As filed with the U.S. Securities and Exchange Commission on November 25, 2024

File No. [*]

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10

GENERAL FORM FOR REGISTRATION OF SECURITIES

PURSUANT TO SECTION 12(b) OR (g) OF

THE SECURITIES EXCHANGE ACT OF 1934

Sandisk Corporation

(Exact name of registrant as specified in its charter)

951 Sandisk Drive

Milpitas, California 95035

(Address of principal executive offices)

Registrant’s telephone number, including area code:

(408) 801-1000

Securities to be registered pursuant to Section 12(b) of the Exchange Act:

Securities to be registered pursuant to Section 12(g) of the Exchange Act: None

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act:

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

Sandisk Corporation

INFORMATION REQUIRED IN REGISTRATION STATEMENT

CROSS-REFERENCE SHEET BETWEEN INFORMATION STATEMENT AND ITEMS OF

FORM 10

Certain information required to be included in this Form 10 is incorporated by reference to specifically identified portions of the body of the information statement filed herewith as Exhibit 99.1. None of the information contained in the information statement shall be incorporated by reference herein or deemed to be a part hereof unless such information is specifically incorporated by reference.

Item 1. Business.

The information required by this item is contained under the sections of the information statement entitled “Information Statement Summary,” “Summary of the Separation and Distribution,” “Risk Factors,” “Forward-Looking Statements,” “The Separation and Distribution,” “Business,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Certain Relationships and Related Transactions” and “Where You Can Find More Information.” Those sections are incorporated herein by reference.

Item 1A. Risk Factors.

The information required by this item is contained under the sections of the information statement entitled “Information Statement Summary,” “Risk Factors” and “Forward-Looking Statements.” Those sections are incorporated herein by reference.

Item 2. Financial Information.

The information required by this item is contained under the sections of the information statement entitled “Summary of Historical and Unaudited Pro Forma Condensed Combined Financial Data,” “Risk Factors,” “Capitalization,” “Unaudited Pro Forma Condensed Combined Financial Information,” “Notes to Unaudited Pro Forma Condensed Combined Financial Information,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Index to Combined Financial Statements” (and the financial statements and related notes referenced therein). Those sections are incorporated herein by reference.

Item 3. Properties.

The information required by this item is contained under the section of the information statement entitled “Business—Properties.” That section is incorporated herein by reference.

Item 4. Security Ownership of Certain Beneficial Owners and Management.

The information required by this item is contained under the section of the information statement entitled “Security Ownership of Certain Beneficial Owners and Management.” That section is incorporated herein by reference.

Item 5. Directors and Executive Officers.

The information required by this item is contained under the section of the information statement entitled “Management.” That section is incorporated herein by reference.

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Item 6. Executive Compensation.

The information required by this item is contained under the sections of the information statement entitled “Compensation Discussion and Analysis,” “Director Compensation,” “Executive Compensation” and “Management—Compensation Committee Interlocks and Insider Participation.” Those sections are incorporated herein by reference.

Item 7. Certain Relationships and Related Transactions, and Director Independence.

The information required by this item is contained under the sections of the information statement entitled “Summary of the Separation and Distribution,” “Risk Factors—Risks Related to the Spin-Off,” “Management” and “Certain Relationships and Related Transactions.” Those sections are incorporated herein by reference.

Item 8. Legal Proceedings.

The information required by this item is contained under the sections of the information statement entitled “Business—Legal Proceedings” and “Notes to Unaudited Pro Forma Condensed Combined Financial Information—Note 14. Legal Proceedings.” Those sections are incorporated herein by reference.

Item 9. Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters.

The information required by this item is contained under the sections of the information statement entitled “The Separation and Distribution,” “Dividend Policy,” “Security Ownership of Certain Beneficial Owners and Management,” and “Description of Capital Stock.” Those sections are incorporated herein by reference.

Item 10. Recent Sales of Unregistered Securities.

The information required by this item is contained under the section of the information statement entitled “Description of Capital Stock—Sale of Unregistered Securities.” That section is incorporated herein by reference.

Item 11. Description of Registrant’s Securities to be Registered.

The information required by this item is contained under the sections of the information statement entitled “Summary of the Separation and Distribution,” “The Separation and Distribution,” “Dividend Policy” and “Description of Capital Stock.” Those sections are incorporated herein by reference.

Item 12. Indemnification of Directors and Officers.

The information required by this item is contained under the section of the information statement entitled “Description of Capital Stock—Limitations on Director and Officer Liability.” That section is incorporated herein by reference.

Item 13. Financial Statements and Supplementary Data.

The information required by this item is contained under the sections of the information statement entitled “Summary of Historical and Unaudited Pro Forma Condensed Combined Financial Data,” “Unaudited Pro Forma Condensed Combined Financial Information,” “Notes to Unaudited Pro Forma Condensed Combined Financial Information” and “Index to Combined Financial Statements” (and the financial statements and related notes referenced therein). Those sections are incorporated herein by reference.

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Item 14. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.

Not applicable.

Item 15. Financial Statements and Exhibits.

(a) Financial Statements

The information required by this item is contained under the sections of the information statement entitled “Summary of Historical and Unaudited Pro Forma Condensed Combined Financial Data,” “Unaudited Pro Forma Condensed Combined Financial Information,” “Notes to Unaudited Pro Forma Condensed Combined Financial Information” and “Index to Combined Financial Statements” (and the financial statements and related notes referenced therein). Those sections are incorporated herein by reference.

(b) Exhibits

See below.

The following documents are filed as exhibits hereto:

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SIGNATURES

Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized.

Date: November 25, 2024

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Exhibit 2.1

FORM OF SEPARATION AND DISTRIBUTION AGREEMENT

by and between

WESTERN DIGITAL CORPORATION

and

SANDISK CORPORATION

dated as of

[●]

TABLE OF CONTENTS

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SEPARATION AND DISTRIBUTION AGREEMENT

THIS SEPARATION AND DISTRIBUTION AGREEMENT (this “Agreement”) is entered into as of [●] by and between Western Digital Corporation, a Delaware corporation (“WDC”), and Sandisk Corporation, a Delaware corporation and wholly owned Subsidiary of WDC (“Spinco”) (each, a “Party” and together, the “Parties”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Section 10.

RECITALS

WHEREAS, WDC, directly and indirectly through its wholly owned Subsidiaries, is engaged in the Flash Business;

WHEREAS, the Board of Directors of WDC (the “WDC Board”) has determined that it is advisable and in the best interests of WDC and WDC’s stockholders to separate the Flash Business from the other businesses of WDC (the “Separation”) and to divest the Flash Business in the manner contemplated by this Agreement and the Ancillary Agreements;

WHEREAS, on the terms and subject to the conditions set forth herein, in order to effect such separation, WDC has undertaken the Internal Restructuring and, in connection therewith, will effect the Spinco Contribution and, in exchange therefor, Spinco shall (i) issue to WDC additional shares of Spinco Common Stock and (ii) pay the Spinco Dividend to WDC;

WHEREAS, following, and as a result of, the Internal Restructuring and the Spinco Contribution, it is intended that Spinco, through its wholly owned subsidiaries, operate and conduct the Flash Business on a standalone basis;

WHEREAS, on the terms and subject to the conditions set forth herein, following the completion of the Internal Restructuring, the Spinco Contribution and the payment of the Spinco Dividend, WDC shall own all of the issued and outstanding shares of Spinco Common Stock and shall effect the distribution of 80.1% of such outstanding shares of Spinco Common Stock to the holders of WDC Common Stock in accordance with Section 3.1 hereof (the “Distribution”);

WHEREAS, following the Distribution, WDC shall retain 19.9% of the outstanding shares of Spinco Common Stock (the “Retained Stock”) and within twelve (12) months following the Distribution Date effect one or more distributions of the Retained Stock (i) to holders of WDC stock as dividends or in exchange for outstanding shares of WDC stock (any such distribution, a “Clean-Up Distribution”) and/or (ii) through one or more transfers of the Retained Stock to certain Persons (the “Debt Exchange Parties”) in exchange for certain debt obligations of WDC (the “Exchange Debt”) held by the Debt Exchange Parties as principals for their own account (any such distribution, a “Debt Exchange” and together with any Clean-Up Distribution, a “Subsequent Distribution”);

WHEREAS, for U.S. federal income Tax purposes, (i) it is intended that the Spinco Contribution, taken together with the Distribution and any Subsequent Distribution, will qualify for non-recognition of gain and loss pursuant to Sections 355, 361 and 368(a)(1)(D) of the Code and (ii) this Agreement constitutes a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulation Section 1.368-2(g); and

WHEREAS, the Parties desire to set forth the principal arrangements among them regarding the foregoing transactions and to make certain covenants and agreements specified herein in connection therewith and to prescribe certain conditions relating thereto.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements contained herein, and intending to be legally bound hereby, the Parties agree as follows:

1.1 Transfer of Assets. Except as provided in Section 1.8(b), at or prior to the Separation Time, WDC shall assign, transfer, convey and deliver (“Convey,” and such a transaction, a “Conveyance”) (and shall cause any applicable Subsidiary to Convey) to Spinco or one or more Spinco Subs in accordance with the Separation Plan attached hereto as Schedule 1.1 (the “Separation Plan”) and the other terms and conditions of this Agreement, and Spinco shall accept from WDC, and shall cause any applicable Spinco Sub to accept, the Flash Assets (as defined below) and all of WDC’s and its applicable Subsidiaries’ respective direct or indirect right, title and interest in, to and under all Flash Assets (other than any Flash Assets that as of the Separation Time are already Assets of Spinco or a Spinco Sub, which Flash Assets shall continue to be Assets of Spinco or such Spinco Sub after the Separation Time and shall, at the Separation Time, be free and clear of all Liens (other than Permitted Liens)).

1.2 Assumption of Liabilities. At or prior to the Separation Time, (1) WDC shall Convey (or shall cause any applicable Subsidiary to Convey) to Spinco or one or more Spinco Subs, in accordance with the Separation Plan and the other terms and conditions of this Agreement, all of the Flash Liabilities (other than those Flash Liabilities that as of the Separation Time are already Liabilities of Spinco or a Spinco Sub, all of which, for purpose of clarity, shall continue to be Liabilities of Spinco or such Spinco Sub after the Separation Time), and (2) Spinco shall, or shall cause any applicable Spinco Sub(s), to assume, perform, satisfy, discharge and fulfill when due and, to the extent applicable, comply with on a timely basis, all Flash Liabilities, in accordance with their respective terms. As between members of the WDC Group, on the one hand, and members of the Spinco Group, on the other hand, following the Separation Time, the members of the Spinco Group, on a joint and several basis, will be solely responsible for all Flash Liabilities in accordance with their terms (without regard to any such terms that make or would make any member of the WDC Group in any manner liable therefor).

1.3 Transfer of Excluded Assets; Excluded Liabilities. Subject to Section 1.8(b), at or prior to the Separation Time: (i) WDC shall cause Spinco and any applicable Spinco Sub to Convey to WDC or an appropriately capitalized Subsidiary of WDC (as WDC may designate), in accordance with the Separation Plan and the other terms and conditions of this Agreement, any Excluded Assets that it owns, leases or has any right to use, and WDC shall accept from Spinco or such Spinco Sub, or shall cause any designated Subsidiary of WDC to accept, the Excluded Assets and all such respective right, title and interest in and to any and all of such Excluded Assets and (ii) WDC shall cause Spinco and any applicable Spinco Sub to Convey to WDC or an appropriately capitalized Subsidiary of WDC (as WDC may designate), in accordance with the Separation Plan and the other terms and conditions of this Agreement, any Excluded Liability for which Spinco or Spinco Sub is otherwise responsible, and WDC shall assume, perform, satisfy, discharge and fulfill when due, and to the extent applicable, comply with on a timely basis, or shall cause the designated Subsidiary of WDC to assume, perform, satisfy, discharge and fulfill when due, and to the extent applicable, comply with on a timely basis, any and all of such Excluded Liabilities in accordance with their respective terms. As between members of the WDC Group, on the one hand, and members of the Spinco Group, on the other hand, following the Separation Time, the members of the WDC Group, on a joint and several basis, will be solely responsible for all Excluded Liabilities in accordance with their terms (without regard to any such terms that make or would make any member of the Spinco Group in any manner liable therefor).

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1.4 Misallocated Transfers. In the event that, at any time from and after the Separation Time, WDC or Spinco (or any member of the WDC Group or the Spinco Group, as applicable) discovers or is notified that it or one of its controlled Affiliates is the owner of, receives or otherwise comes to possess or benefit from any Asset (including the receipt of payments made pursuant to Contracts and proceeds from accounts receivable with respect to such Asset) or is liable for any Liability that is otherwise allocated to any Person that is a member of the other Group, as the case may be, pursuant to this Agreement or any Ancillary Agreement (except in the case of any deliberate acquisition of Assets or assumption of Liabilities from the other Party for value subsequent to the Separation Time), such Asset or Liability shall be deemed a Flash Asset, Excluded Asset, Flash Liability or Excluded Liability, as applicable, for all purposes hereunder, and such Party shall use commercially reasonable efforts to promptly Convey, or cause to be Conveyed, such Asset or Liability to the Person so entitled thereto (and the relevant Party shall cause such entitled Person to accept such Asset or assume, perform, satisfy, discharge and fulfill when due such Liability) for no further consideration other than set forth in this Agreement or such Ancillary Agreement. Prior to any such transfer, such Asset shall constitute a Deferred Asset and be held in accordance with Section 1.8(b).

