ex10_2.htm


     

    
      Exhibit
10.2

      FOIA
Confidential Treatment Requested

      Execution
Version


     

    
      


    

    


     

    EQUIPMENT
PURCHASE AGREEMENT

     

     

    Dated as
of January 29, 2009

     

     

    by and
among

     

     

    TOSHIBA
CORPORATION,

     

     

    SANDISK
(IRELAND) LIMITED,

     

     

    SANDISK
(CAYMAN) LIMITED,

     

     

    SANDISK
CORPORATION,

     

     

    FLASH
PARTNERS LIMITED,

     

     

    and

     

     

    FLASH
ALLIANCE LIMITED

     

    


    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

     

    TABLE OF CONTENTS

    


    
      
        	 	 	
                 Page

              
	
                1.

              	
                Definitions
      and Interpretation 

              	
                1

              


      

    

     

    
      	
              2.

            	
              The
      Transaction 

            	
              3

            


    

     

    
      	
              3.

            	
              Purchase
      Price; Closing 

            	
              6

            


    

     

    
      	
              4.

            	
              Representations
      and Warranties of Each of the Parties 

            	
              10

            


    

     

    
      	
              5.

            	
              Representations
      and Warranties of the Sellers 

            	
              11

            


    

     

    
      	
              6.

            	
              Covenants 

            	
              12

            


    

     

    
      	
              7.

            	
              Conditions
      Precedent to the Sellers’ Obligations at the First
      Closing 

            	
              13

            


    

     

    
      	
              8.

            	
              Conditions
      Precedent to Toshiba’s Obligations at the First
    Closing 

            	
              14

            


    

     

    
      	
              9.

            	
              Conditions
      Precedent to the Subsequent Closings 

            	
              15

            


    

     

    
      	
              10.

            	
              Indemnification 

            	
              15

            


    

     

    
      	
              11.

            	
              Termination
      of the Agreement 

            	
              16

            


    

     

    
      	
              12.

            	
              General
      Provisions 

            	
              16

            


    

     

    
      	
               
      

            	
              Attachments:

            


    

     

    


     

    


    


    
      
        
          
            
              	 
      	
                      i

                    	 
      


            

            


          

           


        

        
           


          
            

          

        

        
           


        

      

    

    


    This
EQUIPMENT PURCHASE AGREEMENT
(this “Agreement”) dated as
of January 29, 2009, is entered into by and among TOSHIBA CORPORATION, a
Japanese corporation (“Toshiba”), SANDISK
(CAYMAN) LIMITED, a company organized under the laws of the Cayman Islands
(“SanDisk
Cayman”), SANDISK (IRELAND)
LIMITED,  a company organized under the laws of the Republic of
Ireland  (“SanDisk Ireland”),
SANDISK CORPORATION, a Delaware corporation (“SanDisk” and,
together with SanDisk Cayman and SanDisk Ireland, the “SanDisk Parties”),
FLASH PARTNERS LIMITED, a tokurei yugen kaisha organized under
the laws of Japan (“FP”), and FLASH
ALLIANCE LIMITED, a tokurei
yugen kaisha organized under the laws of Japan (“FA” and, together
with FP, the “Sellers” and the
Sellers together with the SanDisk Parties and Toshiba, the “Parties”).

     

    WHEREAS,
Toshiba and certain SanDisk Parties are each shareholders in FP and
FA;

     

    WHEREAS,
FP owns the machinery, equipment and other tangible assets described on attached
Schedule 2.1(a)(i) and leases
the machinery, equipment and other tangible assets described on attached Schedule 2.1(a)(ii);

     

    WHEREAS,
FA owns the machinery, equipment and other tangible assets described on attached
Schedule 2.1(b)(i) and leases
the machinery, equipment and other tangible assets described on attached Schedule 2.1(b)(ii);

     

    WHEREAS,
Toshiba desires to purchase from the Sellers, and the Sellers desire to sell to
Toshiba, such owned equipment and the Sellers’ rights under such leases, and
Toshiba is prepared to assume certain obligations and liabilities in connection
therewith, all on the terms and conditions set forth below; and

     

    WHEREAS,
simultaneous herewith, Toshiba, SanDisk, SanDisk Cayman and SanDisk Ireland are
entering into a Joint Venture Restructure Agreement (the “JVRA”), pursuant to
which the parties are amending the Flash Partners Master Agreement by and among
Toshiba, SanDisk and SanDisk Cayman dated September 10, 2004, the Flash Alliance
Master Agreement by and among Toshiba, SanDisk, and SanDisk Ireland dated July
7, 2006, and also entering into certain other agreements relevant to the
operation of FA and FP, as provided therein;

     

    NOW,
THEREFORE, in consideration of the premises, representations, warranties,
covenants and agreements set forth herein, and for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
Sellers, the SanDisk Parties and Toshiba hereby agree as follows:

     

    1. Definitions
and Interpretation

     

    
      	
              1.1  

            	
              Certain
      Definitions.  The following capitalized terms used in
      this Agreement shall have the respective meanings assigned in this
      Agreement:

            


    

     

    
      
        
          	
                  Term

                	
                  Defined In

                
	
                  Action

                	
                  Section 2.3(d)

                
	
                  Agreement

                	
                  Heading

                
	
                  Applicable
      Law

                	
                  Section 5.1

                
	
                  Assumed
      Liabilities

                	
                  Section 2.4

                


        

      

    

    


    


    
      
        
           


        

        
          1

          
            

          

        

        
           


        

      

    

    


    


    
      
        	
                Closing

              	
                Section 3.2(a)

              
	
                Closing
      Date

              	
                Section
      3.2(c)

              
	
                Equipment

              	
                Section 2.1

              
	
                Equipment
      Leases

              	
                Section
      2.1(b)(ii)

              
	
                Equipment
      Purchase Closing

              	
                Section 3.2(b)

              
	
                Equipment
      Transactions

              	
                Section 3.2(a)

              
	
                Excluded
      Assets

              	
                Section 2.2

              
	
                Excluded
      Liabilities

              	
                Section 2.3

              
	
                FA

              	
                Heading

              
	
                FA
      Equipment

              	
                Section
      2.1(b)(ii)

              
	
                FA
      Leased Equipment

              	
                Section 2.1(b)(ii)

              
	
                FA
      Leases

              	
                Section 2.1(b)(ii)

              
	
                FA
      Owned Equipment

              	
                Section 2.1(b)(i)

              
	
                FA
      Purchase Price

              	
                Section 3.1(a)(ii)

              
	
                FA
      Purchased Assets

              	
                Section 2.1(b)

              
	
                FP

              	
                Heading

              
	
                FP
      Equipment

              	
                Section
      2.1(a)(ii)

              
	
                FP
      Leased Equipment

              	
                Section 2.1(a)(ii)

              
	
                FP
      Leases

              	
                Section 2.1(a)(ii)

              
	
                FP
      Owned Equipment

              	
                Section 2.1(a)(i)

              
	
                FP
      Purchase Price

              	
                Section 3.1(a)(i)

              
	
                FP
      Purchased Assets

              	
                Section 2.1(a)

              
	
                Governmental
      Authority

              	
                Section 2.3

              
	
                [***]*

              	
                Section 10.3

              
	
                Indemnifying
      Party

              	
                Section 10.1

              
	
                JVRA

              	
                Recitals

              
	
                Lease
      Closing

              	
                Section 3.2(b)

              
	
                Lease
      Transfer Costs

              	
                Section
      3.7(a)

              
	
                Leased
      Equipment

              	
                Section 2.1(b)(ii)

              
	
                Lien

              	
                Section 4.4

              
	
                [***]*

              	
                Section
      8.5

              
	
                Material
      Adverse Effect

              	
                Section
      8.10

              
	
                Material
      Consent

              	
                Section 6.3

              
	
                [***]*

              	
                Section
      3.1

              
	
