EXHIBIT 10.3
AMENDED AND RESTATED
COMMON R&D AND PARTICIPATION AGREEMENT
This AMENDED AND RESTATED COMMON R&D AND PARTICIPATION AGREEMENT, dated as of
September 10, 2004, is made and entered into by and between Toshiba Corporation,
a Japanese corporation with a principal place of business at 1-1, Xxxxxxxx
0-xxxxx, Xxxxxx-xx, Xxxxx 000-0000, Xxxxx (hereinafter "Toshiba"), and SanDisk
Corporation, a Delaware corporation, with a principal place of business at 000
Xxxxxxx Xxxxx, Xxxxxxxxx, XX 00000, U. S. A. (hereinafter "SanDisk" and
collectively with Toshiba, the "Parties").
WHEREAS, Toshiba and SanDisk Corporation entered into a Common R&D and
Participation Agreement, dated as of May 9, 2000, which was amended as of April
10, 2002 and which has been modified by correspondence between SanDisk
Corporation and Toshiba (collectively, the "Prior Agreement"); and
WHEREAS, Toshiba and SanDisk desire to amend the Prior Agreement with the effect
of superceding the Prior Agreement from and after the date of this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1. DEFINITIONS
1.1 "Contract Technology" shall mean [***].
1.2 "AMC" shall mean the Advanced Microelectronics Center,
Toshiba's development engineering facility located in Yokohama, Japan.
1.3 "Assignees" shall mean SanDisk's engineers from the technology
areas of process/device/design, assigned to participate in the Development Work
(as defined in Section 2.1 to be performed at AMC or other Toshiba facilities to
be mutually agreed upon by the parties hereto.
1.4 "Effective Date" shall mean September 10, 2004.
1.5 "Solely Developed Patents" shall mean patents, utility models
(excluding design patents) and any applications therefor which arise out of the
inventions made solely by the employees of either Party during the performance
of the Development Work hereunder.
1.6 "Jointly Developed Patents" shall mean patents, utility models
(excluding design patents) and any applications therefor which arise out of the
inventions jointly made by the employees of Toshiba and SanDisk during the
performance of Development Work hereunder.
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
1.7 "Agreement" shall mean this Amended and Restated Common R&D
and Participation Agreement together with any Exhibits, Schedules, Appendices
and Attachments hereto including Appendix A to the Master Agreement, which is
incorporated herein by this reference.
1.8 "Master Agreement" shall mean that certain Flash Partners
Master Agreement, dated as of the date hereof, by and among Toshiba, SanDisk and
SanDisk International.
1.9 "Residuals" shall mean that technical information which may be
retained in the memories of Assignees who have had rightful access to Toshiba's
proprietary information and Contract Technology.
1.10 "Common R&D Effective Date" shall mean May 9, 2000.
ARTICLE 2. DEVELOPMENT COLLABORATION
2.1 SanDisk will send, and Toshiba will receive, such number of
Assignees as are mutually agreed upon, at AMC or other Toshiba facilities during
the term of this Agreement in order for SanDisk to participate in the
development work of the Contract Technology as set forth in Exhibit B (the
"Development Work"), which may be modified by Toshiba and SanDisk from time to
time, and in accordance with the direction of Toshiba; provided that such
modification to the Development Work shall not materially affect SanDisk's
permitted access to the Contract Technology. For avoidance of doubt, it is
agreed by the parties that SanDisk shall not have any right to have access to,
and its Assignees shall not have access to, any technical information or data
which are not relevant or necessary to perform the Development Work or any
technical information or data for which access by Assignees is prohibited by any
binding contract of Toshiba and any third party, and that no right or license is
granted to SanDisk with respect to said technical information or data. The
project managers of SanDisk and Toshiba shall periodically discuss, determine
and monitor the details of the Development Work; provided that in case of any
dispute between the respective project managers, the manager of Toshiba may
determine such details, taking into consideration the reasonable input made by
SanDisk. In order to perform the Development Work, Toshiba shall(at its sole
expense) provide the Assignees with sufficient office equipment, including
personal computers and telephones.