1.5 Flash Assets; Excluded Assets.

(a) For purposes of this Agreement, “Flash Assets” shall mean all of WDC’s and its Subsidiaries’ respective right, title and interest in, to and under the following Assets existing as of immediately prior to the Separation Time:

(i) (A) Spinco Owned Real Property, as set forth on Schedule 1.5(a)(i)(A), and all rights and interests of WDC or its Subsidiaries with respect thereto; (B) the Spinco Leases, as set forth on Schedule 1.5(a)(i)(B), and all rights and interests of WDC or its Subsidiaries thereunder; and (C) any other owned or leased real property used or held for use primarily in the operation of the Flash Business (collectively, “Spinco Real Property”);

(ii) all issued and outstanding capital stock of, or other equity or ownership interests in, the Subsidiaries of WDC contemplated to be owned (directly or indirectly) by Spinco immediately prior to the Separation Time pursuant to the Separation Plan and the Internal Restructuring (such Subsidiaries, the “Spinco Subs”);

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(iii) excluding Personnel IT Assets and Non-Personnel IT Assets, (A) all of the office equipment, furnishings, fixtures and other tangible assets and (B) all of the Tools, in each case, either (x) physically located in Spinco Real Property (other than any such assets that are exclusively related to, or exclusively used or held for use in, the non-Flash Business) or primarily related to, or primarily used or held for use in, the Flash Business, or (y) otherwise used, or held for use, primarily in the operation of the Flash Business and, in each case, including any leases primarily related thereto;

(iv) subject to Section 1.8, Permits granted to WDC or any of its Subsidiaries that are used, or held for use, primarily in the Flash Business (including any pending applications for such Permits) (the “Flash Permits” and to the extent such Flash Permits may be assigned, the “Transferable Permits”);

(v) all rights to causes of action, lawsuits, judgments, claims (including, subject to Sections 6.4 and 6.5, third-party insurance claims under policies that are an Excluded Asset pursuant to Section 1.5(b)(vi)), counterclaims, demands or enforcement rights of any kind of WDC, its Affiliates, or any member of the Spinco Group or against a Person to the extent such causes of action, lawsuits, judgments, claims, counterclaims, demands or enforcement rights relate to the Flash Business, a Flash Asset or a Flash Liability, including all claims made as of the Separation Date;

(vi) all inventories of materials, parts, raw materials, packaging materials, supplies, work-in-process, goods in transit and finished goods and products that are used, or held for use, primarily in the Flash Business;

(vii) all Spinco IP and all right, title and interest therein, including all Ancillary IP Rights therein;

(viii) all Non-Personnel IT Assets set forth on Schedule 1.5(a)(viii) (the “Spinco Non-Personnel IT”);

(ix) all Personnel IT Assets that are primarily used by any directors, officers, partners, managers, employees or agents of any member of the Spinco Group;

(x) excluding Personnel IT Assets, Non-Personnel IT Assets and Tools, all Technology (including Software and Source Code in Software) owned by or licensed to WDC or any of its Affiliates (including Spinco and the Spinco Subs) that is primarily used, or primarily held for use, for the research, development, design or manufacture of Flash Business Products;

(xi) all rights with respect to third-party warranties to the extent related to the Flash Assets;

(xii) (A) all Contracts (excluding Spinco Leases and IP Contracts) that are exclusively related to the Flash Business, (B) all IP Contracts (excluding Excluded IP Contracts) that are primarily used or held for use in the Flash Business, (C) all Contracts (or portion of a contract allocated to Spinco) resulting from a Shared Contract Transfer that is related to the Flash Business and (D) the rights, claims, benefits, and interests (whether presently known or unknown, contingent or otherwise) under any Contract included in sub-clause (A), (B) or (C) ((A), (B), (C) and (D), collectively, the “Spinco Contracts”);

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(xiii) subject to Section 5.3, (A) all business records primarily related to the Flash Assets or Flash Liabilities, including the corporate or limited liability company minute books and related stock records of the members of the Spinco Group, information and records used to demonstrate compliance with applicable Law and any other compliance records related to the Flash Business; (B) all of the separate financial records of the members of the Spinco Group or relating to the Flash Business (including any function shared with the non-Flash Business to the extent any of its revenue or costs are allocated to the Flash Business) that are not Tax Records and do not form part of the general ledger of WDC or any of its Affiliates (other than the members of the Spinco Group); provided, however, that for matters pertaining to the provision of Tax Records, the Tax Matters Agreement shall govern; (C) all other books, records, invoices, ledgers, files, documents, correspondence, lists, plats, drawings, photographs, product literature, equipment test records, advertising and promotional materials, distribution lists, customer lists, supplier lists, studies, reports, operating, production and other manuals, manufacturing and quality control records and procedures, research and development files, accounting and business books, records, files, documentation and materials, in all cases whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form, to the extent primarily related to the Flash Business; and (D) prosecution records, including any correspondence with any applicable Governmental Authority, relating to, and any other records, documents or materials that are material to the prosecution or maintenance of, any Spinco IP, in each case, excluding any Intellectual Property Rights other than Spinco IP embodied therein (collectively, (A) through (D), excluding any Excluded Assets, the “Spinco Books and Records”); provided, however, that: (x) WDC shall be entitled to retain a copy of any and all Spinco Books and Records, which shall be subject to the provisions of Section 2 and deemed the Confidential Information of Spinco and subject to the provisions of Section 6.6; (y) WDC may retain any materials in clauses (A) and (C) that are not reasonably practicable to identify and extract subject to the right of access pursuant to Section 5.1 which shall be deemed the Confidential Information of Spinco and subject to the provisions of Section 6.6; and (z) WDC shall be entitled to redact any portion of the Spinco Books and Records to the extent such portion is unrelated to the Flash Business;

(xiv) the right to enforce the confidentiality, non-compete, non-solicit, or assignment provisions of any Shared Contracts (other than Spinco Contracts, which are covered by Section 1.5(a)(xii)) to the extent related to the Flash Business;

(xv) all accounts receivable or unbilled receivables of the Flash Business, including all accounts receivable and unbilled receivables of Spinco and the Spinco Subs;

(xvi) without duplication, any and all Assets reflected as an “asset” on the Flash Business Audited Financial Statements and any such Assets acquired by or for Spinco or any member of the Spinco Group subsequent to the date of such balance sheets which, had they been so acquired on or before such date and owned as of the applicable balance sheet date, would have been reflected on such balance sheet if prepared on a consistent basis, subject to any dispositions of any of such Assets subsequent to the date of such balance sheet made in the ordinary course of business, in all cases other than any such Assets under the line-item titled “Goodwill”;

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(xvii) the benefits of all prepaid expenses, including prepaid fees, prepaid leases and prepaid rentals, trade accounts and other accounts and notes receivable to the extent related to or held for use in the operation of the Flash Business and all customer deposits related to the provision of service by the Flash Business;

(xviii) all rights of the Spinco Group under this Agreement or any Ancillary Agreement and the certificates, instruments and Transfer Documents delivered in connection therewith;

(xix) all cash and cash equivalents in bank or other deposit accounts of Spinco or any member of the Spinco Group subject to Section 1.10 and Section 3.3(b);

(xx) all rights to insurance policies in the name of or otherwise held by any member of the Spinco Group;

(xxi) the Spinco Pre-Separation Privileged Materials and the rights in Shared Pre-Separation Privileged Materials as set forth in Section 5.3;

(xxii) all Assets allocated to any member of the Spinco Group under the Employee Matters Agreement; and

(xxiii) all other Assets owned or held by WDC or any of its Subsidiaries that are not of a type covered by the preceding clauses (i)-(xxii) above and that are primarily used or held for use in the Flash Business and are not Intellectual Property Rights or Excluded Assets.

(b) The Flash Assets shall not, in any event, include any of the following Assets (the “Excluded Assets”):

(i) all cash and cash equivalents, and bank or other deposit accounts, of WDC and its Affiliates (A) other than Spinco or any member of the Spinco Group subject to Section 1.10 and Section 3.3(b) and (B) excluding the Spinco Cash (taking into account the settlement of intercompany accounts in accordance with Section 1.7 and the cash reduction in accordance with Section 3.3(b));

(ii) all right, title or interest in, to or under (x) any Intellectual Property Rights included in the Excluded IP and (y) except the Spinco IP, any other Intellectual Property Rights owned by any member of the WDC Group, including, in each case, all Ancillary IP Rights therein;

(iii) all Non-Personnel IT Assets other than the Spinco Non-Personnel IT;

(iv) all Personnel IT Assets that are primarily used by any directors, officers, partners, managers, employees or agents of any member of the WDC Group;

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(v) except for the Flash Assets identified in Section 1.5(a)(v), all rights to insurance policies or practices of WDC and its Affiliates (other than of Spinco and any member of the Spinco Group) (including any captive insurance policies, fronted insurance policies, surety bonds or corporate insurance policies or practices, or any form of self-insurance whatsoever), any refunds paid or payable in connection with the cancellation or discontinuance of any such policies or practices, and any claims made under such policies (subject to the provisions of Sections 6.4 and 6.5);

(vi) other than with respect to any insurance policies referred to in Section 1.5(a)(xx), all rights to causes of action, lawsuits, judgments, claims, counterclaims or demands of WDC, its Affiliates, or any member of the Spinco Group against a party to the extent that they do not relate to the Flash Assets, the Flash Business or the Flash Liabilities;

(vii) (A) all financial records that are not Tax Records and that form part of the general ledger of WDC or any of its Affiliates (other than the members of the Spinco Group), (B) any working papers of WDC’s auditors, provided, however, that WDC shall provide the Spinco Group with access to such working papers in accordance with Section 5.1 and (C) subject to Section 5.3, the WDC Pre-Separation Privileged Materials and the Shared Pre-Separation Privileged Materials; provided, however, in each case, that Spinco and its Representatives shall in all events be entitled to copies of, and shall be entitled to use, any such books and records to the extent related to the Flash Business or the Flash Assets (including any books and records relied on by WDC to prepare the Registration Statement), in each case, to the extent such books and records are in WDC’s possession (subject to Section 5.3). For matters pertaining to the retention or provision of Tax Records, the Tax Matters Agreement shall govern;

(viii) subject to Section 1.5(a)(xiii), all records relating to the negotiation and consummation of the Transactions and all records prepared in connection with the potential divestiture of all or a part of the Flash Business, including confidential communications with legal counsel representing WDC or its Affiliates and the right to assert any Privileges comprising WDC Pre-Separation Privileged Materials in accordance with Section 5.3;

(ix) subject to Section 1.8(c) with respect to any Shared Contract, any Contract other than the Spinco Contracts and the rights, claims, benefits and interests (whether presently known or unknown, contingent or otherwise) under any Contract other than the Spinco Contracts;

(x) all Permits of WDC or its Affiliates other than Flash Permits, subject to the rights of Spinco and obligations of the Parties set forth in Section 1.8;

(xi) all of the issued and outstanding capital stock of, or other equity interests in, the Subsidiaries of WDC other than Spinco and the Spinco Subs;

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(xii) any and all Assets that are expressly contemplated by any Ancillary Agreement as Assets to be retained by or Conveyed to WDC or any other member of the WDC Group;

(xiii) any Assets allocated to any member of the WDC Group under the Employee Matters Agreement;

(xiv) any of the Assets listed on Schedule 1.5(b)(xiv);

(xv) excluding Personnel IT Assets and Non-Personnel IT Assets, (A) all of the office equipment, furnishings, fixtures and other tangible assets and (B) all of the Tools, in each case, that is both (x) not used, or that is not held for use, primarily in the operation of the Flash Business and (y) not physically located at the Spinco Real Property (or any such assets that are exclusively related to, or exclusively used or held for use in, the non-Flash Business) and, in each case, including any leases primarily related thereto;

(xvi) the IP Contracts listed on Schedule 1.5(b)(xvi) (the “Excluded IP Contracts”);

(xvii) the right to enforce the confidentiality, non-compete, non-solicit, or assignment provisions of any Contract (other than any Spinco Contracts), to the extent not related to the Flash Business (it being understood that the Contracts containing such rights shall be allocated in accordance with Section 1.5(a)(xii) and Section 1.5(b)(ix) and to the extent such Contract is a Shared Contract); and

(xviii) other than any Flash Assets or any Asset specifically listed or described in Section 1.5(a) or the Schedules thereto, any and all Assets of WDC or its Subsidiaries that are used, or held for use, in the businesses of WDC.