                Owned
      Equipment

              	
                Section 2.1

              
	
                Party

              	
                Heading

              
	
                Permit

              	
                Section 5.2

              
	
                Person

              	
                Section 4.4

              


      

      
        
          

        

        * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

         

      

      
        
          
          

        

        
          2

          
            

          

        

        
          
          

        

      

      
        	
                Post-Closing
      Period

              	
                Section 3.7(d)

              
	
                Pre-Closing
      Period

              	
                Section 3.7(d)

              
	
                Purchased
      Assets

              	
                Section 2.1

              
	
                Resolution

              	
                Section
      3.6(c)

              
	
                Resolution
      Period

              	
                Section
      3.6(c)

              
	
                SanDisk

              	
                Heading

              
	
                SanDisk
      Cayman

              	
                Heading

              
	
                SanDisk
      Ireland

              	
                Heading

              
	
                SanDisk
      Party

              	
                Heading

              
	
                Seller

              	
                Heading

              
	
                Subsequent
      Closing

              	
                Section
      3.2(c)

              
	
                Subsequent
      Closing Date

              	
                Section
      3.2(c)

              
	
                Tax

              	
                Section 2.3

              
	
                Toshiba

              	
                Heading

              


      

    

    


    
      	
              1.2  

            	
              Interpretation.  Whenever
      the words “include,” “includes” or “including” are used in this Agreement,
      they shall be deemed, as the context indicates, to be followed by the
      words “but (is/are) not limited to.”  Wherever in this Agreement
      words indicating the plural number appear, such words will be considered
      as words indicating the singular number and vice versa where the context
      indicates the propriety of such
use.

            


    

     

    
      	
              1.3  

            	
              The
      terms “Y3
      Facility” and “Y4 Facility” as
      used in this Agreement shall have the meanings assigned to them in the
      JVRA.

            


    

     

    2. The
Transaction

     

    
      	
              2.1  

            	
              Purchased
      Assets.  Subject to the terms and conditions of this
      Agreement, and on the basis of the representations, warranties, covenants
      and agreements set forth herein, at the applicable Closing, the Sellers
      shall sell, transfer, convey, assign and deliver to Toshiba, and Toshiba
      shall purchase from the Sellers, all right, title and interest in and to
      the following assets (collectively, the “Purchased
      Assets”):

            


    

     

    
      	
              (a)  

            	
              FP Purchased
      Assets.  To be purchased from FP (collectively, the
      “FP Purchased
      Assets”):

            


    

     

    
      	
              (i)  

            	
              FP Owned
      Equipment.  The machinery, equipment and other assets
      described on the attached Schedule 2.1(a)(i),
      [***]*
      which shall represent approximately  [***]* of the
      wafer output capacity of FP and which shall have been calculated from the
      list of assets owned by FP (the “FP Owned
      Equipment”);

            


    

     

    
      	
              (ii)  

            	
              FP Leased
      Equipment.  All rights and obligations of FP in
      connection with the machinery, equipment and other assets, [***]* set
      forth on attached Schedule 2.1(a)(ii),
      which shall represent approximately [***]* of the
      wafer output capacity of FP (the “FP Leased
      Equipment” and together with the FP Owned Equipment, the “FP Equipment”),
      that are subject to the leases specified thereon (the “FP Leases”), it
      being understood that the assignment and assumption of such rights and
      obligations shall be effected as set forth in Section 3.6;
    and

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

    

    


    
      
        
           


        

        
          3

          
            

          

        

        
           


        

      

    

    


     

     

    
      	
              (iii)  

            	
              FP
      Documents.  All books, records and materials in the
      possession or control of FP and that are reasonably necessary or
      appropriate for Toshiba to operate the FP Equipment in substantially the
      same manner as operated by FP as of the date of this Agreement and as of
      each Closing Date, including vendor agreements, title documents, user
      manuals, operating guides, bills of materials, records, maintenance
      schedules and records, supplier and other vendor ordering information and
      records, warranties for both materials and equipment purchased and
      products sold, and all other operational, commercial and technical
      information related to the FP
Equipment.

            


    

     

    
      	
              (b)  

            	
              FA Purchased
      Assets.  To be purchased from FA (collectively, the
      “FA Purchased
      Assets”):

            


    

     

    
      	
              (i)  

            	
              FA Owned
      Equipment.  The machinery, equipment and other assets
      described on the attached Schedule 2.1(b)(i),
      [***]*
      which shall represent approximately [***]* of the
      wafer output capacity of FA and which shall have been calculated from the
      list of assets owned by FA (the “FA Owned
      Equipment”);

            


    

     

    
      	
              (ii)  

            	
              FA Leased
      Equipment.  All rights and obligations of FA in
      connection with the machinery, equipment and other assets, [***]* set
      forth on attached Schedule 2.1(b)(ii),
      which shall represent approximately [***]* of the
      wafer output capacity of FA (the “FA Leased
      Equipment” and, together with the FA Owned Equipment, the “FA Equipment”
      or together with the FP Leased Equipment, the “Leased
      Equipment”), that are subject to the leases specified thereon (the
      “FA
      Leases” and, together the with FP Leases, the “Equipment
      Leases”), it being understood that the assignment and assumption of
      such rights and obligations shall be effected as set forth in Section 3.6;
      and

            


    

     

    
      	
              (iii)  

            	
              FA
      Documents.  All books, records and papers in the
      possession or control of FA and that are reasonably necessary for Toshiba
      to operate the FA Equipment in substantially the same manner as operated
      by FA as of the date of this Agreement and as of each Closing Date,
      including vendor agreements, title documents, user manuals, operating
      guides, bills of materials, records, maintenance schedules and records,
      supplier and other vendor ordering information and records, warranties for
      both materials and equipment purchased and products sold, and all other
      operational, commercial or technical information related to the FA
      Equipment.

            


    

     

    As used
in this Agreement, the term “Owned Equipment”
means the FP Owned Equipment together with the FA Owned Equipment, and the term
“Equipment”
means the Owned Equipment together with the Leased Equipment.

     

    
      	
              (c)  

            	
              Tool Selection
      Methodology; Substitution of Purchased
  Assets.

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          4

          
            

          

        

        
           


        

      

    

    


    it is
understood by the Parties that the Equipment has been selected with the
intention that each of the FP Equipment and the FA Equipment represents
approximately [***]* of the
equivalent wafer output capacity of the fabs utilized by FP and FA,
respectively, as of the date of this Agreement, preserving actual toolset line
balance between the capacity transferred to Toshiba and the remaining capacity
of FP and FA, which in each case represents as nearly as practicable [***]* the capital equipment of
each of FP and FA.

     

    
      	
              (i)  

            	
              To
      the extent that the Parties determine that the purchase of Owned Equipment
      or assignment and assumption of the Equipment Leases with respect to
      Leased Equipment (1) requires consents of third parties that cannot be
      obtained in a timely manner or without undue difficulty or expense, (2)
      would not release SanDisk from the guaranty obligations related to the
      Leased Equipment, or (3) involves Equipment which, prior to the relevant
      Closing, is materially damaged, the Parties shall endeavor in good faith
      to promptly reach agreement on such adjustments to Schedules 2.1(a)(i),
      2.1(a)(ii),
      2.1(b)(i)
      and/or 2.1(b)(ii) as
      are necessary to address the foregoing
issues.

            


    

     

    
      	
              2.2  

            	
              Excluded
      Assets.  Notwithstanding anything to the contrary set
      forth in this Agreement, except for the Purchased Assets, the Sellers
      shall not transfer at Closing any other assets of the Sellers (such
      assets, the “Excluded
      Assets”), which Excluded Assets shall be retained by the
      Sellers.