2.2 SanDisk shall ensure that its Assignees comply with the
safety, security and all other applicable practices, regulations of Toshiba and
specific instructions or directions to be made by Toshiba while such Assignees
are in Toshiba's facilities. Except as provided in the Master Agreement, SanDisk
agrees to be responsible for all salaries, benefits, expense reimbursements and
other payments to its Assignees and workers insurance for Assignees and shall
indemnify and hold Toshiba harmless from any claims against Toshiba arising out
of any injury to any Assignee.
2.3 Except as provided in the Master Agreement, SanDisk shall be
responsible for the living, traveling and all other out-of-pocket expenses for
its Assignees.
2
2.4 The amendment and restatement in Section 5 is conditioned upon
(a) Flash Partners' 300 millimeter production beginning [***] and (b) Toshiba
considering in good faith SanDisk's requests (i) to provide SanDisk with the
opportunity to manage the Common R&D expenditure base (project selection, team
development, etc.) (ii) to have SanDisk actively participate in the entire
Development Work and (iii) to ensure to the maximum extent practicable the
cooperation between SanDisk and Toshiba's engineering, development and
technology teams (e.g. open communication, joint planning of experiments, timely
sharing of wafers (for first hand analysis by SanDisk) and Toshiba's results of
wafer testing), it being understood that the final determination regarding such
requests is to be made by Toshiba. SanDisk shall take appropriate action to
preserve the confidentiality of (and restrict the distribution within SanDisk
of) the information learned in the course of Development Work or any activities
contemplated hereunder.
2.5 [***].
ARTICLE 3. OWNERSHIP
3.1 All technical information provided by any Party in the course
of the development of the Contract Technology shall remain the exclusive
property of said Party; provided that, Toshiba shall have a non-exclusive,
worldwide and royalty-free license to use, reproduce and otherwise dispose of
such technical information for any purpose.
3.2 All technical information, inventions and intellectual
property rights resulting therefrom (but specifically exclude patents) made or
generated by Toshiba and/or Assignees in the course of the Development Work
shall be the exclusive property of Toshiba; provided that, SanDisk shall have
the right and license set forth in Section 4.
3.3 Any Solely Developed Patent of Toshiba shall be and remain the
exclusive property of Toshiba, subject to the licenses granted to SanDisk in
accordance with Section 4.1.
3.4 Any Solely Developed Patent of SanDisk shall be and remain the
exclusive property of SanDisk, subject to the licenses granted to Toshiba in
accordance with Section 4.3.
3.5 Any right, title and interest in, to and under Jointly
Developed Patents shall be jointly owned by Toshiba and SanDisk. Each Party
shall be free to use such Jointly Developed Patents for any purpose and shall
have the right to grant non-exclusive licenses to any third party without the
consent of the other Party and shall have no duty to account to the other Party
for any revenue therefrom. Both parties shall promptly agree on which of them
shall file and prosecute the first patent application and which countries'
corresponding applications shall be filed and by whom. All expenses incurred in
obtaining and maintaining such patents shall be equally shared by the parties;
provided that if one Party elects not to seek or maintain such patents in any
particular country or not to share equally in the expense thereof, the other
Party shall have the right to seek or maintain such patents in said country at
its own expense and shall have full control over the prosecution and maintenance
thereof even though title to any patent issuing thereon shall be joint. The
Party electing not seek or maintain such patents shall give the
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
3
other Party any necessary assistance required for the preparation and
prosecution of such patents filed or maintained by the other Party.
3.6 It is understood by the parties that either Party may perform
development of any products or process independently of the development of the
Contract Technology hereunder. This Agreement is not intended to limit such
independent development involving technology or information of a similar nature
to the Contract Technology.
ARTICLE 4. LICENSE
4.1 Toshiba grants to SanDisk a non-exclusive, non-transferable,
worldwide and royalty-free license, without the right to sublicense, under its
Solely Developed Patents to develop, have developed, make, have made, use, sell,
modify and otherwise dispose of any semiconductor products.
4.2 Subject to SanDisk's confidentiality obligations under Section
8 and the provisions of Sections 3, 6, 7 and 10, SanDisk shall be free to use,
improve or modify without additional compensation to Toshiba the Residuals,
including the use, improvement or modification of such Residuals in the
development and manufacture of SanDisk's products; provided that this Section,
by itself, shall not be deemed to grant to SanDisk any rights or licenses under
any patents of Toshiba nor shall this Section operate to waive SanDisk's
confidentiality obligations under Section 8. In no event shall such Assignee or
SanDisk publish or disseminate said Residuals to any third party.
