exv10w3



 





EXHIBIT 10.3

FOIA Confidential Treatment Requested

Execution Version




SECOND AMENDED AND RESTATED




COMMON R&D AND PARTICIPATION AGREEMENT



This SECOND AMENDED AND RESTATED COMMON R&D AND PARTICIPATION AGREEMENT, dated as of July 7, 2006,
is made and entered into by and between Toshiba Corporation, a Japanese corporation with a
principal place of business at 1-1, Shibaura 1-chome, Minato-ku, Tokyo 105-8001, Japan (hereinafter
“Toshiba”), and SanDisk Corporation, a Delaware corporation, with a principal place of
business at 601 McCarthy Boulevard, Milpitas, CA 95035, U. S. A. (hereinafter “SanDisk” and
collectively with Toshiba, the “Parties”).



WHEREAS, Toshiba and SanDisk Corporation are parties to that certain Amended and Restated Common
R&D and Participation Agreement, dated as of September 10, 2004 (the “Prior Agreement”);
and



WHEREAS, Toshiba and SanDisk desire to amend and restate 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 “SanDisk Personnel” 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. A
written list of such SanDisk Personnel shall be mutually agreed to by the Common R&D
Representatives.




          1.4 “Effective Date” shall mean July 7, 2006.




          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.






 




			
	*	 	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.




1









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version









          1.7 “Agreement” shall mean this Second 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 “FP Master Agreement” shall mean that certain Flash Partners Master Agreement, dated as of
September 10, 2004, by and among Toshiba, SanDisk and SanDisk (Cayman) Limited.




          1.9 “Flash Alliance Master Agreement” shall mean that certain Flash Alliance Master Agreement,
dated as of the date hereof, by and among Toshiba, SanDisk and SanDisk (Ireland) Limited.




          1.10 “Residuals” shall mean that technical information which may be retained in the memories
of SanDisk Personnel who have had rightful access to Toshiba’s proprietary information and Contract
Technology.




          1.11
“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 SanDisk Personnel 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, subject to review and discussion
by the Common R&D Representatives (as defined below) at the quarterly meetings; 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 SanDisk Personnel 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 SanDisk Personnel 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, subject to review and
discussion by the Common R&D Representatives at the quarterly meetings. In order to perform the
Development Work, Toshiba shall (at its sole expense) provide the SanDisk Personnel with sufficient
office equipment, including personal computers and telephones.




          2.2 Immediately after the Effective Date, each Party shall designate three (3) appropriate
individuals who will constitute the Common R&D Representatives (the “Common R&D
Representatives”). The Common R&D Representatives will meet regularly (quarterly), to




2









 






EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version






review, discuss and determine direction of NAND future project plans and SanDisk participation
in the Development Work.




          2.3 SanDisk shall ensure that its SanDisk Personnel 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 SanDisk Personnel 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 SanDisk Personnel and workers insurance for SanDisk
Personnel and shall indemnify and hold Toshiba harmless from any claims against Toshiba arising out
of any injury to any SanDisk Personnel.




          2.4 Except as provided in the FP Master Agreement or Flash Alliance Master Agreement, as
applicable, SanDisk shall be responsible for the living, traveling and all other out-of-pocket
expenses for its SanDisk Personnel.




          2.5 The amendment and restatement in Section 7 is conditioned upon 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, subject to review and discussion by
the Common R&D Representatives at the quarterly meetings. 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.




          2.6 [*]




          2.7 [*]




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 excluding patents) made or generated by Toshiba and/or SanDisk Personnel 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.






 




			
	*	 	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









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version









          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 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 SanDisk Personnel 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




4









 







EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version






develop, have developed, 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.