            


    

     

    
      	
              2.3  

            	
              Excluded
      Liabilities.  Notwithstanding anything to the contrary
      set forth in this Agreement, except for the Assumed Liabilities, the
      Sellers shall not transfer at Closing any liability for any contracts,
      agreements, commitments or liabilities of the Sellers or any SanDisk Party
      whatsoever, including any of the following (collectively, the “Excluded
      Liabilities”), which Excluded Liabilities shall be retained by the
      Sellers and/or the SanDisk Parties as
  applicable:

            


    

     

    
      	
              (a)  

            	
              any
      liability relating to, arising out of or incurred in connection with the
      Purchased Assets, or use, operation or possession thereof, prior to the
      Closing; and

            


    

     

    
      	
              (b)  

            	
              any
      trade accounts payable, accrued liability or other liability of the
      Sellers as of the Closing whether or not such amounts are known or payable
      on or prior to the Closing;

            


    

     

    
      	
              (c)  

            	
              except
      as expressly provided for in Sections 3.1(a) and 3.7 below, any
      Taxes or similar charges that may become payable in any jurisdiction by
      the Sellers by reason of the sale and transfer of the Purchased Assets
      pursuant hereto, or arising from or relating to Sellers’ receipt of the FP
      Purchase Price or FA Purchase Price (or relief from any Assumed
      Liability); and

            


    

     

    
      	
              (d)  

            	
              any
      liability relating to, arising out of or incurred in connection with any
      final nonappealable decision arising out of any suit, litigation,
      arbitration or administrative proceeding before any Governmental Authority
      (all “Actions”) prior
      to the Closing or initiated after the Closing but based in whole or part
      on an act or omission of a Seller,

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          5

          
            

          

        

        
           


        

      

    

    


    or any
current or former officer, director, employee or agent of a Seller or the use,
operation or possession of the Purchased Assets prior to the date of this
Agreement.

     

    The term
“Tax” (and,
with correlative meaning, “Taxes” and “Taxable”) as used in
this Agreement means any net income, alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, transfer, franchise, profits,
license, withholding, payroll, employment, excise, severance, stamp, occupation,
premium, property, environmental or windfall profit tax, custom, duty or other
tax, governmental fee or other assessment or charge of any kind whatsoever,
together with any interest or any penalty, addition to tax or additional amount
and any interest on such penalty, addition to tax or additional amount imposed
by any Governmental Authority. The term “Governmental
Authority” as used in this Agreement means any court, tribunal,
arbitrator or any government or political subdivision thereof, whether foreign,
federal, state or county, or any agency, authority, official or instrumentality
of such government or political subdivision.

     

    
      	
              2.4  

            	
              Assumed
      Liabilities.  Subject to the terms and conditions of this
      Agreement, at each Closing, each Seller shall assign to Toshiba, and
      Toshiba shall assume, the related Assumed Liabilities (as defined below).
      Thereafter, Toshiba shall pay and discharge all such Assumed Liabilities
      as and when such Assumed Liabilities become due and owing.  The
      term “Assumed
      Liabilities” as used in this Agreement means only those liabilities
      which relate to, arise out of or are incurred in connection with the
      Purchased Assets on or after the Closing at which such assets are
      transferred, including the Equipment Leases to the extent assigned, but
      not including any Excluded Liabilities and not including any liabilities
      in connection with the Purchased Assets that are specifically allocated to
      the Sellers or the SanDisk Parties under other agreements relating to the
      operation of the Y3 Facility and the Y4
  Facility.

            


    

     

    3. Purchase
Price; Closing

     

    
      	
              3.1  

            	
              Purchase
      Price.  

            


    

     

    
      	
              (a)  

            	
              Timing of Purchase
      Price Payment by Toshiba.  Subject to the terms and
      conditions of this Agreement, as full consideration for the sale,
      assignment, transfer and delivery of the Owned Equipment by the Sellers to
      Toshiba, and the execution and delivery by the Sellers of this Agreement
      and any and all certificates and instruments executed or contemplated to
      be executed by SanDisk in connection with the Equipment Purchase Closing,
      Toshiba shall deliver [***]*, by
      wire transfer of immediately available funds to an account designated by
      FP or FA, as applicable, an amount equal
to:

            


    

     

    
      	
              (i)  

            	
              for
      FP, [***]* (the
      “FP Purchase
      Price”); and 

            


    

     

    
      	
              (ii)  

            	
              for
      FA, [***]* (the
      “FA Purchase
      Price”);

            


    

     

    provided,
however, that, in the event that the sale-and-leaseback arrangements described
at Section 3.6(b) below are not obtained, Toshiba and SanDisk shall discuss and
agree on a reasonable delay of payment; provided, further, that in no event
shall payment be delayed beyond [***]*.

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          6

          
            

          

        

        
           


        

      

    

    


    
      	
              (b)  

            	
              [***]* by Joint
      Venture.  No later than [***]*, each
      Seller shall transfer the entire FP Purchase Price and FA Purchase Price,
      as applicable and [***]*, to
      each of SanDisk and Toshiba (with each of SanDisk and Toshiba receiving
      50% of the applicable purchase price), by wire transfer of immediately
      available funds to accounts designated by SanDisk and Toshiba, [***]*.  SanDisk
      and Toshiba each agree to provide acknowledgment of such repayment to each
      Seller.

            


    

     

    As used
in this agreement, [***]* shall
mean [***]*.

     

    
      	
              3.2  

            	
              Closing.
      

            


    

     

    
      	
              (a)  

            	
              The
      transactions contemplated by this Agreement (the “Equipment
      Transactions”) shall be consummated at a series of closings (each a
      “Closing”).

            


    

     

    
      	
              (b)  

            	
              At
      each Closing, Toshiba will either purchase Owned Equipment (the “Equipment Purchase
      Closing”) or acquire rights and obligations of the Sellers in
      connection with the Leased Equipment or, as applicable, the Equipment
      Leases, each as provided in Section 3.6 below (a “Lease
      Closing”).

            


    

     

    
      	
              (c)  

            	
              Provided
      that all of the conditions to a Closing have been met or waived in writing
      by the Party that has the benefit thereof, each Closing will take place on
      the date set forth on Schedule 3.2, or at such
      other place, date and time as the Parties mutually agree.  As
      set forth on Schedule 3.2, the first
      Closing is contemplated to be a Lease Closing.  As used in this
      Agreement, the term “Subsequent
      Closing” shall mean each of (i) any Lease Closing after the first
      Closing and (ii) the Equipment Purchase Closing (the date of each such
      Closing a “Subsequent Closing
      Date,” and the first Closing Date together with the Subsequent
      Closing Dates, the “Closing
      Dates”).

            


    

     

    
      	
              3.3  

            	
              Deliveries by the
      Sellers. At each Closing, the Sellers shall (i) take all steps
      necessary to place Toshiba in actual possession and operating control of
      all Purchased Assets to be transferred at such Closing, and
      (ii) deliver the following items, duly executed by the Sellers, in
      each case in form and substance acceptable to
  Toshiba:

            


    

     

    
      	
              (a)  

            	
              FP Assignment and
      Assumption Agreements and Bill of
Sale.

            


    

     

    
      	
              (i)  

            	
              At
      each Closing, an Assignment and Assumption Agreement executed by FP
      covering any rights and obligations under any FP Leases and other
      agreements to be transferred at such Closing, substantially in the form of
      attached Exhibit A.

            


    

     

    
      	
              (ii)  

            	
              At
      the Equipment Purchase Closing, a Bill of Sale executed by FP covering all
      of the FP Owned Equipment that is to be transferred at such Closing,
      substantially in the form of attached Exhibit B.

            


    

     

    
      	
              (b)  

            	
              FA Assignment and
      Assumption Agreement and Bill of
Sale.

            


    

     

    
      	
              (i)  

            	
              At
      each Closing, an Assignment and Assumption Agreement executed by FA
      covering any rights and obligations under any FA Leases and other 

                agreements
      to be transferred at such Closing, substantially in the form of attached
      Exhibit C.