4.3 SanDisk grants to Toshiba a non-exclusive, non-transferable,
worldwide and royalty-free license, without the right to sublicense, under its
Solely Developed Patents to develop, have develop, make, have made, use, sell,
modify and otherwise dispose of any semiconductor products.
4.4 Toshiba shall prepare and transfer to the Yokkaichi Facility
(as defined in Appendix A) documentation for NAND process concerning the
Contract Technology for production at the Yokkaichi Facility; provided, however,
that SanDisk may have access to such documentation at such facilities but shall
have no right to disclose or transfer it to any third party.
4
ARTICLE 5. COMMON R&D EXPENDITURE
5.1 Unless otherwise mutually agreed upon by the Parties, no
Common R&D for non-NAND Flash Memory technology shall be performed at the Y3
Facility. Provided Toshiba continues to develop and advance NAND Flash Memory
technology for the benefit of both parties pursuant to the FVC Japan Operative
Documents, the Flash Partners Operative Documents and the other Joint Operative
Documents, SanDisk hereby agrees to share Toshiba's Common R&D expenditures and
shall pay to Toshiba its portion of such Common R&D expenditures in accordance
with this Section 5.1:
(a) From the second quarter of calendar year 2000 through
and including March 31, 2002:
SanDisk will share in Toshiba's Common R&D expenditures as set
forth in Table A below, and SanDisk shall pay Toshiba for such Common R&D
expenditures in the amounts and on or prior to the dates provided in Table B as
follows:
Table A
SanDisk's Allocation of Common R&D Expenses
2000 2001 2002
----------------------------------------------------------------------------
2Q 3Q 4Q 1Q 2Q 3Q 4Q 1Q
----------------------------------------------------------------------------
(amounts incurred in millions of Yen)
[***] [***] [***] [***] [***] [***] [***] [***]
----------------------------------------------------------------------------
Table B
Payment by SanDisk for Common R&D Expenses
2002 Total
-------------------------------------------------------------------
June 30 September 30 December 31
-------------------------------------------------------------------
(amounts payable in millions of Yen)
[***] [***] [***] [***]
-------------------------------------------------------------------
Notwithstanding the foregoing, in the event of the termination
of this Agreement (i) on or before March 31, 2002, SanDisk shall be obligated
immediately to pay its share of the allocated Common R&D expenses accrued
through the date of such termination (pro-rated in the event such termination
occurs prior to the end of a quarter) as set forth in Table A, (ii) after March
31, 2002 but prior to December 31, 2002, SanDisk's shall be obligated
immediately to pay any unpaid amount set forth in Table B.
The parties acknowledge that after March 31, 2002, it will be
difficult to predetermine Toshiba's total Common R&D expenditures and a fixed
allocation of Common R&D expenditures for SanDisk. Therefore, after March 31,
2002, the payment by SanDisk to Toshiba for Common R&D expenditures will be
based on a percentage of SanDisk's Net Sales of NAND Flash Memory Products (as
hereinafter defined), and calculated and paid as follows:
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
5
(b) After March 31, 2002 and within thirty (30) days of the
end of each calendar quarter based on SanDisk's Net Sales of NAND Flash Memory
Products for the quarter just ended as follows:
(i) [***] of the first US $100 million for the quarter
reported;
(ii) [***] of the next US $100 million for the quarter
reported; and
(iii) [***] of SanDisk's Net Sales of NAND Flash memory
Products in excess of US $200 million per quarter.