(c) In the event of any inconsistency or conflict that may arise in the application or interpretation of the definitions of “Flash Assets” and “Excluded Assets,” the explicit inclusion of an item on any Schedule referred to in either definition shall take priority over any textual provision of either definition that would otherwise operate to include or exclude such Asset from the applicable definition.

(d) Neither “Flash Assets” nor “Excluded Assets,” shall include any Tax Attributes, Tax Records or any other Tax Assets, which shall be governed by the Tax Matters Agreement.

(e) The Parties acknowledge and agree that, except for such rights as are otherwise expressly provided in this Agreement or any Ancillary Agreements, none of Spinco or any of the Spinco Subs shall acquire or be permitted to retain any direct or indirect right, title or interest in any Excluded Assets through the Conveyance of all of the authorized and outstanding equity interests in the Spinco Subs and that if any of the Spinco Subs owns, leases or has the right to use any such Excluded Assets, such Excluded Assets shall be Conveyed to WDC as contemplated by Section 1.3.

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1.6 Flash Liabilities; Excluded Liabilities.

(a) For the purposes of this Agreement, “Flash Liabilities” shall mean each of the following Liabilities, regardless of when and where such Liabilities arose or where, or against whom, such Liabilities are asserted or determined:

(i) all Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or any schedules hereto or thereto) as Liabilities to be retained, assumed or retired by Spinco or any other member of the Spinco Group under this Agreement or any of the Ancillary Agreements;

(ii) all Liabilities to the extent relating to:

(1) the conduct and operation of the Flash Business (other than any Disposed Flash Business), whether prior to, at or after the Separation Time (including any such Liability relating to, arising out of or resulting from any act or failure to act by any directors, officers, partners, managers, employees or agents of any member of the Spinco Group (whether or not such act or failure to act is or was within such Person’s authority));

(2) the ownership, operation or use of any Flash Asset, whether prior to, at or after the Separation Time, but excluding any such Liabilities with respect to any business or entity owned or operated by the Flash Business or any member of the Spinco Group that has been divested or discontinued prior to the Separation Time (a “Disposed Flash Business”) (including any real property owned or operated by such a Disposed Flash Business), notwithstanding that such Asset would have constituted a Flash Asset prior to such divestiture or discontinuance; or

(3) any warranty, product liability obligation or claim or similar obligation entered into, created or incurred in the course of business of the Flash Business (other than any Disposed Flash Business) with respect to its products or services, whether prior to, at or after the Separation Time;

(iii) all Liabilities (including for the avoidance of doubt all Liabilities under or related to any Environmental Laws, including for fines and penalties associated with violations of any Environmental Laws, and for the costs associated with any damage to or restoration of natural resources or any investigation and remediation of environmental media impacted by Hazardous Materials) directly relating to: (A)(1) the investigation or remediation of any Release of Hazardous Materials at, on, under or from any Spinco Real Property (excluding the Milpitas Sites), whether such Release occurred prior to, at or after the Separation Time, and claims for response costs, damages or restoration costs related to same; (2) any violation or alleged violation of Environmental Laws, whether prior to, at or after the Separation Time; (3) any loss of life or injury to Persons due to exposure to asbestos or other Hazardous Materials prior to, at or after the Separation Time; or (4) the off-site disposal, storage, transport, discharge or Release of Hazardous Materials prior to, at or after the Separation Time, in each of cases (A)(1), (A)(2), (A)(3) and (A)(4) to the extent relating to, arising out of, resulting from or otherwise in respect of the conduct or operation of the Flash Business or the ownership, operation or use of the Flash Assets (and, in each such case, for the avoidance of doubt, excluding to the extent relating to any Disposed Flash Business or any other Excluded Liabilities); or (B) the investigation or remediation of any Release of Hazardous Materials at, on, under or from the Milpitas Sites, and claims for response costs, damages or restoration costs related to same, with respect to the portion of any Releases occurring after September 5, 2023, to the extent relating to, arising out of, resulting from or otherwise are in respect of the conduct or operation of the Flash Business on after the effective date of said lease or tenancy;

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(iv) all Liabilities relating to (A) the Spinco Contracts, (B) the portion of any Shared Contract allocated to a member of the Spinco Group (including without limitation whether replicated, fully assigned or partially assigned), or (C) any other Contract (i) that is or has been assigned to a member of the Spinco Group or (ii) the extent to which a member of the Spinco Group is or becomes a party thereto;

(v) subject to Section 1.8, all Liabilities to the extent relating to leases for the Flash Assets;

(vi) all customer deposits of the Flash Business, including all customer deposits of Spinco and the Spinco Subs;

(vii) accounts payable of the Flash Business, including all accounts payable of Spinco and the Spinco Subs;

(viii) all Liabilities allocated to any member of the Spinco Group under the Employee Matters Agreement;

(ix) all Liabilities allocated to Spinco under the Tax Matters Agreement;

(x)  all Liabilities for (A) Indebtedness solely between or among members of the Spinco Group; (B) subject to Section 3.4, the capital leases and operating leases set forth on Schedule 1.6(a)(x) (collectively, the “Transferred Leases”); and (C) subject to Section 3.4, the Spinco Debt; and

(xi) fifty percent (50%) of the Shared Liabilities.

(b) The Flash Liabilities shall not, in any event, include any of the following Liabilities of WDC or its Subsidiaries (the “Excluded Liabilities”):

(i) without limitation of Section 1.6(b)(vii), all Liabilities (including for the avoidance of doubt all Liabilities under or related to any Environmental Laws, including for fines and penalties associated with violations of any Environmental Laws, and for the costs associated with any damage to or restoration of natural resources or any investigation and remediation of environmental media impacted by Hazardous Materials) directly relating to: (A)(1) the investigation or remediation of any Release of Hazardous Materials at, on, under or from any Spinco Real Property (excluding the Milpitas Sites), whether such Release occurred prior to, at or after the Separation Time, and claims for response costs, damages or restoration costs related to same; (2) any violation or alleged violation of Environmental Laws, whether prior to, at or after the Separation Time; (3) any loss of life or injury to Persons due to exposure to asbestos or other Hazardous Materials, whether prior to, at or after the Separation Time; or (4) the off-site disposal, storage, transport, discharge or Release of Hazardous Materials, whether prior to, at or after the Separation Time, in each of cases (A)(1), (A)(2), (A)(3) and (A)(4) to the extent relating to, arising out of, resulting from or otherwise in respect of: (w) the conduct or operation of the non-Flash Business; (x) the ownership, operation or use of the Excluded Assets; (y) any business, operations or activities of a member of the WDC Group (or any legal predecessor thereto or any current or former Affiliate thereof) not related to the Flash Business; or (z) any business or entity that is a Disposed Flash Business (including any real property owned or operated by such a Disposed Flash Business); (B) the investigation or remediation of any Release of Hazardous Materials at, on, under or from the Milpitas Sites, and claims for response costs, damages or restoration costs (1) related to Releases by any member of the WDC Group occurring prior to September 5, 2023 and (2) related to the portion of any Releases occurring on or after September 5, 2023, provided, in the case of clause (B)(2), to the extent said Releases relate to, arise out of, result from or otherwise are in respect of the conduct or operation of any member of the WDC Group not related to the Flash Business at the Milpitas Sites after September 5, 2023; or (C) the Real Property Transfer Obligations, for which WDC is responsible pursuant to Section 6.8;

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(ii) Liabilities for Indebtedness of WDC or its Subsidiaries (other than (A) Indebtedness solely between or among members of the Spinco Group; (B) subject to Section 3.4, the Transferred Leases; and (C) subject to Section 3.4, the Spinco Debt);

(iii) costs or expenses (including any legal, investment banking or other advisory costs or expenses) incurred by or on behalf of any member of the Spinco Group or the WDC Group at or prior to the Distribution Date in connection with the Transactions;

(iv) all Liabilities allocated to any member of the WDC Group under the Employee Matters Agreement;

(v) all Liabilities allocated to WDC under the Tax Matters Agreement;

(vi) all agreements, obligations and Liabilities that are expressly contemplated by this Agreement or any Ancillary Agreement (or any schedules hereto or thereto) as Liabilities to be retained, assumed or retired by WDC or any other member of the WDC Group, including the costs, expenses and Liabilities referred to in Section 3.2(f);

(vii) all Liabilities to the extent relating to:

(1) the conduct and operation of any business (other than the Flash Business, but, for the avoidance of doubt, including any Disposed Flash Business) of the WDC Group, whether prior to, at or after the Separation Time (including any such Liability relating to, arising out of or resulting from any act or failure to act by any directors, officers, partners, managers, employees or agents of any member of the WDC Group (whether or not such act or failure to act is or was within such Person’s authority));

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(2) the ownership, operation or use of any Assets of the WDC Group (other than the Flash Assets) or any Excluded Asset, whether prior to, at or after the Separation Time;

(3) the ownership or operation of any Disposed Flash Business (including any real property owned or operated by such a Disposed Flash Business), notwithstanding that such Asset would have constituted a Flash Asset prior to such divestiture or discontinuance and any obligations under the definitive agreement(s) providing for the divestiture of any Disposed Flash Business; and

(4) any warranty, product liability obligation or claim or similar obligation entered into, created or incurred in the course of business of the WDC Group (other than the Flash Business) with respect to its products or services, whether prior to, at or after the Separation Time;

(viii) all Liabilities to the extent relating to the portion of any Shared Contract allocated to a member of the WDC Group or any other Contract (including without limitation whether replicated, fully assigned or partially assigned) that is assigned to a member of the WDC Group;

(ix) all customer deposits not related to the Flash Business, including all customer deposits of any member of the WDC Group;

(x) accounts payable not related to the Flash Business, including all accounts payable of any member of the WDC Group;

(xi) any of the Liabilities listed on Schedule 1.6(b)(xi); and

(xii) fifty percent (50%) of the Shared Liabilities.

(c) In the event of any inconsistency or conflict that may arise in the application or interpretation of the definitions of “Flash Liabilities” and “Excluded Liabilities,” the explicit inclusion of an item on any Schedule referred to in either definition shall take priority over any textual provision of either definition that would otherwise operate to include or exclude such Liability from the applicable definition.

(d) The Parties acknowledge and agree that none of Spinco or any other member of the Spinco Group shall be required to assume or retain any Excluded Liabilities as a result of the Internal Restructuring, and that if any of the Spinco Subs is liable for any Excluded Liabilities, such Excluded Liabilities shall be assumed by WDC as contemplated by Section 1.3. Any Liability of any member of the WDC Group not included in any of the clauses of Section 1.6(a) shall be an Excluded Liability.

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1.7 Termination of Related Party Agreements; Settlement of Intercompany Accounts.

(a) Except as set forth in Section 1.8(c), Spinco, on behalf of itself and each other member of the Spinco Group, on the one hand, and WDC, on behalf of itself and each other member of the WDC Group, on the other hand, hereby terminate any and all Contracts, whether or not in writing (it being understood that any guaranteed obligations shall be subject to Section 6.3), entered as of prior to the Separation Time between or among Spinco or any member of the Spinco Group, on the one hand, and WDC or any member of the WDC Group, on the other hand (the “Related Party Agreements”), effective as of the Separation Time. No such Contract (including any provision thereof which purports to survive termination) shall be of any further force or effect at or after the Separation Time and all parties shall be released from all Liabilities thereunder other than the Liability to settle any Intercompany Account as provided in Section 1.7(c). From and after the Separation Time, no member of either Group shall have any rights or obligations under any Related Party Agreements, except as specifically provided in: (i) Section 1.7(b) or elsewhere in this Agreement; or (ii) the Ancillary Agreements. Each Party shall, at the reasonable request of the other Party, take, or cause to be taken, such other actions as may be necessary to effect the foregoing.

(b) The provisions of Section 1.7(a) shall not apply to any of the following Contracts (or to any of the provisions thereof):

(i) this Agreement and the Ancillary Agreements (and each other Contract expressly contemplated by this Agreement or any Ancillary Agreement to be entered into or continued by any of the Parties or any of the members of their respective Groups);

(ii) any Contracts to which any Person, other than the Parties and their respective Affiliates, is a party;

(iii) any Contracts between: (A) a Subsidiary of WDC that is in the business of selling or buying products or services to or from third parties and (B) a member of the Spinco Group, and which Contract is related primarily to the provision of such products or services and was or is entered into in the ordinary course of business and on arm’s-length terms;

(iv) any other Contracts that this Agreement or any Ancillary Agreement expressly contemplates shall survive the Distribution Date;

(v) any confidentiality or non-disclosure agreements among any members of either Group; and

(vi) any Contracts set forth on Schedule 1.7(b)(vi) (collectively, the “Excluded Related Party Agreements”). Notwithstanding anything to the contrary in this Agreement, each Excluded Related Party Agreement shall be governed exclusively by the terms set forth therein and shall not be subject to the terms of this Agreement unless and only to the extent that such Excluded Related Party Agreement expressly states otherwise.