                 

              

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          7

          
            

          

        

        
           


        

      

    

    




    
      	
              (ii)  

            	
              At
      the Equipment Purchase Closing, a Bill of Sale executed by FA covering all
      of the FA Owned Equipment that is to be transferred at such Closing,
      substantially in the form of attached Exhibit D.

            


    

     

    
      	
              (c)  

            	
              Sellers’
      Invoices.  An invoice issued to Toshiba by each of FA and
      FP, in each case dated the applicable Closing Date and requiring payment
      of the FA Purchase Price and the FP Purchase Price, respectively, not
      later than [***]* following such Closing
    Date.

            


    

     

    
      	
              (d)  

            	
              Other Conveyance
      Instruments.  Such other instruments of sale, transfer,
      conveyance and assignment as Toshiba deems are necessary or useful to
      transfer all right, title and interest in all Purchased Assets to be
      transferred at such Closing to Toshiba, or to evidence the
      same.

            


    

     

    
      	
              (e)  

            	
              Closing Condition
      Documents.  All of the documents provided for in
      Articles 8 and, as applicable, 9
below.

            


    

     

    
      	
              3.4  

            	
              Deliveries by
      Toshiba.  At the Closing, Toshiba shall deliver the
      following items, duly executed by Toshiba, in each case in form and
      substance acceptable to the
Sellers:

            


    

     

    
      	
              (a)  

            	
              Assumption
      Instruments.  Such other instruments of assumption as are
      reasonably necessary for Toshiba to assume the Assumed Liabilities being
      assumed at such Closing.

            


    

     

    
      	
              (b)  

            	
              Closing Condition
      Documents.  All of the documents provided for in
      Articles 7 and, as applicable, 9
below.

            


    

     

    
      	
              3.5  

            	
              Transfer of Title;
      Risk of Loss.  Legal and equitable title and risk of loss
      with respect to all of the Purchased Assets shall pass from the Sellers to
      Toshiba at the relevant Closing pursuant to, and in accordance with, the
      terms of this Agreement.

            


    

     

    
      	
              3.6  

            	
              Equipment
      Leases. 

            


    

     

    
      	
              (a)  

            	
              Transfer of Leased
      Equipment.  Subject to Toshiba, SanDisk and the Seller
      obtaining consent from the applicable financing parties, the Parties
      contemplate that Toshiba’s acquisition of the Sellers’ interests in the
      Leased Equipment shall be conducted as follows: Toshiba and the parties to
      the existing lease shall, on the day of the next scheduled payment under
      the relevant lease following the execution of this Agreement, and subject
      to FA or FP, as applicable, making such scheduled payment, or on such
      other day as may be mutually agreed between the applicable financing
      parties and the current lessee of such Leased Equipment, effect a partial
      assignment of the relevant lease from the Seller to Toshiba as
      lessee.

            


    

     

    
      	
              (b)  

            	
              Financed
      Equipment.  [***]*.

            


    

     

    
      	
              (c)  

            	
              Breach of Condition
      Failure.  [***]*

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          8

          
            

          

        

        
           


        

      

    

    


    
      	
              (i)  

            	
              [***]*

            


    

     

    
      	
              (ii)  

            	
              [***]*.

            


    

     

    For a
period of [***]* (the “Resolution Period”)
from the date of the event causing the failure of [***],* SanDisk or
Toshiba, as applicable, shall have an opportunity to remedy the failure of the
conditions described above by [***]*, such that
[***]* (the
“Resolution”)
and that the Closing can occur on the first available open transfer window on or
after the Resolution documentation has been executed, or such earlier time as
the Parties [***]* may agree;
[***]* of the
Resolution Period.  In the event that SanDisk or Toshiba, as
applicable, is unable to resolve such failure during such [***]*, the Parties
shall discuss in good faith alternative arrangements to effect such transfer on
a commercially reasonable basis, and the treatment of payments made under
Section 3.6(c)(ii) during the [***]* to the [***]* of the
Resolution Period, but shall otherwise have no further obligations
hereunder.

     

    
      	
              (d)  

            	
              Other Condition
      Failure.  In the event any Equipment Lease fails to
      transfer [***]*, or
      the Equipment Purchase Closing fails to occur [***]*, due
      to a failure of [***]*, then
      Toshiba and SanDisk will discuss in good faith alternative arrangements to
      effect such transfer on a commercially reasonable
  basis.

            


    

     

    
      	
              3.7  

            	
              Costs and
      Taxes.

            


    

     

    
      	
              (a)  

            	
              SanDisk
      shall be responsible for and shall pay (i) [***]* and
      (ii) [***]*
      collectively the “Lease Transfer
      Costs”).

            


    

     

    
      	
              (b)  

            	
              SanDisk
      shall pay to Toshiba, FP or FA, as applicable, the invoiced Lease Transfer
      Costs [***]*,
      accompanied by evidence itemizing the Lease Transfer Costs and indicating
      that such costs were actually paid by Toshiba, FP or FA, as
      applicable.

            


    

     

    
      	
              (c)  

            	
              After
      the Closing, upon reasonable written notice, the Parties agree to furnish
      or cause to be furnished to each other party, and its officers, directors,
      employees, managers, agents, attorneys, accountants, advisors and
      representatives, as applicable, access, during normal business hours, to
      such information and assistance relating to the Purchased Assets as are
      reasonably necessary for financial reporting and accounting matters
      relating to the Purchased Assets, the preparation and filing of any Tax
      returns or other filings with any Governmental Authority, reports or forms
      relating to the Purchased Assets, the defense of any Tax or other claim or
      assessment relating to the Purchased Assets or, in the case of the
      Sellers, relating to the operation of the Purchased Assets prior to the
      Closing, provided, however, that such access and assistance do not
      unreasonably disrupt the normal operations of Toshiba, FP or
      FA.

            


    

     

    
      	
              (d)  

            	
              To
      the extent not otherwise allocated in this Agreement, the Sellers shall be
      responsible for and shall promptly pay when due all Taxes levied with
      respect to the Purchased Assets transferred at such Closing attributable
      to the taxable period ending on the day immediately preceding such Closing
      Date (such period the “Pre-Closing
      Period”).  To the extent not otherwise allocated in this
      Agreement, Toshiba shall be responsible for and shall promptly pay when
      due all Taxes levied with respect to
the

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          9

          
            

          

        

        
           


        

      

    

    


    Purchased
Assets attributable to any taxable period beginning on the Closing Date (or, in
the case of any tax period which commences on the Closing Date, the portion of
such period beginning on the Closing Date) (such period the “Post-Closing
Period”).  All such Taxes levied with respect to the Purchased
Assets for a taxable period which includes (but does not end on) the Closing
Date shall be apportioned between Toshiba and the Sellers based on the number of
days of such taxable period included in the Pre-Closing Period and the number of
days of such taxable period included in the Post-Closing Period.  The
Sellers shall be liable for the proportionate amount of such Taxes attributable
to the Purchased Assets that is attributable to the Pre-Closing Period, and
Toshiba shall be liable for the proportionate amount of such Taxes that is
attributable to the Post-Closing Period.

     

    4. Representations
and Warranties of Each of the Parties

     

    Each
Party, severally and not jointly, represents and warrants to each other Party
that the following are true and correct as of the date of this
Agreement:

     

    
      	
              4.1  

            	
              Lease
      Agreements.  Except as it has previously informed the
      other Parties hereto, no event has occurred which constitutes a default by
      such Party under, or with the giving of notice or passage of time, would
      constitute a default by such Party under, any provision of an Equipment
      Lease, and the execution, delivery and (assuming receipt of the requisite
      Material Consents) performance of this Agreement by it do not and will
      not breach, violate or conflict with any provision of, or constitute
      (or with the giving of notice or passage of time, constitute) a default
      under, any Equipment
Lease.  

            


    

     

    
      	
              4.2  

            	
              Organization and
      Standing.  It is duly organized and validly existing and,
      where applicable, in good standing under the laws of the jurisdiction in
      which it is organized.