(c) For purposes of this Section 5.1, "Net Sales of NAND
Flash Memory Products" shall mean [***]; provided, however, that:
(i) from January 1, 2003 until December 31, 2005, the
amount calculated pursuant to Section 5.1(b) shall not exceed [***] per quarter;
(ii) from January 1, 2006 to December 31, 2006, the
amount calculated pursuant to Section 5.1(b) shall not exceed [***] per quarter;
(iii) from January 1, 2007 to December 31, 2007, the
amount calculated pursuant to Section 5.1(b) shall not exceed [***] per quarter;
and
(iv) from January 1, 2008 to December 31, 2008, the
amount calculated pursuant to Section 5.1(b) shall not exceed [***] per quarter;
(d) Notwithstanding Section 5.1(b) and subject to Section
5.1(e), SanDisk's quarterly contribution for Common R&D pursuant to Sections
5.1(a) and 5.1(b) shall not exceed the sum of (i) [***] of the total Common R&D
annual expenditure of the Semiconductor Company of Toshiba, as notified to
SanDisk by Toshiba at the beginning of each of Toshiba fiscal year ("Total R&D
Budget") for the first [***] of the Total R&D Budget and (ii) [***] of the
portion of such Total R&D Budget in excess of [***].
(e) In the event that any Common R&D activities have been
done [***] pursuant to Section 6.6(a)(i) of the FP Master Agreement, SanDisk
shall bear any and all charges incurred by Flash Partners from such Common R&D
activities [***] at the ratio of [***], and SanDisk's total contribution for
Common R&D charges pursuant to (b), (c), and (d) of this Section 5.1 shall be
reduced by such SanDisk Y3 Common R&D Charges; in the event such SanDisk Y3
Common R&D Charges exceed in any given quarter the amount for such quarter set
forth in paragraphs (b), (c) and (d) of this Section 5.1, unless otherwise
agreed upon by the Parties, [***] of SanDisk Y3 Common R&D Charges shall be
borne directly by SanDisk and no payment by SanDisk to Toshiba for any such
Common R&D expenditures shall be made for that given quarter pursuant to (b),
(c) or (d) of this Section 5.1, provided, however, that, to the extent of any
such excess amount that has been incurred from Common R&D activities [***]
performed without consent of SanDisk, [***] of the applicable portion of such
amount shall be borne by Toshiba.
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
6
(f) The amount of the Total R&D Budget shall be subject to
verification if requested by SanDisk by disclosing internal Toshiba documents to
an independent certified public accountant appointed by SanDisk which shall
verify the stated amount of the Total R&D Budget, by written certification to
SanDisk by the appropriate officer of the Semiconductor Company of Toshiba. Such
verification shall be conducted, at SanDisk's cost and expense, during normal
business hours of Toshiba and not more frequently than annually.
(g) Within 45 days of the start of each of its fiscal years,
Toshiba shall provide SanDisk with a 1-2 day detailed presentation of Toshiba's
process development activity at AMC and other Toshiba facilities for the
previous calendar year and forecasted activity for the new fiscal year as such
activity relates to or affects NAND Flash Memory. Any expenses incurred for such
presentation shall be borne by the Party incurring such expenses.
5.2 Payments made pursuant to this Agreement shall constitute
SanDisk's sole financial obligation with respect to any and all Common R&D
charges from (or through) any Toshiba source.
5.3 Payments of the fees provided for in Section 5.1 (other than
Section 5.1(a) and 5.1(b)), which payments shall be made on or before the dates
specified therein) shall be made by SanDisk within sixty (60) days after
receiving the invoice to be issued by Toshiba at the end of each applicable
calendar quarter. For the purpose of Toshiba's issuance of such invoices,
SanDisk shall submit to Toshiba, within 30 days following the end of each
quarter after April 1, 2002, a written report stating the quantity and Net Sales
of NAND Flash Memory Products sold or otherwise disposed of by SanDisk during
the applicable quarter.
5.4 All payments under Section 5.1 shall be made in Japanese yen
by wire transfer of immediately available funds to the following account or such
other account as may be designated by Toshiba to SanDisk in writing:
[***]
Where the provisions of this Agreement require the conversion of an amount
initially computed in another currency into Japanese Yen, the Japanese Yen
amount payable shall be calculated using the New York foreign exchange mid range
rates (Currency per US Dollars) published in The Wall Street Journal, Western
Edition, on the last day such journal is published in the calendar quarter
immediately preceding the date of payment.