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(c) Each Intercompany Account outstanding immediately prior to the Separation will be satisfied and/or settled in full in cash (in each case with no further liability or obligation on Spinco or any member of the Spinco Group) by the relevant members of the WDC Group and the Spinco Group no later than the Distribution Date and prior to the Distribution, in each case in the manner determined by WDC (and any payments in settlement of such Intercompany Accounts shall be taken into account in determining the amount of the Spinco Cash).

1.8 Delayed Transfers.

(a) Obtaining Consents. The Parties shall cooperate with each other and use their respective commercially reasonable efforts to obtain: (i) the transfer, assignment or reissuance to Spinco or a member of the Spinco Group of all Transferable Permits; (ii) the issuance to Spinco or a member of the Spinco Group of any other Permits of WDC or its Affiliates that are necessary for the ownership or operation of the Flash Business or the Flash Assets that do not constitute Transferable Permits (“Non-Transferable Permits”); and (iii) all Consents and Governmental Approvals of all other Persons to the extent necessary to consummate the Internal Restructuring as required by the terms of any Law, license, permit, concession or Contract to which WDC or any of its Subsidiaries is currently a party or by which any of them is bound, subject to the limitations set forth in this Section 1.8; provided, however, that with respect to Shared Contracts, Section 1.8(c) shall control; and provided, further, that if any member of the Spinco Group or any member of the WDC Group is required to make any payments, incur any Liability or offer or grant any accommodation (financial or otherwise, that is not provided for in the underlying Contract) to any third party in connection with any of the actions in clauses (i) through (iii) above, then (A) WDC shall be required to pay any such costs and expenses incurred by either Party on or prior to the Distribution and (B) following the Distribution, each Party shall bear its own such costs and expenses. Other than as provided in the immediately preceding sentence, each of the Parties agrees that it shall not commit, and shall cause its Subsidiaries not to commit, to any third party on behalf of Spinco, WDC or any member of the Spinco Group or WDC Group to make any payments, incur any Liability or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any third party to obtain any such Consents that would be a Liability of Spinco, WDC or any member of the Spinco Group or WDC Group after the Separation Time, without the prior express written consent of WDC or Spinco, as applicable. The obligations set forth in this Section 1.8(a) shall terminate upon the twelve (12) month anniversary of the Separation Time or, if the term of a Contract, Permit, Asset or Liability has Expired before the twelve (12) month anniversary of the Separation Time, the obligations set forth in this Section 1.8(a) relating to such Contract, Permit, Asset or Liability shall terminate upon such earlier Expiration.

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(b) Transfer in Violation of Laws or Requiring Consent or Governmental Approval. If and to the extent that the Conveyance to any member of the Spinco Group of any Flash Assets or to any member of the WDC Group of any Excluded Assets would be a violation of applicable Laws or require any Consent or Governmental Approval in connection with the Internal Restructuring (including the transfer, assignment or reissuance of any Transferable Permit or the issuance or reissuance of any Non-Transferable Permit) that has not been obtained at the Separation Time or require that notice be provided to any Person, then, notwithstanding any other provision hereof, the Conveyance to the Spinco Group of such Flash Assets or to the WDC Group of such Excluded Assets (any such Asset, a “Deferred Asset”) shall automatically be deferred and no Conveyance shall occur until all legal impediments are removed, such Consents or Governmental Approvals have been obtained or such notice requirement(s) have been satisfied; provided that the Parties shall (i) use their respective commercially reasonable efforts to promptly remove such legal impediments and obtain such Consents and Governmental Approvals, and (ii) promptly satisfy such notice requirement(s). If the Conveyance of a Deferred Asset would not violate applicable Laws or require any Consent or Governmental Approval immediately following the Distribution, such Conveyance shall be effective immediately following the Distribution, subject to the satisfaction of any applicable notice requirement(s). Notwithstanding the foregoing, any such Deferred Asset shall still be considered a Flash Asset or Excluded Asset, as applicable, and the Person retaining such Asset shall thereafter hold such Asset in trust for the benefit of the Person entitled thereto (in a manner consistent with the obligations set forth in this Section 1.8(b)) until the earlier of the consummation of the Conveyance thereof or the termination of the obligations of the Person retaining such Asset under this Section 1.8(b). To the extent that any Deferred Asset cannot be Conveyed without the Consent or Governmental Approval of any Person which Consent or Governmental Approval has not been obtained prior to the Separation Time despite the Parties’ commercially reasonable efforts and compliance with the other provisions hereof, and without limiting the obligation of WDC to obtain consents as provided in this Section 1.8(b), this Agreement will not constitute an agreement to Convey such Deferred Asset if an attempted Conveyance would constitute a breach thereof or violate any Law. The Parties shall use their commercially reasonable efforts to develop and implement mutually acceptable alternative arrangements to place the Person entitled to receive such Deferred Asset in the same position from and after the Separation Time as if such Deferred Asset had been Conveyed as contemplated hereby and so that all the benefits and burdens relating to such Deferred Asset, including possession, use, risk of loss, potential for gain, any Tax Liabilities in respect thereof and dominion, ability to enforce the rights under or with respect to, control and command over such Deferred Asset, inure from and after the Separation Time; provided, however, that with respect to Shared Contracts, Section 1.8(c) shall control. Such alternative arrangements may include, among others, the entry into reseller agreements with respect to government Contracts, or the entry into subcontracting, sublicensing, subleasing or other similar agreements. Under any such alternative arrangements, the Party retaining the Deferred Asset will (i) treat such Deferred Asset in the ordinary course of business consistent with past practice, (ii) hold itself out to third parties as agent or nominee on behalf of the other Party and (iii) agree to enforce (at the other Party’s cost and at its reasonable request) any and all claims, rights and benefits of such Person against any third parties arising from such Deferred Asset. If and when the legal or contractual impediments the presence of which caused the deferral of transfer of any Deferred Asset pursuant to this Section 1.8(b) are removed or any Consents and/or Governmental Approvals the absence of which caused the deferral of transfer of any Deferred Asset pursuant to this Section 1.8(b) are obtained, the transfer of the applicable Deferred Asset shall be effected in accordance with the terms of this Agreement and/or such applicable Ancillary Agreement. WDC shall be required to pay any costs and expenses incurred by either Party on or prior to the Distribution in connection with this Section 1.8(b). From and after the Distribution, each Party shall bear its own costs and expenses incurred in connection with this Section 1.8(b). The obligations set forth in this Section 1.8(b) relating to any Deferred Asset shall terminate upon the twelve (12) month anniversary of the Separation Time or, if the term of such Deferred Asset has Expired before the twelve (12) month anniversary of the Separation Time, upon such earlier Expiration.

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(c) Shared Contracts.

(i) With respect to each Shared Contract, the Parties shall, and shall, as applicable, cause the other members of the Spinco Group or the WDC Group to, use commercially reasonable efforts to take one of the following actions, at the election of the WDC Group: (A) replicate the Shared Contract such that there will be two Contracts: (1) a Contract between the counterparty and the applicable member of the Spinco Group with respect to the Flash Business and (2) a Contract between the counterparty and the applicable member of the WDC Group with respect to the non-Flash Business; or (B) partially assign the rights and delegate the duties relating to the (x) Flash Business functions with respect to such Shared Contract to Spinco (or the applicable member of the Spinco Group) or (y) non-Flash Business functions with respect to such Shared Contract to WDC (or the applicable member of the WDC Group), in each case of clauses (A) and (B), so that the Spinco Group will be entitled to the same or reasonably similar rights and interests of, and will be subject to the same or reasonably similar Liabilities under, such Shared Contract to the extent related to the Flash Business, and the WDC Group will be entitled to the same or reasonably similar rights and interests of, and will be subject to the same or reasonably similar Liabilities under, such Shared Contract to the extent not related to the Flash Business (each, a “Shared Contract Transfer”). In furtherance of the foregoing, the Parties shall, and shall, as applicable, cause the other members of the Spinco Group or the WDC Group to, use commercially reasonable efforts to take such other actions as are reasonably necessary to consummate each Shared Contract Transfer, including to the extent required by the applicable Shared Contract, sending notices to and/or using commercially reasonable efforts to obtain Consents from the counterparty(ies) to such Shared Contract; provided, however, that, notwithstanding the foregoing, if such Shared Contract Transfer is not permitted by the terms of the applicable Shared Contract, or if a necessary Consent is not received from the applicable counterparty(ies) despite the Parties’ commercially reasonable efforts, or if such Shared Contract Transfer would impair the benefit the WDC Group or the Spinco Group, as applicable, is able to derive from the applicable portion of such Shared Contract, then WDC and Spinco shall, and shall, as applicable, cause the other members of the WDC Group or the Spinco Group to, use commercially reasonable efforts to (x) provide for an alternative arrangement so that the applicable member of the WDC Group or the Spinco Group, as applicable, will have the same or reasonably similar benefits and burdens of such Shared Contract from and after the Separation Time as though such Shared Contract Transfer had occurred and (y) enter into separate Contracts pursuant to which the applicable members of the WDC Group and the Spinco Group procure such rights and obligations as are necessary such that WDC and Spinco no longer need to avail themselves of the alternative arrangements provided pursuant to clause (x) above. For the avoidance of doubt, neither a Party nor any of its respective Affiliates shall be required to commence any Action with any third party to fulfill its obligations under this Section 1.8(c). Spinco and WDC shall reasonably cooperate in connection with this Section 1.8(c)(i). Upon a Shared Contract Transfer, the resulting Contract that is related to the Flash Business will be a Spinco Contract, and the resulting Contract that is not related to the Flash Business will be an Excluded Asset. All obligations set forth in this Section 1.8(c)(i) shall terminate upon the twelve (12) month anniversary of the Separation Time or, if the term of such Shared Contract has Expired before the twelve (12) month anniversary of the Separation Time, upon such earlier Expiration.

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(ii) WDC shall be required to pay any costs and expenses incurred by either Party on or prior to the Distribution in connection with this Section 1.8(c). From and after the Distribution, each Party shall bear its own costs and expenses incurred in connection with this Section 1.8(c).

(iii) Unless otherwise determined by WDC in its sole discretion, each of WDC and Spinco shall, and shall cause the members of its Group to, (A) treat for all Tax purposes the portion of each Shared Contract inuring to the Flash Business or non-Flash Business, as the case may be, as Assets owned by, and/or Liabilities of, as applicable, such Party as of the Separation Time and (B) neither report nor take any Tax position (on a Tax Return or otherwise) inconsistent with such treatment (unless required by applicable Law or good faith resolution of a Tax Contest).

(d) Real Property. With respect to any Real Property Interests that will be owned or leased by a member of the Spinco Group but will continue to be used by a member of the WDC Group following the Separation Time, or that will be owned or leased by a member of the WDC Group but will continue to be used by a member of the Spinco Group following the Separation Time, unless otherwise agreed by the applicable parties, the Parties shall, and shall as applicable cause the other members of the Spinco Group or the WDC Group to, (i) with respect to owned Real Property Interests, enter into lease agreements on customary and reasonable market terms in arm’s length transactions taking into account the nature, use and location of the real property and (ii) with respect to leased Real Property Interests, use commercially reasonable efforts to enter into sublease agreements on customary and reasonable “back-to-back basis”, such that the rent and other material terms under such sublease agreements shall be substantially the same (on a relative basis) as the rent and other material terms in the underlying leases, reflecting (A) adjustments to the rent under each such sublease agreement based on the area subleased relative to the total area under the applicable lease agreement for such Real Property Interest and (B) such commercially reasonable costs that the applicable party may incur as sublandlord in the course of managing such sublease agreements.

1.9 Novations of Contracts.

(a) Without limiting the obligations of the Parties under Section 1.8(c), upon WDC’s request, Spinco shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain the novation to the applicable member(s) of the Spinco Group of any Spinco Contract or the portion of a Shared Contract allocated to a member of the Spinco Group, or any other Contract (including without limitation, whether replicated, fully assigned or partially assigned) that is assigned (in whole or in part) to a member of the Spinco Group in accordance with this Agreement, whether prior to, at or following the Separation Time (it being understood that such obligations shall apply following the Separation Time regardless of whether any such Spinco Contract or Shared Contract has been Conveyed pursuant to the terms hereof or such Conveyance was deferred in accordance with Section 1.8).

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(b) Without limiting the obligations of the Parties under Section 1.8(c), upon Spinco’s request, WDC shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain the novation to the applicable member(s) of the WDC Group of any Shared Contract or the portion of a Shared Contract allocated to a member of the WDC Group, or any other Contract (including without limitation, whether replicated, fully assigned or partially assigned) that is assigned (in whole or in part) to a member of the WDC Group in accordance with this Agreement, whether prior to, at or following the Separation Time (it being understood that such obligations shall apply following the Separation Time regardless of whether any such Shared Contract or such other Contract that is assigned (in whole or in part) to a member of the WDC Group has been Conveyed pursuant to the terms hereof or such Conveyance was deferred in accordance with Section 1.8).