            


    

     

    
      	
              4.3  

            	
              Authority;
      Enforceability.  It has the requisite corporate or
      equivalent power and authority to enter into this Agreement, to execute
      any certificates or other instruments to be executed by it in connection
      with the Equipment Transactions, and otherwise carry out the Equipment
      Transactions.  All corporate or equivalent proceedings required
      to be taken by it to authorize the execution, delivery and performance of
      this Agreement, and any such certificates and instruments, and the
      consummation of the Equipment Transactions, have been or will be as of the
      Closing properly taken.  This Agreement has been duly and
      validly executed and delivered by it and constitutes a valid and binding
      obligation of it, enforceable against it in accordance with its
      terms.

            


    

     

    
      	
              4.4  

            	
              No
      Conflict.  The execution, delivery and performance of
      this Agreement by it do not and will not (a) breach, violate or
      conflict with any provision of its charter documents as amended to date,
      (b) conflict with or violate any law, rule, regulation, order, writ,
      judgment, injunction, decree, determination or award applicable to it, or
      (c) result in the creation or imposition of any Lien on any of the
      Purchased Assets.  Other than pursuant to the Equipment Leases
      or this Agreement, it is under no obligation, absolute or contingent, to
      any Person, with respect to the sale, assignment, lease or sublease or
      other transfer, conveyance or placement of any Lien on any of the
      Purchased Assets.  The term “Lien” as used
      in this Agreement means any lien, pledge, hypothecation, security
      interest, claim, lease, charge, option, right of first refusal, transfer
      restriction, encumbrance or any other restriction or limitation
      whatsoever.  The term “Person” as used
      in this Agreement means any individual, corporation, partnership, limited
      liability company, firm, joint venture, association, joint-stock company,
      trust, unincorporated organization, Governmental Authority or other
      entity.

            


    

     

     

    
      
        
           


        

        
          10

          
            

          

        

        
           


        

      

    

    


     

    
      	
              4.5  

            	
              Brokers’ or Finders’
      Fees.  It has not incurred and will not incur, directly
      or indirectly, any liability for brokerage or finders’ fees or agents’
      commissions or any similar charges in connection with this Agreement or
      the Equipment Transactions [***]*.  It
      has not taken any action or entered into any agreement or understanding
      that will cause any other Party to incur any of the foregoing
      liabilities.

            


    

     

    
      	
              4.6  

            	
              Litigation.  There
      is no Action pending, or, to its knowledge, threatened, or directly
      relating to the Equipment Transactions and which, if successful, would
      materially impair such Party’s ability to consummate the Equipment
      Transactions.  There is no judgment, order, writ or decree that
      substantially restrains its ability to consummate the Equipment
      Transactions.

            


    

     

    5. Representations
and Warranties of the Sellers

     

    FP,
solely with respect to the FP Purchased Assets, and FA, solely with respect to
the FA Purchased Assets, represents and warrants, severally and not jointly, to
Toshiba that the following are true and correct as of the date of this
Agreement:

     

    
      	
              5.1  

            	
              Equipment.  It
      holds good and marketable title to the Owned Equipment, free and clear of
      any Liens other than any security interest held by the Parties which shall
      be removed from the applicable Equipment as such Equipment is transferred
      pursuant to this Agreement, and is a lessee of the Leased
      Equipment.  Such Equipment is in good operating condition and
      repair, subject only to ordinary wear and tear.  To its
      knowledge, the current use and operation of such Equipment are in
      compliance in all material respects with all Applicable
      Laws.  Except as set forth on Schedule 5.1, it has not
      received any notice that the possession or operation of any such Equipment
      does not or did not comply with Applicable Law. There is no Action pending
      or, to its knowledge, threatened, relating to or affecting the Purchased
      Assets.  The term “Applicable Law”
      as used in this Agreement means, with respect to a Person, any domestic or
      foreign, national, federal, territorial, state or local constitutions,
      statues, laws (including principles of common law), treaties, ordinances,
      rules, administrative interpretations, regulations, orders, writs,
      injunctions, legally binding directives, judgments, decrees or other
      requirements or restrictions of any arbitrator or Government Authority
      applicable to such Person or any of its affiliates, properties, assets,
      officers, directors, employees, consultants or agents in connection with
      such officer’s, director’s, employee’s, consultant’s or agent’s activities
      on behalf of such Person or any of its
  affiliates.

            


    

     

    
      	
              5.2  

            	
              Permits.  It
      has obtained all material permits and other authorizations (collectively,
      “Permits”)
      necessary for the ownership, operation and use of the Purchased Assets in
      substantially the same manner as currently owned, operated and used and
      each Permit is valid and remains in full force and effect.  It
      is not in default (nor has it failed to comply), nor has it received any
      notice of any claim of default or failure to comply, with respect to any
      Permit.

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          11

          
            

          

        

        
           


        

      

    

    


    
      	
              5.3  

            	
              Equipment
      Leases.  Each of the Equipment Leases to which it is a
      Party is in full force and effect and each constitutes a legal, valid and
      binding agreement, enforceable in accordance with its terms, subject to
      laws of general application relating to bankruptcy, insolvency, and the
      relief of debtors, and no term or condition thereof has been amended from
      the form provided to Toshiba. Except as it has previously informed the
      other Parties hereto, there are no defaults by it under any of the
      Equipment Leases and no events have
      occurred that with notice or the lapse of time, or action or inaction by
      any party thereto, would result in a violation thereof or a default
      thereunder.   There is no Action to which it is a party in
      which relief is sought involving, affecting or relating in any manner to
      any of the Equipment Leases, and, to its knowledge, there is no Action
      pending or threatened against it involving, affecting or relating to any
      of the Equipment Leases.  None of its rights under any of the
      Equipment Leases will be materially impaired by the Equipment
      Transactions, and all rights to be transferred to Toshiba in accordance
      with this Agreement will inure to, and be enforceable by, Toshiba after
      the applicable Closing Date without any authorization, approval,
      permission or license of, or filing with, any
  Person.

            


    

     

    
      	
              5.4  

            	
              No Other
      Agreements.  It has no legal obligation, absolute or
      contingent, to any Person other than Toshiba to sell, assign, lease or
      sublease or otherwise transfer, convey or place any Lien on any of the
      Purchased Assets.

            


    

     

    6. Covenants

     

    
      	
              6.1  

            	
              Operation of the
      Business.

            


    

     

    
      	
              (a)  

            	
              The
      Sellers agree, prior to the Closing, (i) to operate the Purchased Assets
      in the ordinary course of business, and (ii) to maintain the Equipment in
      good operating condition, subject, only to ordinary wear and tear, each as
      consistent with the Sellers’ past practices, and (iii) to promptly
      inform Toshiba of any destruction, damage to or loss of any of the
      Purchased Assets that has resulted in a material reduction in the value of
      the Purchased Assets.  The Sellers further agree, prior to the
      Closing, to use all commercially reasonable efforts to transfer or
      otherwise make available to Toshiba, at each Seller’s expense, the benefit
      of all warranties and similar protections applicable to the
      Equipment.

            


    

     

    
      	
              6.2  

            	
              Equipment
      Leases.  Until the Closing, the Sellers agree to maintain
      all rights and obligations in, to and under the Equipment Leases in full
      force and effect.

            


    

     

    
      	
              6.3  

            	
              Approvals and
      Consents.  The Parties agree to use commercially
      reasonable efforts to take promptly, or cause to be taken, all actions,
      and to do promptly, or cause to be done, all things necessary and proper
      under Applicable Law to consummate and make effective the Equipment
      Transactions, to obtain all necessary waivers, consents and approvals and
      to effect all necessary registrations and filings and to remove any
      injunctions or other impediments or delays, legal or otherwise, in order
      to consummate and make effective the Equipment Transactions for the
      purpose of securing to the Parties hereto the benefits contemplated by
      this Agreement.  Such waivers, consents and approvals are listed
      on Schedule 6.3 attached
      hereto (the “Material
      Consents”).  