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 or Y4 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 FP Operative Documents, the Flash Alliance 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) Within thirty (30) days of the end of each calendar quarter for the calendar quarters from
April 1, 2006 to March 31, 2007 based on SanDisk’s Net Sales of NAND Flash Memory Products for the
quarter just ended as follows:




	 	(i)	 	[*]
	 
	 	(ii)	 	[*]
	 
	 	(iii)	 	[*]





               (b) Within thirty (30) days of the end of each calendar quarter for the calendar quarters from
April 1, 2007 to March 31, 2009 based on SanDisk’s Net Sales of NAND Flash Memory Products for the
quarter just ended as follows:




	 	(i)	 	[*]
	 
	 	(ii)	 	[*]
	 
	 	(iii)	 	[*]





               (c) [*]



               (d) For purposes of this Section 5.1, “Net Sales of NAND Flash Memory Products” shall mean
[*]:




	 	(i)	 	[*]







 




			
	*	 	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









 







EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version










	 	(ii)	 	[*]
	 
	 	(iii)	 	[*]





               (e) Notwithstanding Sections 5.1(a), (b) and (c) and subject to Section 5.1(f), SanDisk’s
quarterly contribution for Common R&D pursuant to Sections 5.1(a), (b), (c) and (d) 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 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 [*].



               (f) In the event that any Common R&D activities have been done [*] pursuant to Section
6.6(a)(i) of the FP Master Agreement or [*] pursuant to Sections 6.1 or 6.8(a)(i) of the Flash
Alliance Master Agreement, SanDisk shall bear any and all charges incurred by each of Flash
Partners or Flash Alliance from such Common R&D activities at, [*], and SanDisk’s total
contribution for Common R&D charges pursuant to (a), (b), (c), (d) and (e) of this Section 5.1
shall be reduced by such SanDisk Y3 &Y4 Common R&D Charges; in the event such SanDisk Y3 & Y4
Common R&D Charges exceed in any given quarter the amount for such quarter set forth in paragraphs
(a), (b), (c), (d) and (e) of this Section 5.1, unless otherwise agreed upon by the Parties, [*] of
SanDisk Y3 & Y4 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 (a),
(b), (c), (d) and (e) 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.



               (g) 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.



               (h) 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.






 




			
	*	 	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









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version









          5.3 Payments of the fees provided for in Section 5.1 (other than Section 5.1(a), 5.1(b) and
5.1(c)), 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, 2006, 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 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, Y3 NAND Flash Memory
Products and Y4 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.






 




			
	*	 	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









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version



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.




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 SanDisk Personnel at Toshiba’s facilities shall
be treated as Toshiba Confidential Information.




          8.2 During the [*] years 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






 




			
	*	 	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









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version








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 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 other than a
tool vendor, 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.
If SanDisk desires to work with a tool vendor and to disclose Toshiba’s Confidential Information
to the tool vendor, SanDisk shall first discuss the matter in advance with Toshiba including why it
considers such disclosure to be necessary or appropriate. Any such disclosure shall remain subject
to Toshiba’s written consent in each instance, which it may withhold or condition in its sole
discretion to protect its interests in its Confidential Information.




9









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version







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, the FP
Master Agreement or the Flash Alliance 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, the FP
Master Agreement or the Flash Alliance 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.



          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 provisions 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.




10









 





EXHIBIT
10.3

FOIA Confidential Treatment Requested

Execution Version





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 or the United States, including the U.S.
Export Administration Regulations, without the prior authorization from the appropriate
governmental authorities. Neither Party will use technical information supplied by the other Party
hereunder for any purpose to develop or manufacture nuclear, chemical, biological weapons or
missiles (hereafter “weapons of mass destruction”). Each Party agrees that it will not knowingly
sell any products manufactured using the other Party’s technical information to any third 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









 





EXHIBIT 10.3

FOIA Confidential Treatment Requested

Execution Version







          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:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Name:

	 	Masashi Muromachi
	 	 	 	Name:
	 	Eli Harari	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	President and CEO
	 	 	 	Title:
	 	Chief Executive Officer	 	 
	 

	 	Semiconductor Company	 	 	 	 	 	 	 	 
	 

	 	Corporate Executive Vice President	 	 	 	 	 	 	 	 






[Signature page to Amended and Restated Common R&D and Participation Agreement]




 









 





EXHIBIT 10.3

FOIA Confidential Treatment Requested

Execution Version







EXHIBIT A

(Contract Technology)




[*]




      



      



      



      



      



      





 




			
	*	 	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.




 









 





EXHIBIT 10.3

FOIA Confidential Treatment Requested

Execution Version









EXHIBIT B




(Development Work for Contract Technology)




[*]




      



      



      



      



      



      





 




			
	*	 	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.