance with the following ramp-down manner; PROVIDED, THAT, such capacity allocation for SanDisk shall not exceed its capacity allocation available from Newco under this Agreement as of the Termination Date (the "SANDISK TERMINATION CAPACITY"): (A) During the first six months from the Termination Date: 100% of the SanDisk Termination Capacity (B) During the 7th through the 12th month from the Termination Date: 75% of the SanDisk Termination Capacity (C) During the 13th through the 18th month from the Termination Date: 50% of the SanDisk Termination Capacity. (ii) Toshiba and SanDisk and their respective Affiliates shall have a perpetual, fully paid-up, royalty-free right to use technology previously transferred to one another during the term of this Agreement. (iii) Toshiba and SanDisk shall further amend the License Agreement to specify that each party's patents issued or issuing on patent applications entitled to an effective filing date prior to the Termination Date are licensed at the royalty rates specified in SCHEDULE 9.02(D) for five (5) business years following the Termination Date; PROVIDED, THAT, after such five (5) year period, such license shall be on a royalty free basis and PROVIDED, FURTHER, THAT, at any time during such five year period, both parties shall negotiate in good faith for up to one hundred and eighty (180) days as requested by either party to mutually agree on royalty rates for patents filed by each party after delivery the Termination Date. The scope of the Repurchase Notice licenses as amended pursuant to Royalty Exchangethis Section 9.02(d)(iii) shall not be greater than the scope of those granted under the license agreement existing at the time of termination. (e) Upon termination of this Agreement resulting from an event of dissolution of Newco or one Member's acquisition of the other Member's Membership Interest in Newco following a Deadlock (as defined in the Operating Agreement) as described in Section 11.01(d) (Deadlock) of the Operating Agreement: (1i) Sellers shall cause payment In the case of one Member's acquisition of the Repurchase Price other Member's Membership Interest in Newco pursuant to be made Section 10.04(e) of the Operating Agreement, the Acquiring Party will continue to Royalty Exchange at its bank account set forth on Schedule 3 annexed hereto and made manufacture products for the other Member (not to exceed the other Member's Termination Capacity) for a part hereof, or such other payee and bank account as Royalty Exchange may then designate period of eighteen (18) months following the Termination Date in writing accordance with the following ramp down manner: (email sufficing)A) During the first six months from the Termination Date: 100% of the SanDisk Termination Capacity (B) During the 7th through the 12th month from the Termination Date: 75% of the SanDisk Termination Capacity (C) During the 13th through the 18th month from the Termination Date: 50% of the SanDisk Termination Capacity. (2ii) Buyer Toshiba and SanDisk and their respective Affiliates shall pay have a perpetual, fully paid-up, royalty-free right to Sellers any proceeds arising from use technology previously transferred to one another during the term of this Agreement. (iii) Toshiba and SanDisk shall further amend the License Agreement to specify that each party's patents issued or with respect issuing on patent applications entitled to an effective filing date prior to the Acquired Termination Date are licensed: (x) at the royalty rates specified in SCHEDULE 9.02(E) until March 31, 2008; (y) at the royalty rates specified in SCHEDULE 9.02(D) from April 1, 2008 through December 31, 2010; and (z) thereafter, on a royalty-free basis. Both parties shall negotiate in good faith for up to one hundred and eighty (180) days upon request of either party at any time during the five-year period after the Termination Date to mutually agree on royalty rates for patents filed by each party after the Termination Date. The scope of the licenses as amended pursuant to this Section 9.02(e)(iii) shall not be greater than the scope of those granted under the license agreement existing at the time of termination. (f) Upon termination of this Agreement resulting from an event of dissolution of Newco or a Member's acquisition of the other Member's Membership Interest directly in Newco described in Section 11.01(c) (Event of Default) of the Operating Agreement: (i) Toshiba and SanDisk shall further amend the License Agreement to specify that each party's patents issued or indirectly received issuing on patent applications entitled to an effective filing date prior to the Termination Date are licensed at the royalty rates specified in SCHEDULE 9.02(F) for seven (7) years after the Termination Date or until the end of calendar 2015, whichever comes first, and thereafter such licenses shall be on a royalty-free basis. (ii) In the event that SENA is the Defaulting Member, Toshiba shall grant to SanDisk, effective upon such date of termination, a non-exclusive, non-transferable (except to Affiliates of