(c) Without limiting the obligations of WDC under Section 1.8(c), no member of the WDC Group or the Spinco Group shall be required to make any payments for a novation in accordance with this Section 1.9 (other than as provided for in the underlying Contract, which such payments shall be made by WDC) to any third party for any novation in connection with this Section 1.9; provided, however, that WDC shall be required to pay any costs and expenses incurred by either Party on or prior to the Distribution in connection with this Section 1.9; provided, further, that, from and after the Distribution, each Party shall bear its own costs and expenses incurred in connection with this Section 1.9.

(d) The obligations set forth in this Section 1.9 relating to any Contract shall terminate upon the twelve (12)-month anniversary of the Separation Time or, if the term of such Contract has Expired before the twelve (12)-month anniversary of the Separation Time, upon such earlier Expiration.

1.10 Bank Accounts.

(a) Each of WDC and Spinco shall, and shall cause their respective Subsidiaries to, use their commercially reasonable efforts to take all actions necessary to amend all Contracts governing each bank and brokerage account included as a Flash Asset or owned by Spinco or any other member of the Spinco Group (collectively, the “Spinco Accounts”), so that such Spinco Accounts, if currently linked (whether by automatic withdrawal, automatic deposit or any other authorization to transfer funds from or to, hereinafter “linked”) to any bank or brokerage account owned by WDC or any member of the WDC Group (collectively, the “WDC Accounts”) are de-linked from such WDC Accounts.

(b) Each of WDC and Spinco shall, and shall cause their respective Subsidiaries to, use their commercially reasonable efforts to take all actions necessary to amend all Contracts governing the WDC Accounts so that such WDC Accounts, if currently linked to any Spinco Account, are de-linked from such Spinco Accounts, including updating the names of all persons authorized to draw thereon or make withdrawals therefrom to Representatives of the applicable Party.

(c) With respect to any outstanding checks issued by WDC, Spinco or any of their respective Subsidiaries prior to the Separation Time, such outstanding checks shall be honored from and after the Separation Time by the Person or Group owning the account on which the check is drawn, without modifying in any way the allocation of Liability (and rights to reimbursement) for such amounts under this Agreement or any Ancillary Agreement.

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(d) As between WDC and Spinco (and the members of their respective Groups), all payments made or reimbursements received by either Party after the Distribution that relate to the business Asset or Liability of the other Party (or member of its Group) shall be held by such Party in trust for the use and benefit of the Party entitled thereto and, promptly upon receipt by such Party of any such payment or reimbursement, such Party shall pay over or cause the applicable member of its Group to pay over, to the other Party, the amount of such payment or reimbursement, without right of setoff.

(e) For the avoidance of doubt, Spinco Cash shall not include any cash or cash equivalents included in WDC Accounts.

1.11 No Representation or Warranty. EACH OF WDC (ON BEHALF OF ITSELF AND EACH OTHER MEMBER OF THE WDC GROUP) AND SPINCO (ON BEHALF OF ITSELF AND EACH OTHER MEMBER OF THE SPINCO GROUP) UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR OTHERWISE, NO PARTY TO THIS AGREEMENT IS REPRESENTING OR WARRANTING IN ANY WAY AS TO THE CONDITION OR THE VALUE OF ANY ASSETS, BUSINESSES OR THE AMOUNT OF ANY LIABILITIES CONTRIBUTED, TRANSFERRED, DISTRIBUTED OR ASSUMED AS CONTEMPLATED HEREBY, AS TO ANY CONSENTS OR GOVERNMENTAL APPROVALS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OF ANY ASSETS OF SUCH PARTY, AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY ACTION OR OTHER ASSET, INCLUDING ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY CONTRIBUTION, DISTRIBUTION, ASSIGNMENT, DOCUMENT, CERTIFICATE OR INSTRUMENT DELIVERED HEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. FOR THE AVOIDANCE OF DOUBT, THIS SECTION 1.11 SHALL HAVE NO EFFECT ON ANY REPRESENTATION OR WARRANTY EXPRESSLY MADE HEREIN OR IN ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR OTHERWISE. FOR THE AVOIDANCE OF DOUBT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ANCILLARY AGREEMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT, ANY ANCILLARY AGREEMENT OR OTHERWISE, ANY AND ALL WARRANTIES OF ANY KIND ARE HEREBY DISCLAIMED AND EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

1.12 Waiver of Bulk-Sales Laws. Each of Spinco and WDC hereby waives compliance by each member of the other Party’s respective Group with the requirements and provisions of the “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all of the Assets to any member of the Spinco Group or the WDC Group, as applicable.

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2.1 Separation Time. Subject to the satisfaction and waiver (in accordance with the provisions hereof) of the conditions set forth in Section 7 (other than the conditions, which by their nature are to be satisfied at the Separation Time, but subject to such conditions being capable of being satisfied at the Separation Time), and subject to Section 1.8(b), the effective time and date of each Conveyance and assumption of any Asset or Liability in accordance with Section 1 in connection with the Internal Restructuring shall be immediately prior to the Distribution (the date of the Separation, the “Separation Date” and such time on such date the “Separation Time”) or such other time as determined pursuant to Section 1.8.

2.2 Separation Deliveries.

(a) Agreements to be Delivered by WDC. On the Separation Date, WDC shall deliver, or shall cause its appropriate Subsidiaries to deliver, to Spinco all of the following instruments:

(i) all Transfer Documents as described in Section 2.4 and Section 2.5;

(ii) the Tax Matters Agreement, substantially in the form attached hereto as Exhibit A (the “Tax Matters Agreement”), duly executed by the members of the WDC Group party thereto;

(iii) the Transition Services Agreement, substantially in the form attached hereto as Exhibit B (the “Transition Services Agreement”), duly executed by the members of the WDC Group party thereto;

(iv) the Transitional Trademark License Agreement, substantially in the form attached hereto as Exhibit C (the “Transitional Trademark License Agreement”), duly executed by the members of the WDC Group party thereto;

(v) the Intellectual Property Cross-License Agreement, substantially in the form attached hereto as Exhibit D (the “Intellectual Property Cross-License Agreement”), duly executed by the members of the WDC Group party thereto;

(vi) the Stockholder and Registration Rights Agreement, substantially in the form attached hereto as Exhibit E (the “Stockholder and Registration Rights Agreement”), duly executed by the members of the WDC Group party thereto;

(vii) the Employee Matters Agreement, substantially in the form attached hereto as Exhibit F (the “Employee Matters Agreement”), duly executed by the members of the WDC Group party thereto;

(viii) any other Ancillary Agreements to which the Parties mutually agree; and

(ix) as provided in Item 6 of Schedule 1.7(b)(vi).

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(b) Agreements to be Delivered by Spinco. On the Separation Date, Spinco shall deliver, or shall cause the Spinco Subs to deliver, as appropriate, to WDC all of the following instruments:

(i) all Transfer Documents as described in Section 2.4 and Section 2.5;

(ii) the Tax Matters Agreement, duly executed by the members of the Spinco Group party thereto;

(iii) the Transition Services Agreement, duly executed by the members of the Spinco Group party thereto;

(iv) the Transitional Trademark License Agreement, duly executed by the members of the Spinco Group party thereto;

(v) the Intellectual Property Cross-License Agreement, duly executed by the members of the Spinco Group party thereto;

(vi) the Stockholder and Registration Rights Agreement, duly executed by the members of the Spinco Group party thereto;

(vii) the Employee Matters Agreement, duly executed by the members of the Spinco Group party thereto;

(viii) any other Ancillary Agreements to which the Parties mutually agree; and

(ix) as provided in Item 6 of Schedule 1.7(b)(vi).

2.3 Certain Resignations. WDC shall use its commercially reasonable efforts to cause each employee and director of WDC and its Subsidiaries who will not be employed by Spinco or a Spinco Sub after the Distribution Date to resign, effective not later than the Distribution Date, from all boards of directors or similar governing bodies of Spinco or any Spinco Sub on which they serve, and from all positions as officers of Spinco or any Spinco Sub in which they serve.

2.4 Transfer of Flash Assets and Assumption of Flash Liabilities. In furtherance of the Conveyance of Flash Assets and the assumption of Flash Liabilities provided in Section 1.1 and Section 1.2, on or prior to the Separation Time (and thereafter in accordance with Section 1.8): (a) WDC shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, stock powers, certificates of title, assignments of Contracts, Consents (to the extent obtained), Transferable Permits, easements, leases, deeds and other instruments of Conveyance (in each case in a form that is consistent with the terms and conditions of this Agreement, required by applicable Law to record or register transfer of title in each applicable jurisdiction, and otherwise customary in the jurisdiction in which the relevant Assets are located and reasonably acceptable to the Parties), as and to the extent reasonably necessary or appropriate to evidence the Conveyance of all of WDC’s and its Subsidiaries’ (other than Spinco and the Spinco Subs) right, title and interest in and to the Flash Assets to Spinco and the Spinco Subs (it being understood that no such bill of sale, stock power, certificate of title, deed, assignment of Contract or other instrument of Conveyance shall require WDC or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement or any Ancillary Agreement, except to the extent required to comply with applicable Law, and in which case the Parties shall enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement) and (b) Spinco shall execute and deliver such assumptions of Contracts and other instruments of assumption or Conveyance (in each case in a form that is consistent with the terms and conditions of this Agreement, required by applicable Law to record or register transfer of title in each applicable jurisdiction, and otherwise customary in the jurisdiction in which the relevant Liabilities are located and reasonably acceptable to the Parties) as and to the extent reasonably necessary to evidence the valid and effective assumption of the Flash Liabilities by Spinco (it being understood that no assumptions of Contracts and other instruments of assumption or conveyance shall require Spinco or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement or any Ancillary Agreement, except to the extent required to comply with applicable Law, and in which case the Parties shall enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement). All of the foregoing documents contemplated by this Section 2.4 shall be referred to collectively herein as the “WDC Transfer Documents.”

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2.5 Transfer of Excluded Assets; Assumption of Excluded Liabilities. In furtherance of the Conveyance of Excluded Assets and the assumption of Excluded Liabilities provided in Section 1.3, prior to or at the Separation Time (and thereafter in accordance with Section 1.8): (a) Spinco shall execute and deliver, and shall cause the Spinco Subs to execute and deliver, such bills of sale, stock powers, certificates of title, assignments of Contracts, Consents (to the extent obtained), Transferable Permits, easements, leases, deeds and other instruments of Conveyance (in each case in a form that is consistent with the terms and conditions of this Agreement, required by applicable Law to record or register transfer of title in each applicable jurisdiction, and otherwise customary in the jurisdiction in which the relevant Assets are located and reasonably acceptable to the Parties) as and to the extent reasonably necessary or appropriate to evidence the Conveyance of all of Spinco’s and the Spinco Subs’ right, title and interest in and to the Excluded Assets to WDC and its Subsidiaries (other than Spinco and the Spinco Subs) (it being understood that no such bill of sale, stock power, certificate of title, deed, assignment of Contract or other instrument of Conveyance shall require Spinco or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement or any Ancillary Agreement except to the extent required to comply with applicable Law, and in which case the Parties shall enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement) and (b) WDC shall execute and deliver such assumptions of Contracts and other instruments of assumption or Conveyance (in each case in a form that is consistent with the terms and conditions of this Agreement, required by applicable Law to record or register transfer of title in each applicable jurisdiction, and otherwise customary in the jurisdiction in which the relevant Liabilities are located and reasonably acceptable to the Parties) as and to the extent reasonably necessary to evidence the valid and effective assumption of the Excluded Liabilities by WDC (it being understood that no assumptions of Contracts and other instruments of assumption or conveyance shall require Spinco or any of its Affiliates to make any additional representations, warranties or covenants, expressed or implied, not contained in this Agreement or any Ancillary Agreement, except to the extent required to comply with applicable Law, and in which case the Parties shall enter into such supplemental agreements or arrangements as are effective to preserve the allocation of economic benefits and burdens contemplated by this Agreement). All of the foregoing documents contemplated by this Section 2.5, together with the WDC Transfer Documents, shall be referred to collectively herein as the “Transfer Documents.” The Parties shall perform the obligations set forth in Section 2.4 and this Section 2.5, in each case, in accordance with applicable Law.

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2.6 Exchange. In exchange for the Spinco Contribution, Spinco shall (a) issue to WDC additional shares of Spinco Common Stock such that the number of shares of Spinco Common Stock then outstanding shall be equal to the number of shares of Spinco Common Stock necessary to effect the Distribution and (b) pay to WDC the Spinco Dividend, in immediately available funds to one or more accounts designated by WDC.

3.1 The Distribution.

(a) Subject to the terms and conditions hereof, each Record Holder (other than WDC or any other member of the WDC Group) shall be entitled to receive for each share of common stock, par value $0.01 per share, of WDC (“WDC Common Stock”) held by such Record Holder as of the Record Date one-third (1/3) of one share of Spinco Common Stock. No action by any Record Holder shall be necessary for such Record Holder (or such Record Holder’s designated transferee or transferees) to receive the applicable number of shares of Spinco Common Stock (and, if applicable, cash in lieu of any fractional shares as set forth in Section 3.1(c)) such stockholder is entitled to in the Distribution. For stockholders of WDC who own shares of WDC Common Stock through a broker or other nominee, their shares of Spinco Common Stock will be credited to their respective accounts by such broker or nominee.