5.5 All payments provided for in Section 5.1 shall be made without
deduction of taxes; provided, however, that in the event any withholding income
tax is imposed by U.S. tax authorities on any amount payable to Toshiba
hereunder, SanDisk may withhold such income tax from such amount to the extent
that Toshiba may obtain a tax credit against its Japanese income tax. SanDisk
shall without undue delay obtain and send to Toshiba tax certificates evidencing
the tax amount withheld and paid to U.S. tax authorities.
5.6 In the event any compensation payable to Toshiba by SanDisk
under this Agreement becomes overdue other than as a result of any action or
inaction on the part of
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
7
Toshiba, Toshiba shall be entitled to request SanDisk to pay interest at twelve
percent (12%) per annum until such compensation is paid.
5.7 Toshiba shall have the right, at its sole cost and expense, to
have an independent certified public accountant conduct during normal business
hours and not more frequently than annually, an audit of the appropriate records
of SanDisk to verify the number of units of Toshiba Foundry NAND Flash Memory
Products, FVC Japan NAND Flash Memory Products and Y3 NAND Flash Memory Products
sold or otherwise disposed of by SanDisk and SanDisk's calculation of the fees
and Net Sales pursuant to Section 5.1.
ARTICLE 6. WARRANTY
6.1 Each Party provides to the other Party its technical
information on an "as-is" basis only, and does not make any warranty or
representation with respect to such technical information for any purpose.
6.2 Nothing contained in this Agreement shall be construed as:
(a) a warranty or representation that the manufacture, use,
sale or other disposal of semiconductor products by the other Party using any
technical information received under this Agreement will be free from
infringement of patents or any other intellectual property rights of any third
Party;
(b) conferring the other Party any right to use in
advertising, publicity or otherwise any trademark, trade name or names, or any
contraction, abbreviation or simulations thereof of either Party;
(c) conferring the other Party, by implication, estoppel or
otherwise, any license or other right, except for the licenses and rights
expressly granted hereunder; and
(d) an obligation to furnish any technical information or
know-how except as otherwise specifically provided herein.
ARTICLE 7. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGE OF ANY KIND, (INCLUDING LOSS OF
PROFIT OR DATA) WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSS.
8
ARTICLE 8. CONFIDENTIALITY
8.1 As used in this Agreement, the term "Confidential Information"
shall mean any information disclosed by Toshiba to SanDisk pursuant to this
Agreement which is in written, graphic, machine readable or other tangible form
and is marked "Confidential", "Proprietary" or in some other manner to indicate
its confidential nature. Confidential Information may also include oral
information disclosed by Toshiba to SanDisk pursuant to this Agreement, provided
that such information is designated in a manner to indicate its confidential
nature at the time of disclosure and reduced to a written summary by Toshiba
within thirty (30) days after its oral disclosure. For avoidance of doubt, all
information observed by or disclosed to Assignees at Toshiba's facilities shall
be treated as Toshiba Confidential Information.
8.2 During the [***] period following receipt of such information,
the receiving Party shall keep any Confidential Information, including the
technical information SanDisk has access to at AMC during the course of the
development of the Contract Technology hereunder, in strict confidence, and
shall not disclose such Confidential Information to any third party without
prior written consent of the disclosing Party. The receiving Party shall
maintain the Confidential Information with at least the same degree of care that
the receiving Party uses to protect its own strictly confidential information,
but no less care than is reasonable under the circumstances. Further, the
receiving Party shall not use the Confidential Information for any purposes
other than for the development of the Contract Technology hereunder, except as
otherwise provided herein.
8.3 Neither Party shall disclose the terms and conditions of this
Agreement to any third party other than in compliance with any government
regulation, without prior written consent of the other Party.
8.4 The confidentiality obligation set forth in Sections 8.2 and
8.3 above shall not apply to any information which:
(a) is already known to the receiving Party at the time of disclosure;
(b) is or becomes publicly through no fault of the receiving Party;
(c) is rightfully received by the receiving Party from a third party
without any restriction on disclosure;
(d) is independently developed by the receiving Party;
(e) is disclosed with the prior written consent of the disclosing Party
hereunder; or
(f) is disclosed pursuant to applicable laws, regulations or court order;
provided, that the receiving Party shall give the disclosing Party
prompt notice of such request so that the disclosing Party has an
opportunity to defend, limit or protect such disclosure.