SanDisk), non-sub-licensable, fully paid- up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized by Buyer or its designee between the Closing DSC, and SanDisk shall have full access to all such know-how at DSC which has been transferred to DSC prior to the date of such repaymenttermination. (3g) Buyer shall execute and deliver to Sellers a re-assignment Upon termination of this Agreement resulting from an event of dissolution described in Section 11.01(g) (Bankruptcy Event) of the Acquired Interest Operating Agreement: (i) If such termination is caused by a Bankruptcy Event in form and substance satisfactory respect of Toshiba, (x) the license granted to SellersSanDisk under Toshiba Licensed Patents pursuant to the License Amendment shall continue on a royalty-free basis, and (y) Toshiba shall grant to SanDisk, effective upon such other documentation as reasonably necessary date of termination, a non-exclusive, non-transferable (except to effectuate Affiliates of SanDisk), non-sub-licensable, fully paid-up, royalty-free license to make, have made, use, sell and have sold NAND Flash Memory Products anywhere in the world utilizing the NAND technology transferred to and/or utilized by DSC, and SanDisk shall have full access to all such reassignment. In know-how at DSC which has been transferred to DSC prior to the event Buyer fails to so execute and deliverdate of such termination. (ii) If such termination is caused by a Bankruptcy Event in respect of SanDisk, the assignment of the Acquired Interest to Buyer shall automatically terminate and all rights license granted to Buyer with respect Toshiba under SanDisk Licensed Patents pursuant to the Acquired Interest as contemplated License Amendment shall continue on a royalty-free basis. (h) Termination of this Master Agreement shall not affect any surviving rights or obligations of either Toshiba or SanDisk set forth in this the Product Development Agreement, the Environmental Indemnification Agreement and the Proposed Agreement shall immediately revert to Sellers, and Sellers shall have the right to execute any such instruments or documents in Buyer’s name solely to effectuate such reassignment of the Acquired Interest to SellersCommon R&D Agreement.

Termination Following Closing. (a) Following the Closing, in the event that the Sellers have not waived the requirement for the Buyer to conduct a Public Offering and the Buyer has not successfully completed the Public Offering prior to the first anniversary of the April Option Agreement Effective Date (the “IPO Expiration”): (i) Within five (5) business days after the IPO Expiration, Royalty Exchange shall pay to the Sellers an expiration fee in the sum of One Hundred Thousand U.S. Dollars ($100,000), allocated as follows by wire transfer to the Sellers’ respective bank accounts as set forth on Schedule 2, or such other bank accounts as Sellers may then designate in writing (email sufficing): Sixty-Six Thousand Six Hundred U.S. Dollars ($66,600) to FBT, and Thirty-Three Thousand Four Hundred U.S. Dollars ($33,400) to Em2M. (ii) During the Repurchase Option Term (as defined below), Sellers shall have the option to repurchase the Acquired Interest for the same aggregate price, including for the avoidance of doubt any Partial Payment(s) and/or the 25% Option Price Remaining Payment, price received by Sellers pursuant to this Agreement Section 6 (the “Repurchase Option” and such aggregate price, “Repurchase Price”)), such option being exercisable by written notice to Royalty Exchange (“Repurchase Notice”). The term of the Repurchase Option shall commence upon the IPO Expiration and continue through and include the date that is six (6) months after the date of the IPO Expiration (the “Repurchase Option Term”). (iii) In the event Sellers exercise the Repurchase Option, within five (5) business days after delivery of the Repurchase Notice to Royalty Exchange: (1) Sellers shall cause payment of the Repurchase Price to be made to Royalty Exchange at its bank account set forth on Schedule 3 annexed hereto and made a part hereof, or such other payee and bank account as Royalty Exchange may then designate in writing (email sufficing). (2) Buyer shall pay to Sellers any proceeds arising from or with respect to the Acquired Interest directly or indirectly received by Buyer or its designee between the Closing and the date of such repayment. (3) Buyer shall execute and deliver to Sellers a re-assignment of the Acquired Interest in form and substance satisfactory to Sellers, and such other documentation as reasonably necessary to effectuate such reassignment. In the event Buyer fails to so execute and deliver, the assignment of the Acquired Interest to Buyer shall automatically terminate and all rights granted to Buyer with respect to the Acquired Interest as contemplated in this Agreement and the Proposed Agreement shall immediately revert to Sellers, and Sellers shall have the right to execute any such instruments or documents in Buyer’s name solely to effectuate such reassignment of the Acquired Interest to Sellers.