(b) Pursuant to the Distribution, WDC shall distribute 80.1% of the Spinco Common Stock owned by WDC, which will be 80.1% of the Spinco Common Stock outstanding immediately prior to the Distribution. In no event shall the aggregate number of shares of Spinco Common Stock issued and distributed in the Distribution exceed 80.1% of the number of shares of Spinco Common Stock held by WDC on the Distribution Date.

(c) Notwithstanding anything herein to the contrary, no fractional shares of Spinco Common Stock shall be issued in connection with the Distribution, and any such fractional share interests to which a Record Holder would otherwise be entitled shall not entitle such Record Holder to vote or to any other rights as a stockholder of Spinco. In lieu of any such fractional shares, each Record Holder who, but for the provisions of this Section 3.1(c) would be entitled to receive a fractional share interest of Spinco Common Stock pursuant to the Distribution, shall be paid cash, as hereinafter provided. WDC shall instruct the distribution agent to determine the number of whole shares and fractional shares of Spinco Common Stock allocable to each Record Holder, to aggregate all such fractional shares into whole shares, to sell the whole shares obtained thereby in the open market at the then-prevailing prices on behalf of each Record Holder who otherwise would be entitled to receive fractional share interests and to distribute to each such Record Holder his, her or its ratable share of the total proceeds of such sale, after deducting any Taxes required to be withheld and any applicable transfer Taxes and the costs and expenses of such sale and distribution, including brokers fees and commissions. The sales of fractional shares shall occur as soon after the Distribution as practicable as determined by the distribution agent. None of WDC, Spinco or the distribution agent shall guarantee any minimum sale price for such fractional shares. Neither WDC nor Spinco shall pay any interest on the proceeds from the sale of fractional shares. The distribution agent shall have the sole discretion to select the broker-dealers through which to sell the aggregated fractional shares and to determine when, how and at what price to sell such shares. Neither the distribution agent nor the broker-dealers through which the aggregated fractional shares are sold shall be Affiliates of WDC or Spinco.

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(d) Neither of the Parties, and none of their respective Affiliates, will be liable to any Person in respect of any shares of Spinco Common Stock (or dividends or distributions with respect thereto) or cash in lieu of fractional shares of Spinco Common Stock (in accordance with Section 3.1(c)) that, in each case, are properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

3.2 Actions Prior to Distribution.

(a) Prior to the date of this Agreement, the Parties caused the Registration Statement to be prepared and filed with the SEC. The Registration Statement was declared effective by the SEC on [●]. The Parties shall cooperate in preparing, filing with the SEC and causing to become effective any other registration statements or amendments or supplements thereto that are necessary or appropriate in order to effect the Transactions, or to reflect the establishment of, or amendments to, any employee benefit plans contemplated hereby or in any Ancillary Agreements.

(b) Prior to the date of this Agreement, the Parties caused an application for the listing on Nasdaq of Spinco Common Stock to be issued to the Record Holders in the Distribution (the “Nasdaq Listing Application”) to be prepared and filed with Nasdaq. Prior to the date of this Agreement, the Parties have caused the Nasdaq Listing Application to be approved, subject to official notice of issuance. WDC shall give Nasdaq notice of the Record Date in compliance with Rule 10b-17 under the Exchange Act.

(c) WDC and Spinco will prepare and mail, prior to the Distribution Date, to the holders of shares of WDC Common Stock, such information concerning Spinco and its businesses, operations and management, the Distribution and such other matters as WDC will reasonably determine and as may be required by applicable Law.

(d) WDC and Spinco will take all such action as may be necessary or appropriate under the securities or “blue sky” Laws of the United States (and any comparable Laws under any foreign jurisdiction) in connection with the Distribution.

(e) WDC and Spinco will take all reasonable steps necessary and appropriate to cause the conditions set forth in Section 7.1 to be satisfied and to effect the Distribution on the Distribution Date.

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(f) Notwithstanding anything to the contrary, any and all costs, expenses and Liabilities incurred by or on behalf of Spinco or any member of the Spinco Group on or prior to the Distribution as a result of or in connection with the matters set forth in Section 3.1 or this Section 3.2 shall be the sole responsibility of WDC and shall be deemed to be Excluded Liabilities for the purposes hereof. From and after the Distribution, each Party shall bear its own costs and expenses incurred as a result of or in connection with the matters set forth in Section 3.1 and this Section 3.2.

(g) Notwithstanding anything to the contrary, without any further action required by any Party, effective as of immediately prior to the Separation Time, all provisions of this Section 3.2, with the exception of Section 3.2(a), Section 3.2(d) (in the event that any such action under “blue sky” Laws has not been taken prior to the Separation Time) and Section 3.2(f), shall automatically terminate and be of no further force and the Parties shall cease to have any rights or obligations thereunder.

3.3 Additional Matters.

(a) Delivery of Shares. Upon the consummation of the Distribution, WDC shall deliver to the transfer agent a book-entry authorization representing the shares of Spinco Common Stock being distributed in the Distribution for the account of the WDC stockholders that are entitled thereto. The Distribution shall be deemed to be effective upon written authorization from WDC to the transfer agent to proceed as set forth in Section 3.1.

(b) Cash Reduction. Prior to 11:59 p.m. Pacific Time on the date that is two Business Days prior to the Distribution (the “Cut-Off Time”), WDC may, and may cause each member of the Spinco Group to, take such actions, at WDC’s sole cost and expense, as WDC deems advisable to minimize or reduce the amount of Spinco Cash in excess of the Spinco Cash Amount remaining in the Spinco Accounts as of the Separation Time.

3.4 Spinco Dividend. The amount of the Spinco Dividend shall be equal to any cash allocable to Spinco in excess of the Spinco Cash Amount as of the Cut-Off Time; provided, that such excess will be calculated after giving effect to the cost of any foreign exchange currency conversions based on the foreign currency exchange rates listed by The Wall Street Journal as of such date and time.

3.5 Subsequent Distributions.

(a) WDC shall (i) be entitled to retain the Retained Stock until the time of a Subsequent Distribution, and (ii) dispose of the Retained Stock pursuant to one or more Subsequent Distributions within twelve (12) months of the Distribution Date. WDC shall, in its sole and absolute discretion, determine whether to effectuate a Subsequent Distribution through one or more Clean-Up Distributions, Debt Exchanges or combination thereof.

(b) To the extent WDC determines to effectuate a Subsequent Distribution as a Debt Exchange, such Debt Exchange shall be effected by means of an intermediated exchange with the Debt Exchange Parties based on arm’s-length terms and conditions, which terms and conditions shall allocate to the Debt Exchange Parties any risk of loss with respect to any Exchange Debt subject to such Debt Exchange and the Retained Stock transferred to any such Debt Exchange Parties pursuant to such Debt Exchange. All profit gained by any Debt Exchange Party shall solely be for such Debt Exchange Party’s account and no such profit shall inure to the benefit of WDC, Spinco or their respective Affiliates.

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(c) Spinco shall cooperate with WDC in all respects to accomplish any Subsequent Distribution and shall, at WDC’s direction, promptly take any and all reasonable actions necessary or desirable to effect any Subsequent Distribution, including the registration under the Securities Act of the offering of the Retained Stock on an appropriate registration form or forms to be designated by WDC and the filing of any necessary documents pursuant to the Exchange Act and the prompt provision of such financial and other information that may be requested by WDC pursuant to Section 5 of this Agreement.

(d) WDC shall manage the negotiations in connection with any Subsequent Distribution and shall select any investment bank(s), manager(s), underwriter(s) or dealer-manager(s) in connection with any Subsequent Distribution, as well as any financial printer, solicitation and/or exchange agent and financial, legal, accounting, tax and other advisors and service providers in connection with any Subsequent Distribution. Spinco and WDC, as the case may be, shall provide to the exchange or distribution agent all share certificates (to the extent certificated) or book-entry authorizations (to the extent not certificated) and Spinco shall provide to WDC and the exchange or distribution agent (as directed by WDC) any information required in order to complete any Subsequent Distribution.

4.1 Release of Pre-Distribution Date Claims.

(a) Spinco Release. Except as provided in Section 4.1(c) and Section 4.4, effective as of the Separation Time, Spinco does hereby, for itself and for each other member of the Spinco Group and (to the extent permitted by applicable Law) all Persons who at any time prior to the Separation Time were directors, officers, partners, managers, employees or agents of any member of the Spinco Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, predecessors, successors and assigns, release and forever discharge each of the WDC Indemnitees from any and all Liabilities whatsoever (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur on or before the Separation Time, or any conditions existing or alleged to have existed on or before the Separation Time, including in connection with the transactions and all other activities to implement the Internal Restructuring contemplated by this Agreement or any Ancillary Agreement. Without limitation, the foregoing release includes a release of any rights and benefits with respect to such Liabilities that Spinco and each member of the Spinco Group, and their respective successor and assigns, now has or in the future may have conferred upon them by virtue of any Law which provides that a general release does not extend to claims which a party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such party’s settlement with the obligor. In this connection, Spinco hereby acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that this release has been negotiated and agreed upon in light of that awareness and it nevertheless hereby intends to release the WDC Indemnitees from the Liabilities described in the first sentence of this Section 4.1(a). Notwithstanding the foregoing, the release described in this Section 4.1(a) shall not apply with respect to obligations from and after the Separation Time under or relating to the Contracts referred to in Section 1.7(b)(iii).

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(b) WDC Release. Except as provided in Section 4.1(c) and Section 4.3, effective as of the Separation Time, WDC does hereby, for itself and for each other member of the WDC Group and (to the extent permitted by applicable Law) all Persons who at any time prior to the Separation Time were directors, officers, partners, managers, employees or agents of any member of the WDC Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, predecessors, successors and assigns, release and forever discharge each of the Spinco Indemnitees from any and all Liabilities whatsoever (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur on or before the Separation Time or any conditions existing or alleged to have existed on or before the Separation Time, including in connection with the transactions and all other activities to implement the Internal Restructuring contemplated by this Agreement or any Ancillary Agreement. Without limitation, the foregoing release includes a release of any rights and benefits with respect to such Liabilities that WDC and each member of the WDC Group, and their respective successor and assigns, now has or in the future may have conferred upon them by virtue of any Law which provides that a general release does not extend to claims which a party does not know or suspect to exist in its favor at the time of executing the release, if knowledge of such claims would have materially affected such party’s settlement with the obligor. In this connection, WDC hereby acknowledges that it is aware that factual matters now unknown to it may have given or may hereafter give rise to Liabilities that are presently unknown, unanticipated and unsuspected, and it further agrees that this release has been negotiated and agreed upon in light of that awareness and it nevertheless hereby intends to release the Spinco Indemnitees from the Liabilities described in the first sentence of this Section 4.1(b). Notwithstanding the foregoing, the release described in this Section 4.1(b) shall not apply with respect to obligations from and after the Separation Time under or relating to the Contracts referred to in Section 1.7(b)(iii).

(c) No Impairment. Nothing contained in Section 4.1(a) or Section 4.1(b) shall: (i) limit or otherwise affect any Person’s rights or obligations pursuant to or contemplated by, or ability to enforce, this Agreement or any Ancillary Agreement in each case in accordance with its terms, including (A) the obligation of Spinco to assume and satisfy the Flash Liabilities; (B) the obligation of WDC to retain, assume and satisfy the Excluded Liabilities; (C) the obligations of WDC and its Affiliates to Convey the Flash Assets free and clear of all Liens (other than Permitted Liens) in accordance with this Agreement; and (D) the obligations of WDC and Spinco to perform their obligations and indemnify each other under this Agreement, including pursuant to Section 3.4 and this Section 4, and the Ancillary Agreements and any Liabilities arising out of or resulting herefrom or therefrom; (ii) apply to any Liability the release of which would result in the release of any Person other than a Person expressly released pursuant to Section 4.1(a) or Section 4.1(b); (iii) apply to any Liability or claim that any individual may have under any employment or benefit arrangement; or (iv) release or discharge any Person from, or waive any rights under, any Liability provided in or resulting from (x) any Contract to which any member of the Spinco Group, on the one hand, and any WDC Group, on the other hand, is a party, that does not terminate as of the Distribution Date in accordance with Section 1.7, or (y) fraud (collectively, the Liabilities and obligations referred to in this Section 4.1(c) and the last sentence of Section 4.1(d), the “Retained Claims”).