            


    

     

    
      	
              6.4  

            	
              Shareholder
      Actions.  The Parties that are shareholders of the
      Sellers agree to exercise their voting and other governance powers over
      the Sellers to further the execution, 

                delivery
      and performance of this Agreement and the consummation of the Equipment
      Transactions.  The Parties that are shareholders in the Sellers
      agree to cause their representatives on the boards of directors of the
      Sellers, in a manner consistent with their fiduciary duties under the
      Companies Act (Japan), to vote and to take other director actions to
      further the execution, delivery and performance of this Agreement, and the
      consummation of the Equipment Transactions.  The Parties that
      are shareholders in the Sellers agree to take no action that would cause
      any representation or warranty of the Sellers contained in Articles 4 or 5
      to be untrue.  The Sellers and the SanDisk Parties shall provide
      reasonable cooperation to Toshiba in connection with the lease
      arrangements described in Section 3.6
  above.

              

            


    

     

    


    
      
        
           


        

        
          12

          
            

          

        

        
           


        

      

    

    


     

    
      	
              6.5  

            	
              Further
      Assurances.  The Parties agree to cooperate to execute
      and deliver such further documents, certificates, agreements and to take
      such other actions as may be reasonably requested to evidence or reflect
      the transactions contemplated by this Agreement and to carry out the
      intentions of this Agreement.

            


    

     

    7. Conditions
Precedent to the Sellers’ Obligations at the First Closing

     

    The
obligations of Sellers to effect the first Closing are subject to satisfaction
of the following conditions at or prior to the first Closing (unless expressly
waived in writing by FP or FA as applicable at or prior to the first
Closing):

     

    
      	
              7.1  

            	
              No Legal
      Action.  No Action relating to the Equipment Transactions
      shall have been instituted against any of the Parties hereto before any
      court or by any Governmental Authority which restrains or prohibits the
      Equipment Transactions.

            


    

     

    
      	
              7.2  

            	
              Accuracy of
      Representations and Warranties.  Each of the
      representations and warranties of Toshiba contained in this Agreement, or
      in any other agreement signed and delivered contemporaneously with this
      Agreement by or on behalf of Toshiba in connection with the transactions
      contemplated hereby, shall be true and correct in all material respects as
      of the Closing Date with the same effect as though such representations
      and warranties had been made on and as of the Closing
  Date.

            


    

     

    
      	
              7.3  

            	
              Performance of
      Obligations.  Toshiba shall have in all material respects
      performed and complied with all of the agreements, covenants and
      obligations required under this Agreement (including each of the attached
      Exhibits), and under the Transaction Agreements set forth in Section
      2.1(a) of the JVRA, to be performed or complied with by Toshiba prior to
      or at the Closing.

            


    

     

    
      	
              7.4  

            	
              Governmental
      Approvals.  All material filings that are required, if
      any, to have been made by the Parties with any Governmental Authority in
      order to carry out this Agreement shall have been made and all material
      authorizations, consents and approvals from any Governmental Authority
      required to carry out this Agreement shall have been received and any
      applicable waiting periods shall have
expired.

            


    

     

    
      	
              7.5  

            	
              Compliance
      Certificate.  Toshiba shall have delivered to the Sellers
      a certificate, executed by the appropriate officers of Toshiba, certifying
      that the conditions specified in Sections 7.2 and 7.3 (insofar as
      they are to be performed by Toshiba) have been
  fulfilled.

            


    

     

    


    
      
        
           


        

        
          13

          
            

          

        

        
           


        

      

    

    


    
      	
              7.6  

            	
              JVRA.  The
      JVRA shall be in full force and effect, and each Party thereto (other than
      the SanDisk Parties) shall have in all material respects performed and
      complied with

            


    

     

    
      	
              7.7  

            	
               all
      of the agreements, covenants and obligations required under the JVRA
      (including each of the Exhibits thereto) to be performed or complied
      with by them prior to or at such
time.

            


    

     

    8. Conditions
Precedent to Toshiba’s Obligations at the First Closing 

     

    The
obligations of Toshiba to effect the first Closing are subject to satisfaction
of the following conditions at or prior to the first Closing (unless expressly
waived in writing by Toshiba in its discretion at or prior to the first
Closing):

     

    
      	
              8.1  

            	
              Conveyance.  The
      Sellers will have executed and delivered to Toshiba the FP and
      FA  Bills of Sale, the FP and FA Assignment and Assumption
      Agreements, and any other certificates, instruments or documents required
      pursuant to the provisions of this Agreement or otherwise necessary to
      transfer the Owned Equipment to Toshiba in accordance with the terms
      hereof.

            


    

     

    
      	
              8.2  

            	
              No Legal
      Action.  No Action relating to the Equipment Transactions
      shall have been instituted against any of the Parties hereto before any
      court or by any Governmental Authority which restrains or prohibits the
      Equipment Transactions.

            


    

     

    
      	
              8.3  

            	
              Accuracy of
      Representations and Warranties.  Each of the
      representations and warranties of the Sellers and the SanDisk Parties
      contained in this Agreement, or in any agreement signed and delivered
      contemporaneously with this Agreement by or on behalf of FP, FA or any
      SanDisk Party in connection with the transactions contemplated hereby,
      shall be true and correct in all material respects as of the Closing Date
      with the same effect as though such representations and warranties had
      been made on and as of the Closing
Date.

            


    

     

    
      	
              8.4  

            	
              Performance of
      Obligations.  The Sellers and the SanDisk Parties shall
      have in all material respects performed and complied with all of their
      agreements, covenants and obligations under this Agreement, and under the
      Transaction Agreements set forth in Section 2.1(a) of the JVRA, to be
      performed or complied with by them prior to or at the
    Closing.

            


    

     

    
      	
              8.5  

            	
              [***]*.

            


    

     

    
      	
              8.6  

            	
              Consents and
      Waivers.  The Sellers shall have obtained all Material
      Consents.

            


    

     

    
      	
              8.7  

            	
              Governmental
      Approvals.  All material filings that are required to
      have been made by the Parties with any Governmental Authority in order to
      carry out the terms of this Agreement shall have been made and all
      material authorizations, consents and approvals from any Governmental
      Authority required therefor shall have been obtained and any applicable
      waiting periods thereunder shall have
expired.

            


    

     

    
      	
              8.8  

            	
              Compliance
      Certificate.  Each of FP, FA and SanDisk (on behalf of
      all the SanDisk Parties) shall have
      delivered to Toshiba a certificate, executed by the appropriate officers
      of FP, FA or SanDisk as applicable, certifying that the conditions
      specified in Sections 8.3 and 8.4 (insofar as they are to be
      performed by FP, FA or SanDisk) have been
  fulfilled.

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          14

          
            

          

        

        
           


        

      

    

    


    
      	
              8.9  

            	
              JVRA.  The
      JVRA shall be in full force and effect, and each Party thereto (other than
      Toshiba) shall have in all material respects performed and complied with
      all of its agreements, covenants and obligations under the JVRA to be
      performed or complied with by them prior to or at such
    time.

            


    

     

    
      	
              8.10  

            	
              Material Adverse
      Effect.  There shall not have been any Material Adverse
      Effect with respect to the Purchased Assets.  As used in this
      Agreement, the term “Material Adverse
      Effect” means a change or changes or effect or effects (including
      work stoppages) that individually or in the aggregate are or may
      reasonably be expected to be materially adverse to the Purchased Assets or
      the ownership, possession or use thereof as of the date of this Agreement
      or as of the Closing Date; provided,
      however, that “Material Adverse Effect” shall not include: (i) any
      changes in the ordinary course of business, (ii) any changes in the
      financial or credit markets, including any adverse change in the market
      prices of the securities or the credit ratings of Toshiba or SanDisk, and
      (iii) any changes in the market for NAND flash, or affecting manufacturers
      of NAND flash generally.