8.5 Each Party understands that disclosure or dissemination of the
other Party's Confidential Information not expressly authorized hereunder would
cause irreparable
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
9
injury to such other Party, for which monetary damages would not be an adequate
remedy and said other Party shall be entitled to equitable relief in addition to
any remedies the other Party may have hereunder or at law. In the event SanDisk
is to enter into any joint development work with any third party, SanDisk
warrants that Toshiba Confidential Information provided to SanDisk in connection
with the development of the Contract Technology shall neither be used for such
joint development work nor be disclosed to any third party unless expressly
otherwise provided hereunder.
ARTICLE 9. TERM AND TERMINATION
9.1 This Agreement shall become effective on the Common R&D
Effective Date and continue in full force and effect until the later of the
termination of the FVC Japan Master Agreement or the Master Agreement, unless
earlier terminated as hereinafter provided. The term of this Agreement may be
extended by mutual agreement of both parties. This Agreement shall automatically
terminate upon termination of the FVC Japan Master Agreement or the Master
Agreement, whichever is later.
9.2 If either Party fails to perform or breaches any of its
material obligations under this Agreement, then, upon sixty (60) days written
notice specifying such failure or breach, the non-defaulting Party shall have
the right to terminate this Agreement forthwith, unless the failure or breach
specified in the notice has been cured during the sixty (60) day period.
Termination of this Agreement pursuant to this Section 9.2 shall not relieve the
breaching Party from any liability arising from any breach of this Agreement and
such termination shall be without prejudice to any other rights and remedies of
the non-breaching Party provided at law or in equity, in addition to the rights
and remedies set forth in this Agreement.
9.3 Either Party shall have the right to terminate this Agreement
by giving written notice to the other Party upon the occurrence of any of the
following events:
(a) the filing by the other Party of a voluntary petition in
bankruptcy or insolvency;
(b) any adjudication that such other Party is bankrupt or
insolvent;
(c) the filing by such other Party of any legal action or
document seeking reorganization, readjustment or arrangement of its business
under any law relating to bankruptcy or insolvency;
(d) the appointment of a receiver for all or substantially
all of the property of such other Party; or
(e) the making by such other Party of any assignment of
whole or substantial assets for the benefit of creditors.
This Agreement shall terminate on the thirtieth (30th) day after such
notice of termination is given.
10
9.4 The provisions of Sections 3, 6, 7, 8, 9 and 10 and Appendix A
shall survive any termination or expiration of this Agreement. The provision of
Section 4 shall survive the expiration of this Agreement; provided that SanDisk
has paid to Toshiba the total amount of fees required to be paid in Section 5.
ARTICLE 10. GENERAL PROVISIONS
10.1 Neither Party is required to disclose any information of which
disclosure is prohibited by laws of the country of such Party.
10.2 Neither Party shall export or re-export, directly or
indirectly, any technical information disclosed hereunder or direct product
thereof to any destination prohibited or restricted by the export control
regulations of Japan and the United States, including the U.S. Export
Administration Regulations, without the prior authorization from the appropriate
governmental authorities. SanDisk hereby certifies that SanDisk will not use
technical information supplied by Toshiba hereunder for any purpose to develop
or manufacture nuclear, chemical, biological weapons or missiles (hereafter
"weapons of mass destruction"). SanDisk further certifies that it will not sell
any products manufactured using Toshiba's technical information to any Party if
it knows that the end-user of the products will use them for the development
and/or manufacture of the weapons of mass destruction.
10.3 The rules of construction and documentary conventions set
forth in Appendix A to the Master Agreement shall apply to, and are hereby
incorporated in, this Agreement.
[Rest of Page Intentionally Blank]
11
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed in duplicate, as of the date first written above, by their duly
authorized officers or representatives.
Toshiba Corporation SanDisk Corporation
By: /s/ Masashi Muromachi By: /s/ Xxx Xxxxxx
-------------------------------- -------------------------------------
Name: Masashi Muromachi Name: Xxx Xxxxxx
Title: President and CEO Title: President and CEO
Semiconductor Company
Corporate Vice President
12
EXHIBIT A
(Contract Technology)
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
13
EXHIBIT B
(Development Work for Contract Technology)
[***]
[***] INDICATES THAT CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-2. CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
14