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(d) No Actions as to Released Claims. Following the Separation Time, (i) Spinco shall not, and shall cause each other member of the Spinco Group not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution, recovery or any indemnification, against any WDC Indemnitees (in each case, other than in respect of the Retained Claims) and (ii) WDC shall not, and shall cause each other member of the WDC Group not to, make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution, recovery or any indemnification, against any Spinco Indemnitees (in each case, other than in respect of the Retained Claims). In addition, (x) nothing in this Section 4.1 shall release Spinco or any other member of the Spinco Group from indemnifying any current or former director, officer, manager, employee or agent of WDC or any other member of the WDC Group who was a director, officer, manager, employee or agent of Spinco or any other member of the Spinco Group prior to the Distribution Date if such Person was entitled to a right of indemnification pursuant to the organizational documents of Spinco or any Spinco Sub or pursuant to any Contract, it being understood that if the underlying obligation giving rise to such right to indemnification is an Excluded Liability retained by WDC or any other member of the WDC Group, WDC shall indemnify Spinco for such Liability (including Spinco’s costs to indemnify such director, officer, manager, employee or agent) in accordance with the provisions in Section 4.4 and (y) nothing in this Section 4.1 shall release WDC or any other member of the WDC Group from indemnifying any current or former director, officer, manager, employee or agent of Spinco or any other member of the Spinco Group who was a director, officer, manager, employee or agent of WDC or any other member of the WDC Group prior to the Distribution Date if such Person was entitled to a right of indemnification pursuant to the organizational documents of WDC or any other member of the WDC Group or pursuant to any Contract, it being understood that if the underlying obligation giving rise to such right to indemnification is a Flash Liability retained by Spinco or any other member of the Spinco Group, Spinco shall indemnify WDC for such Liability (including WDC’s costs to indemnify such director, officer, manager, employee or agent) in accordance with the provisions in Section 4.3.

4.2 Survival. The covenants in this Agreement or any Ancillary Agreement that by their terms are to be performed following the Separation Time will survive each of the Internal Restructuring and the Distribution and will remain in full force and effect in accordance with their terms (unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims and survival of such covenants will be made thereunder). For the avoidance of doubt, in the event notice of any claim for indemnification under this Section 4 has been given in accordance with Section 4.6 in good faith with reasonable specificity within the applicable survival period, the representations, warranties, covenants and agreements relating to such claim shall survive with respect to such claim until such claim is finally resolved.

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4.3 Indemnification by the Spinco Group. From and after the Separation Time, each member of the Spinco Group shall, on a joint and several basis, indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the WDC Indemnitees from and against, and shall reimburse such WDC Indemnitees with respect to, any and all Losses that proximately result from any of the following items (without duplication):

(a) any Flash Liabilities, including, after the Separation Time, the failure of Spinco or any other member of the Spinco Group or any other Person to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, any such Flash Liabilities; and

(b) any breach of, or failure to perform, by Spinco or any other member of the Spinco Group any covenants or obligations to be performed from and after the Separation Time by such Persons pursuant to this Agreement or the Ancillary Agreements, unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims will be made thereunder.

4.4 Indemnification by WDC. From and after the Separation Time, WDC shall indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Spinco Indemnitees from and against, and shall reimburse such Spinco Indemnitees with respect to, any and all Losses that proximately result from any of the following items (without duplication):

(a) any Excluded Liabilities, including the failure of WDC or any other member of the WDC Group or any other Person to pay, perform, fulfill, discharge and, to the extent applicable, comply with, in due course and in full, any such Excluded Liabilities; and

(b) any breach of, or failure to perform, by WDC or any other member of the WDC Group any covenants or obligations to be performed from and after the Separation Time by such Persons pursuant to this Agreement or the Ancillary Agreements, unless such Ancillary Agreement expressly provides for separate indemnification therein, in which case any such indemnification claims will be made thereunder.

4.5 Limitations on Indemnification. No Indemnitee shall be entitled to indemnification more than once with respect to the same matter, whether pursuant to the indemnification provided for in this Section 4 or any other remedy provided under this Agreement, any Ancillary Agreement.

4.6 Procedures for Indemnification.

(a) An Indemnitee shall give the Indemnifying Party notice of any matter that an Indemnitee has determined has given or would reasonably be expected to give rise to a right of indemnification under this Agreement (other than a Third-Party Claim, which shall be governed by this Section 4.6) within twenty (20) Business Days of such determination, stating the amount of the Loss claimed, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed by such Indemnitee or arises; provided, however, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure.

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(b) If a claim or demand is made against a WDC Indemnitee or a Spinco Indemnitee (each, an “Indemnitee”) by any Person who is not a Party or an Affiliate of a Party (a “Third-Party Claim”) as to which such Indemnitee is or reasonably expects to be entitled to indemnification pursuant to this Agreement, such Indemnitee shall promptly (and in any event by no later than thirty (30) calendar days after receipt by such Indemnitee of written notice of the Third-Party Claim) notify the Party that is or may be required pursuant to this Section 4 or pursuant to any Ancillary Agreement to make such indemnification (the “Indemnifying Party”) in writing, and in reasonable detail, of the Third-Party Claim and provide copies of all notices and documents (including court papers) received by the Indemnitee relating to the Third-Party Claim as of the date of such notice by the Indemnitee to the Indemnifying Party. With respect to notices and documents (including court papers) relating to the Third-Party Claim received by the Indemnitee after the date of such notice by the Indemnitee to the Indemnifying Party, the Indemnitee shall promptly (and in any event by no later than ten (10) Business Days after the Indemnitee’s receipt thereof) deliver to the Indemnifying Party copies of such notices and documents. However the failure to provide notice of any such Third-Party Claim or any subsequent notices or documents pursuant to this clause shall not release the Indemnifying Party from any of its obligations except and solely to the extent the Indemnifying Party shall have been actually and materially prejudiced as a result of such failure (except that the Indemnifying Party or Indemnifying Parties shall not be liable for any expenses incurred by the Indemnitee in defending such Third-Party Claim during the period in which the Indemnitee failed to give such notice).

(c) Other than in the case of any Liability being managed by a Party in accordance with any Ancillary Agreement or as provided in Section 4.8(a) and 4.6(d), an Indemnifying Party shall be entitled (but shall not be required) to assume, control the defense of, and, subject to Section 4.6(f), settle any Third-Party Claim, at such Indemnifying Party’s own cost and expense and by such Indemnifying Party’s own counsel, which counsel must be reasonably acceptable to the applicable Indemnitees, if it gives written notice of its intention to do so and agreement that the Indemnitee is entitled to indemnification under this Section 4 to the applicable Indemnitees within the earlier of (i) thirty (30) calendar days of the receipt of notice from such Indemnitees of the Third-Party Claim and (ii) ten (10) Business Days before the due date for the answer or response to a claim. After such notice from an Indemnifying Party to an Indemnitee of its election to assume the defense of a Third-Party Claim, such Indemnitee shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise or settlement thereof, at its own expense and, in any event, shall reasonably cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party all witnesses, pertinent and material Information and materials in such Indemnitee’s possession or under such Indemnitee’s control relating thereto as are reasonably required by the Indemnifying Party; provided, however, that such access shall not require the Indemnitee to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnitee, result in the loss of any existing Privileges with respect to such information or violate any applicable Law.

(d) Notwithstanding anything to the contrary in this Section 4.6, in the event that: (i) an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim; (ii) there exists a conflict of interest or potential conflict of interest, as reasonably determined by counsel for the Indemnitee, between the Indemnifying Party and the applicable Indemnitee(s); (iii) a Third-Party Claim primarily seeks criminal culpability or an order, injunction or other equitable relief or relief for other than money damages against the Indemnitee; or (iv) the party making such Third-Party Claim is a Governmental Authority with (A) regulatory authority over the Indemnitee or any of its material Assets or (B) authority to bring a criminal charge against the Indemnitee, such Indemnitee(s) shall be entitled to assume the defense of such Third-Party Claim, at the Indemnifying Party’s expense, with counsel of such Indemnitee’s choosing. If the Indemnitee is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall reasonably cooperate with the Indemnitee in such defense and make available to the Indemnitee all witnesses, pertinent and material Information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnitee pursuant to a joint defense agreement to be entered into by Indemnitee and the Indemnifying Party; provided, however, that such access shall not require the Indemnifying Party to disclose any information the disclosure of which would, in the reasonable judgment of the Indemnifying Party, result in the loss of any existing Privileges with respect to such information or violate any applicable Law.

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(e) No Indemnitee may settle, compromise or admit liability with respect to any Third-Party Claim without the consent of the Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed. If an Indemnifying Party has elected not to assume the defense of the Third-Party Claim, it shall not be a defense to any obligation to pay any amount in respect of such Third-Party Claim that the Indemnifying Party was not consulted in the defense thereof, that such Indemnifying Party’s views or opinions as to the conduct of such defense were not accepted or adopted, that such Indemnifying Party does not approve of the quality or manner of the defense thereof or that such Third-Party Claim was incurred by reason of a settlement rather than by a judgment or other determination of liability.

(f) In the case of a Third-Party Claim, no Indemnifying Party shall consent to entry of any judgment or enter into any settlement of the Third-Party Claim without the consent (not to be unreasonably withheld, conditioned or delayed) of the Indemnitee if (i) the effect thereof is to permit any criminal culpability, injunction, declaratory judgment, other order or other non-monetary relief to be entered, directly or indirectly, against any Indemnitee, (ii) such settlement does not release the Indemnitee from all liabilities and obligations with respect to such Third-Party Claim, (iii) such settlement includes an admission of guilt, liability, criminal culpability or violation of Law by or on behalf of the Indemnitee, or (iv) the Indemnifying Party is not obligated to or cannot pay the full amount of Losses arising from such judgment or settlement.

(g) For the avoidance of doubt, the provisions of this Section 4.6 shall not apply to Tax Contests which shall be governed exclusively by the Tax Matters Agreement.

(h) Except as otherwise provided in Section 9.4 or any Ancillary Agreement, following the Separation Time, the indemnification provisions of this Section 4 shall be the sole and exclusive remedy of an Indemnitee for any monetary or compensatory damages or Losses resulting from any breach of this Agreement (including with respect to monetary or compensatory damages or Losses arising out of or relating to, as the case may be, any Flash Liability or Excluded Liability) or any Ancillary Agreement.

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(i) Notwithstanding anything to the contrary in this Section 4.6, in the event of any conflict or inconsistency between this Section 4.6(i), and any other provision of Section 4.6, the following provisions shall control with respect to any Third-Party Claim in respect of any Shared Liabilities; provided, however, that nothing in this Section 4.6(i) shall alter or amend the allocation of responsibilities for Shared Liabilities set forth in Section 1.6. If a Third-Party Claim in respect of any Shared Liabilities is made against a Party, then (A) such Party shall assume the defense of such Third-Party Claim with counsel of such Party’s choosing (subject to the approval of the other Party, such approval not to be unreasonably withheld, conditioned or delayed), with both Parties sharing equally the total fees, costs and expenses incurred in connection with such defense, and (B) any Indemnitee affiliated with such Party (other than a member of the WDC Group or Spinco Group) that is or becomes a named party to the same Third-Party Claim shall be represented by the same counsel as such Party; provided, however, that notwithstanding the foregoing, in the event there is, in the reasonable opinion of the joint counsel referenced herein, a material conflict of interest between or among any of the Persons referenced in this sentence, then each such Person that is subject to any such conflict shall be entitled to their own counsel in connection with such Third-Party Claim, and the expenses of such separate counsel shall be shared equally by the Parties. The Parties shall reasonably cooperate and consult with each other regarding any Third-Party Claim in respect of any Shared Liabilities, including with respect to the defense thereof. Any Indemnitee that is not a member of the WDC Group or Spinco Group shall reasonably cooperate with the Parties regarding any Third-Party Claim in respect of any Shared Liabilities. Each Party shall make available to the other Party all witnesses, pertinent and material Information and materials in such Party’s possession or under such Party’s control, in each case, to the extent such witnesses, pertinent and material Information and materials are reasonably required in connection with a Third-Party Claim in respect of any Shared Liabilities; provided, however, that such access shall be made pursuant to a joint defense agreement; provided further that such access shall not require a Party to disclose any information the disclosure of which would, in the reasonable judgment of the such Party, result in the loss of any existing Privileges with respect to such information or violate any applicable Law. Notwithstanding anything to the contrary herein, no Party will settle, compromise or admit liability with respect to any Third-Party Claim regarding any Shared Liability without the consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed).

4.7 Calculation of Losses. The amount of any Loss that is indemnifiable under this Section 4 will be net of any proceeds actually received by the Indemnitee from any third party (net of any deductible or retention amount or any other third-party costs or expenses incurred by the Indemnifying Party in obtaining such recovery) for indemnification for such Loss that actually reduce the amount of the Loss (“Third-Party Proceeds”). Accordingly, the amount which any Indemnifying Party is required to pay pursuant to this Section 4 to any Indemnitee pursuant to this Section 4 will be reduced by Third-Party Proceeds theretofore actually recovered by or on behalf of the Indemnitee in respect of the related Loss. If an Indemnitee receives a payment required by this Agreement from an Indemnifying Party in respect of any Loss (an “Indemnity Payment”) and subsequently receives Third-Party Proceeds, then the Indemnitee will pay to the Indemnifying Party an amount equal to the excess of the Indemnity Payment received over the amount of the Indemnity Payment that would have been due if the Third-Party Proceeds had been received, realized or recovered before the Indemnity Payment was made. The Indemnitee shall use commercially reasonable efforts to seek to collect or recover any Third-Party Proceeds to which the Indemnitee is entitled in connection with any Liability for which the Indemnitee seeks contribution or indemnification pursuant to this Section 4; provided, however, that the Indemnitee’s inability to collect or recover any such Third-Party Proceeds shall not limit the Indemnifying Party’s obligations hereunder.