            


    

     

    
      	
              8.11  

            	
              No Breach of Equipment
      Leases.  There shall not have occurred and be continuing
      a breach of any covenant under any of the existing leases with respect to
      any equipment leased by the Sellers; provided, however, this Section shall
      not apply to the transfer of Owned
Equipment.

            


    

     

    9. Conditions
Precedent to the Subsequent Closings

     

    The
obligations of the Sellers and Toshiba to effect each Subsequent Closing are
subject to satisfaction of the following conditions at or prior to each
Subsequent Closing (unless expressly waived in writing by the Party having the
benefit thereof in its discretion at or prior to such Subsequent
Closing):

     

    
      	
              9.1  

            	
              Prior
      Conditions.  Each of the conditions to such Party’s
      obligations in Article 7 or 8 shall be satisfied as of the relevant
      Subsequent Closing Date.

            


    

     

    
      	
              9.2  

            	
              SanDisk Guarantee
      Obligations. SanDisk shall have received evidence of the fact that
      its obligations as a guarantor of the Equipment Leases have been reduced
      to reflect the transfer of the Leased Equipment to take place at such
      Subsequent Closing.

            


    

     

    
      	
              9.3  

            	
              Assignment and
      Assumption Agreement.  The relevant Parties shall have
      executed the FP and FA Assignment and Assumption Agreements and any other
      certificates, instruments or documents required pursuant to the provisions
      of this Agreement or otherwise necessary to transfer the Assumed
      Liabilities to Toshiba in accordance with the terms hereof, and to
      consummate the Equipment
Transactions.

            


    

     

    10. Indemnification

     

    
      	
              10.1  

            	
              Each
      Party agrees to, and does hereby, indemnify (an “Indemnifying
      Party”) and hold harmless each of the other Parties from and
      against any and all losses arising out of, or based upon, the gross
      negligence or willful misconduct of such Indemnifying Party under this
      Agreement.  

            


    

     

    
      	
              10.2  

            	
              Damages
      Limited.
      IN THE ABSENCE OF ACTUAL FRAUD, IN NO EVENT SHALL ANY PARTY BE
      LIABLE TO OR BE REQUIRED TO INDEMNIFY ANY OTHER PARTY OR ANY OF THEIR
      RESPECTIVE AFFILIATES FOR ANY

            


    

     

    
      SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGE OF ANY KIND, (INCLUDING WITHOUT
LIMITATION LOSS OF PROFIT OR DATA), WHETHER OR NOT ADVISED OF THE POSSIBILITY OF
SUCH LOSS.

    

    


    
      
        
           


        

        
          15

          
            

          

        

        
           


        

      

    

     

    
 

    
      	
              10.3  

            	
              [***]*.

            


    

     

    
      	
              10.4  

            	
              Sole
      Remedy.  Other than the payment of Lease Transfer Costs
      as set forth in Section 3.7, rights to equitable relief and, to the extent
      available under Applicable Law, claims for fraud, the sole remedy
      available to any Party for breaches of this Agreement shall be limited to
      the rights set forth in this Article
  10.  

            


    

     

    11. Termination
of the Agreement

     

    
      	
              11.1  

            	
              Termination.  This
      Agreement and the Equipment Transactions may be
  terminated:

            


    

     

    
      	
              (a)  

            	
              at
      any time, by mutual written consent of the Sellers, SanDisk and
      Toshiba;

            


    

     

    
      	
              (b)  

            	
              at
      any time, by one Party (as between Toshiba and SanDisk) if it is not in
      material breach of its representations, warranties, covenants and
      agreements under this Agreement and there has been a material breach of
      any representation, warranty, covenant or agreement contained in this
      Agreement on the part of the other Party (as between Toshiba and SanDisk)
      and (i) such Party has not cured such breach within the later of (a) [***]* after
      the other Party has given notice of such breach to such Party (provided
      however, that, no cure period shall be required for breach which by its
      nature cannot be cured) or (b) the end of the Resolution Period set forth
      in Section 3.6(c) and (ii) as a result of such breach any of the
      conditions set forth in Articles 7 or 8 would not be satisfied prior to
      the Closing Date, as such date may be adjusted in accordance with Section
      3.6(c);

            


    

     

    
      	
              (c)  

            	
              by
      any Party by written notice if there shall be a final nonappealable order
      of a court of competent jurisdiction in effect preventing consummation of
      the Equipment Transactions; or

            


    

     

    
      	
              (d)  

            	
              by
      any Party by written notice if there shall be any statute, rule,
      regulation or order enacted, promulgated or issued or deemed applicable to
      the Equipment Transactions by any Governmental Authority that would make
      consummation of any of the Equipment Transactions
  illegal.

            


    

     

    12. General
Provisions

     

    
      	
              12.1  

            	
              Payment of
      Expenses.  Except as otherwise provided in this
      Agreement, each of the Sellers, the SanDisk Parties and Toshiba will bear
      its own expenses incurred in connection with this Agreement and the
      consummation of the Equipment Transactions, including the fees and
      expenses of attorneys, accountants, brokers, finders and any other
      advisors engaged by each Party.

            


    

     

    
      	
              12.2  

            	
              Relationship of the
      Parties.  The Sellers, the SanDisk Parties and Toshiba
      will at all times be independent contractors, and nothing in this
      Agreement will be construed as creating a joint venture, partnership or
      agency relationship between the
Parties.

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          16

          
            

          

        

        
           


        

      

    

    


    
      	
              12.3  

            	
              Notices.  Any
      notice or other communication required or permitted to be delivered to any
      party under this Agreement shall be in writing and shall be deemed
      properly delivered, given and received when delivered (by hand, by
      registered mail, by courier or express delivery service or by telecopier)
      to the address or telecopier or facsimile number set forth beneath the
      name of such Party below (or to such other address or telecopier number as
      such Party shall have specified in a written notice given to the other
      Party hereto):

            


    

     

    if to
Toshiba, to:

    


    Toshiba
Corporation

    Semiconductor
Company

    1-1-1
Shibaura

    Minato-ku,
Tokyo 105-8001 Japan

    Attention:
Vice President

    [***]*

    [***]*

    


    with
copies (which shall not constitute notice) to:

     

    Toshiba
Corporation

    Semiconductor
Company

    Legal
Affairs Division

    1-1-1
Shibaura

    Minato-ku,
Tokyo 105-8001 Japan

    Attention:
General Manager

    [***]*

     

    [***]*

     

    and
to:

     

    Morrison
& Foerster, LLP

    Shin-Marunouchi
Building 29F

    1-5-1
Marunouchi

    Chiyoda-ku,
Tokyo 100-6529 Japan

    Attention:
[***]*

    [***]* 

    [***]*

    


    if to the
Sellers, to:

     

    Flash
Alliance, Ltd.

    800
Yamanoisshikicho,

    Yokkaichi,
Mie, Japan

    Attention:
President

    


     

    


    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          17

          
            

          

        

        
           


        

      

    

    


    and
to:

     

    Flash
Partners, Ltd.

    800
Yamanoisshikicho,

    Yokkaichi,
Mie, Japan

    Attention:
President

    


    with
copies to:

     

    SanDisk
Corporation

    601
McCarthy Boulevard

    Milpitas,
CA 95035 USA

    Attention:
Chief Operating Officer

    [***]*

    [***]*

    


    and
to:

     

    Toshiba
Corporation

    Semiconductor
Company

    Legal
Affairs Division

    1-1-1
Shibaura

    Minato-ku,
Tokyo 105-8001 Japan

    Attention:
General Manager

    [***]*

     

    [***]*

     

    if to a
SanDisk Party, to:

     

    SanDisk
Corporation

    601
McCarthy Boulevard

    Milpitas,
CA 95035 USA

    Attention:
President and CEO

    [***]*

    [***]*

    


    with
copies to:

     

    SanDisk
Corporation

    601
McCarthy Boulevard

    Milpitas,
California 95035 USA

    Attention:
Vice President and General Counsel

    [***]*

    [***]*

    
 

     

    


    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          18

          
            

          

        

        
           


        

      

    

              

     

    and
to:

     

    Jones
Day

    Kamiyacho Prime Place

    1-17, Toranomon Place

    Minato-ku,
Tokyo 105-0001, Japan

    Attention:
Nobutoshi Yamanouchi

    [***]*

    [***]*

    


    
      	
              12.4  

            	
              Governing Law; Dispute
      Resolution.  This Agreement will be governed by and
      construed, and the rights and obligations of the Parties shall be
      determined, in accordance with the laws of California without giving
      effect to principles of conflict of laws.  Any dispute
      concerning this Agreement shall be referred to the Management Committee
      (as that term is defined in Section 6.9 of the Flash Alliance Master
      Agreement) and handled by it in accordance with the Flash Alliance Master
      Agreement.  If the Management Committee cannot resolve such
      dispute in accordance with the terms of the Master Agreement, then such
      dispute will be settled by binding arbitration in San Francisco,
      California.  The dispute shall be heard by a panel of three
      arbitrators pursuant to the rules of the International Chamber of
      Commerce.  The awards of such arbitration shall be final and
      binding upon the parties thereto.  Each party will bear its own
      fees and expenses associated with the arbitration.  Filing fees
      and arbitrator fees charged by the ICC shall be borne equally by the
      Parties.

            


    

     

    
      	
              12.5  

            	
              Assignability;
      Third-Party Rights.  This Agreement shall be binding upon
      the Sellers and their successors and permitted assigns (if any), the
      SanDisk Parties and their successors and permitted assigns (if any) and
      Toshiba and its successors and permitted assigns (if any).  This
      Agreement shall inure to the benefit of the Sellers and Toshiba and their
      respective successors and permitted assigns (if any).  This
      Agreement may not be assigned by either Party without the prior written
      consent of the other Party.  Nothing in this Agreement, express
      or implied, will be deemed to confer upon any other Person, any rights or
      remedies under, or by reason of, this
Agreement.

            


    

     

    
      	
              12.6  

            	
              Waiver.  No
      failure or delay on the part of any Party hereto to exercise any right or
      remedy under this Agreement shall operate as a waiver of such right or
      remedy, and no single or partial exercise of any such right or remedy
      shall preclude any other or further exercise thereof.  No Party
      shall be deemed to have waived any claim arising out of this Agreement, or
      any right or remedy under this Agreement, unless the waiver of such claim,
      right or remedy is expressly set forth in a written instrument duly
      executed and delivered on behalf of such
Party.

            


    

     

    
      	
              12.7  

            	
              Amendments.  This
      Agreement may not be amended, modified or supplemented other than by a
      written instrument duly executed and delivered by a duly authorized
      officer on behalf of each of the
Parties.

            


    

     

    
      	
              12.8  

            	
              Headings.  The
      section and other headings contained in this Agreement are for reference
      purposes only and will not in any way affect the meaning, or
      interpretation of this Agreement.

            


    

     

    
      	
              12.9  

            	
              Preparation of this
      Agreement.  Each of Toshiba and the SanDisk Parties
      hereby acknowledges and agrees that (a) Toshiba and the SanDisk Parties
      jointly and equally participated in the drafting of this Agreement and all
      other agreements contemplated

            


    

     

    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
          19

          
            

          

        

        
           


        

      

    

    


    hereby,
(b) Toshiba and the SanDisk Parties have been adequately represented and advised
by legal counsel with respect to this Agreement and the Equipment Transactions
and (c) no presumption shall be made that any provision of this Agreement shall
be construed against any Party by reason of such role in the drafting of this
Agreement and any other agreement contemplated hereby.

     

    
      	
              12.10  

            	
              Severability.  If
      any provision of this Agreement or the application thereof, becomes or is
      declared by a court of competent jurisdiction to be illegal, void or
      unenforceable, the remainder of this Agreement will continue in full force
      and effect and the application of such provision to other persons or
      circumstances will be interpreted so as reasonably to effect the intent of
      the Parties hereto.  The Parties’ further agree to replace such
      void or unenforceable provision of this Agreement with a valid and
      enforceable provision that will achieve, to the extent possible, the
      economic, business and other purposes of such void or unenforceable
      provision.

            


    

     

    
      	
              12.11  

            	
              Entire
      Agreement.  The schedules and exhibits attached hereto
      are incorporated into this Agreement by reference.  This
      Agreement and the schedules and exhibits hereto, and the JVRA, constitute
      the entire agreement between the Parties with respect to the subject
      matter hereof and supersede all prior agreements and understandings both
      written and oral between the Parties with respect to the subject matter
      hereof, including the memorandum of understanding by and among Toshiba,
      SanDisk and SanDisk Ireland dated October 20,
  2008.

            


    

     

    
      	
              12.12  

            	
              Counterparts.  This
      Agreement may be executed in counterparts, each of which when so executed
      will be deemed to be an original, and all such counterparts will together
      constitute but one and the same instrument.  Execution and
      delivery of this Agreement by exchange of facsimile copies bearing the
      facsimile signature of a Party shall constitute a valid and binding
      execution and delivery of this Agreement by such
  Party.

            


    

     

    
      	
              12.13  

            	
              No Representations or
      Warranties.  EXCEPT AS EXPRESSLY SET FORTH IN THE
      REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, NO PARTY MAKES
      ANY REPRESENTATIONS OR WARRANTIES REGARDING THE STATUS OR CONDITION OF THE
      PURCHASED ASSETS, WHETHER EXPRESS OR IMPLIED, AND NO WARRANTY OF
      MERCHANTABILITY, FITNESS FOR INTENDED OR PARTICULAR USE OR
      OTHERWISE

            


    

     

    [Remainder of page
intentionally left blank.]

     

    


    
      
        
           


        

        
          20

          
            

          

        

        
           


        

      

    

    


    IN
WITNESS WHEREOF, Toshiba, the Sellers and the SanDisk Parties have each caused
this Agreement to be executed as of the date first written above.

     

    
      	
              “FP”

              FLASH
      PARTNERS LIMITED

              By
      ________________________________

              Name
      ______________________________

              Title
      _______________________________

               

            	
              “FA”

              FLASH
      ALLIANCE LIMITED

              By
      ________________________________

              Name
      ______________________________

              Title
      _______________________________

            
	
              “TOSHIBA”

              TOSHIBA
      CORPORATION

              By
      ________________________________

              Name
      ______________________________

              Title
      _______________________________

               

            	
              “SANDISK”

              SANDISK
      CORPORATION

              By
      ________________________________

              Name
      ______________________________

              Title
      _______________________________

            
	
              “SANDISK
      CAYMAN”

              SANDISK
      (CAYMAN) LIMITED

              By
      ________________________________

              Name
      ______________________________

              Title
      _______________________________

            	
              “SANDISK
      IRELAND”

              SANDISK
      (IRELAND) LIMITED

              By
      ________________________________

              Name
      ______________________________

              Title
      _______________________________

            


    

    


    
      
        
          
            


            [Signature
page to Equipment Purchase Agreement]

          

           


        

        
          21

          
            

          

        

        
           


        

      

    

    


    Schedule
3.2

    


    
      	
               
      

            	
              [***]*
      

            


    

    


    


    

      

    

      
      * Indicates
that certain information contained herein has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.

       

    

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Schedule
5.1

    


    None.

    


    
      
        
           


        

        
           


          
            

          

        

        
           


        

      

    

    


    Schedule
6.3

    


    Material
Consents

    


    Consent
of all the lessor parties to the Assignment and Assumption Agreements attached
hereto as Exhibits A and C.