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4.8 Certain Actions; Substitution; Subrogation.

(a) Certain Actions. Notwithstanding anything to the contrary set forth in Section 4.6, and subject to the provisions of the Tax Matters Agreement, which shall remain exclusive as to Tax matters, and except to the extent there are actual or potential conflicts of interest between WDC and Spinco with respect to a particular Action (i) WDC may elect to have exclusive authority and control over the investigation, prosecution, defense, appeal and settlement of any and all Actions pending at the Separation Time to the extent the Action relates exclusively to an Excluded Asset and/or Excluded Liability and as to which, solely, a member or members of the WDC Group (and not any member of the Spinco Group) is named as a target or defendant thereunder, (ii) Spinco may elect to have exclusive authority and control over the investigation, prosecution, defense, appeal and settlement of any and all Actions pending at the Separation Time to the extent the Action relates exclusively to a Flash Asset and/or Flash Liability and as to which, solely, a member or members of the Spinco Group (and not any member of the WDC Group) is named as a target or defendant thereunder and (iii) WDC and Spinco will have joint authority and control over the investigation, prosecution, defense, appeal and settlement of any and all Actions pending at the Separation Time which relate to or arise out of the Flash Business, the Flash Assets or the Flash Liabilities and as to which a member of the WDC Group (other than Spinco and the Spinco Subs) is named as a target or defendant thereunder, irrespective of whether a member of the Spinco Group is also named as a target or defendant thereunder (such Actions, a “Joint Control Action”). Notwithstanding the foregoing, in any Action in which both members of the Spinco Group and members of the WDC Group are named parties or that implicates both the Spinco Group, on the one hand, and the WDC Group, on the other hand, in a material respect, including due to the reasonably foreseeable impact on the business of WDC, on the one hand, or Spinco, on the other hand, then such Action shall be deemed to be a Joint Control Action and WDC and Spinco will have joint authority and control over the investigation, prosecution, defense, appeal and settlement of the action each at their own cost. In connection with any Joint Control Action, the Parties shall reasonably consult with each other on a regular basis with respect to strategy and material developments with respect to such action, and no Party may settle or compromise or consent to the entry of judgment in such Action without the consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. The payment of any settlement or judgment in matters pursuant to which WDC and Spinco have joint authority shall be determined in accordance with the extent to which such settlement relates to a Flash Liability or an Excluded Liability, respectively.

(b) Substitution. In the event of an Action that involves solely matters that are indemnifiable and in which the Indemnifying Party is not a named defendant, if either the Indemnitee or the Indemnifying Party so requests, the Parties shall use commercially reasonable efforts to substitute the Indemnifying Party for the named but not liable defendant to be removed from such Action and such defendants shall not be required to make any payments or contribution in connection therewith (regardless if such removal is successful or not). If such substitution or addition cannot be achieved for any reason or is not requested, the rights and obligations of the Parties regarding indemnification and the management of the defense of claims as set forth in this Section 4 shall not be affected.

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(c) Subrogation. In the event of payment by or on behalf of any Indemnifying Party to or on behalf of any Indemnitee in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee, in whole or in part based upon and in proportion to the amount of the Indemnitee’s Liability that the Indemnifying Party has paid, as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

4.9 Payments. Indemnification required by this Section 4 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or an indemnifiable Loss is incurred. The applicable Indemnitee shall deliver to the Indemnifying Party, upon request, reasonable documentation setting forth the basis for the amount of such payments, including documentation with respect to calculations made and consideration of any Third-Party Proceeds that actually reduce the amount of such indemnifiable Losses; provided that the delivery of such documentation shall not be a condition to the payments described in the first sentence of this Section 4.9, but the failure to deliver such documentation may be the basis for the Indemnifying Party to contest whether the applicable Loss or Liability was incurred by the applicable Indemnitee.

4.10 Non-Applicability to Taxes. Except as otherwise specifically provided herein, Tax matters shall be exclusively governed by the Tax Matters Agreement and, in the event of any inconsistency between the Tax Matters Agreement and this Agreement, the Tax Matters Agreement shall control. Indemnification for Tax matters (including procedures relating thereto) shall be exclusively governed by the Tax Matters Agreement.

4.11 Characterization of and Adjustment to Payments.

(a) In the absence of any change in Tax treatment under the Code or except as otherwise required by other applicable Tax Law, any indemnity payments made under this Agreement shall be reported for Tax purposes by the payor and the recipient as distributions or capital contributions, as appropriate, occurring immediately before the Distribution or as payments of an assumed or retained Liability. Any indemnity payment made under this Agreement shall be increased as necessary so that after making all payments in respect to Taxes imposed on or attributable to such indemnity payment, the recipient receives an amount equal to the sum it would have received had no such Taxes been imposed.

(b) Payments of interest shall be treated as deductible by the payor Party or its relevant Subsidiary and as income to the payee Party or its relevant Subsidiary, as permitted and applicable.

(c) In the case of each of the foregoing, no Party shall take any position inconsistent with such treatment. In the event that a Taxing Authority asserts that a Party’s treatment of a payment pursuant to this Agreement should be other than as set forth in this Section 4.11, such Party shall use its commercially reasonable efforts to contest (at the Indemnifying Party’s expenses) such challenge.

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5.1 Access to Personnel and Property.

(a) WDC and Spinco shall use commercially reasonable efforts to preserve all written Information reasonably related to the other Party until the latest of (the “Preservation Period”) (i) the date on which the Information is no longer required to be retained under the retaining party’s record retention policies as in effect immediately prior to the Distribution, including without limitation, pursuant to any litigation hold issued by the retaining party or any of its Subsidiaries prior to the Distribution; (ii) the concluding date of any period as may be required by applicable Law; and (iii) the concluding date of any period during which such Information relates to a pending or threatened Action which is known to the retaining party or its Group in possession of such Information at the time any retention obligation with regard to such Information would otherwise expire; provided that with respect to any pending or threatened Action arising after the Distribution, clause (iii) of this sentence applies only to the extent that the retaining party or its Group in possession of such Information has been notified in writing pursuant to a litigation hold by the other Party of the relevant pending or threatened Action; provided that each Party shall use commercially reasonable efforts to, within a reasonable time following the expiration of the Preservation Period for such Information and upon request of the other Party, purge from its databases, files and other systems or otherwise make unreadable or inaccessible such Information to the extent it is Confidential Information of such other Party; provided, further, that no Party shall be in breach of this Section 5.1(a) if such Party does not have knowledge that certain Information is within its possession, custody or control.

(b) During the Preservation Period, each of WDC and Spinco shall use commercially reasonable efforts to afford to the other and the Representatives of each, at such requesting Party’s expense on a time and materials basis, reasonable access during normal business hours, subject to the restrictions for Privileges (as defined below) or Confidential Information set forth in this Agreement and to the requirements of any applicable Law (including, without limitation, any applicable requirements relating to privacy or disclosure of personal information such as a code of conduct or standard of conduct (provided, however, that the Party restricting any access on the basis of Privilege or requirements of Law shall notify the Party of the access being so restricted and the reasons on which such access is restricted and will arrange for appropriate substitute access or disclosure)), to the personnel, properties, and, in connection with access to such personnel and properties, Information of such Party and its Subsidiaries insofar as such access is reasonably required by the requesting Party (including as may be reasonably necessary to prosecute, maintain or enforce Intellectual Property Rights that are Excluded Assets (in the case of WDC as the requesting Party) or Flash Assets (in the case of Spinco as the requesting Party) in the ordinary course of business), upon the reasonable prior written request by such Party for access to reasonably specific and reasonably identified personnel, properties and Information, and only for the duration such access is reasonably requested and required by the requesting Party, and (x) relates to such requesting Party; (y) relates to, in the case of requests from WDC, the Flash Assets prior to the Separation Time solely as may be reasonably necessary in connection with the prosecution or defense of any Action for which the requesting Party may have Liability under, or may have rights pursuant to the assets Conveyed pursuant to, this Agreement (except for claims, demands or Actions between members of each Group) or the Excluded Assets, and in the case of requests from Spinco, the Excluded Assets prior to the Separation Time solely as may be reasonably necessary in connection with the prosecution or defense of any Action for which the requesting Party may have Liability under, or may have rights pursuant to the assets Conveyed pursuant to, this Agreement (except for claims, demands or Actions between members of each Group) or the Flash Assets; or (z) is reasonably required by a Party to perform its obligations under this Agreement or any Ancillary Agreement to which such Party or any of its Affiliates is a party; provided, however, that the Party providing such access may require that such Representatives execute a confidential non-disclosure agreement agreeing to be bound by the provisions of this Section 5, unless such individual is already subject to a non-disclosure agreement containing at least substantially the same terms and conditions as this Section 5 with respect to Confidential Information; provided, further, that nothing in this Section 5.1 shall be deemed to grant Spinco or any Spinco Sub, on the one hand, or WDC or any Subsidiary of WDC, on the other hand, any license, easement, servitude or similar right with respect to any real property or Intellectual Property Rights (without limiting the Transitional Trademark License Agreement or the Intellectual Property Cross-License Agreement) that are an Excluded Asset or a Flash Asset, respectively. For the avoidance of doubt, the Tax Matters Agreement, and not this Section 5.1, shall govern access to and the retention and exchange of Tax Returns, schedules and work papers and all material records or other documents relating to Tax matters.

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5.2 Witness Services. Subject to Section 5.3, during the Preservation Period, each of WDC and Spinco shall use its commercially reasonable efforts to make available to the other, upon reasonable prior written request, its and its Subsidiaries’ directors, officers, employees and agents (taking into account the work schedules and other commitments of such Persons) as witnesses to the extent that (a) such Persons may reasonably be required to testify in connection with the prosecution or defense of any Action for which the requesting Party may have Liability under this Agreement or in connection with the Transactions (except for claims, demands or Actions between members of each Group) or the enforcement of any rights included in the Flash Assets (in the case of Spinco as the requesting Party) or the Excluded Assets (in the case of WDC as the requesting Party), including enforcement of Intellectual Property Rights, or the defense of any rights included in the Flash Assets (in the case of Spinco as the requesting Party) or the Excluded Assets (in the case of WDC as the requesting Party), including the defense of Intellectual Property Rights from challenges to the validity, enforceability or ownership thereof and (b) there is no adversity in the Action between the requesting Party and the other Party except for the time and effort required in connection with the services of the officers, directors and employees and agents of the other Party. The reasonable and documented out-of-pocket costs and expenses incurred in the provision of such witnesses shall be paid by the Party requesting the availability of such Person.

5.3 Privileged Matters.

(a) The respective rights and obligations of the Parties to maintain, preserve, assert or waive any or all privileges belonging to either Party or its Subsidiaries with respect to the Flash Business or the other businesses of WDC, including the attorney-client and work product privileges (collectively, “Privileges”), will be governed by the provisions of this Section 5.3.

(b) Notwithstanding anything to the contrary contained herein, (i) WDC shall have the sole authority to assert or waive all Privileges with respect to communications and work product that (x) involve, or were made by, any attorney or attorneys representing any party or parties within the WDC Group and/or the Spinco Group, (y) existed at any time at or prior to the Separation Time and (z) either (1) do not relate to the Flash Business, the Flash Assets or the Flash Liabilities, or (2) relate to the consummation of the Transactions, including the negotiation and execution of this Agreement and the Ancillary Agreements (but excluding any Privileges to the extent related to any Shared Liabilities) (the “WDC Pre-Separation Privileged Materials”) and (ii) Spinco shall have the sole authority to assert or waive all Privileges with respect to communications and work product that (x) involve, or were made by, any attorney or attorneys representing any party or parties within the WDC Group and/or the Spinco Group, (y) existed at any time at or prior to the Separation Time and (z) relate solely to the Flash Business, the Flash Assets and/or the Flash Liabilities (the “Spinco Pre-Separation Privileged Materials”, and the WDC Pre-Separation Privileged Materials or the Spinco Pre-Separation Privileged Materials, the “Exclusive Pre-Separation Privileged Materials”).

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(c) With respect to communications and work product protected by any Privileges that (x) involve, or were made by, an attorney or attorneys representing any party or parties within the WDC Group and/or the Spinco Group, (y) existed at any time at or prior to the Separation Time, and (z) do not constitute Exclusive Pre-Separation Privileged Materials (the “Shared Pre-Separation Privileged Materials”), WDC shall retain all applicable Privileges; provided, however, that (i) WDC shall not waive any Privilege with respect to Shared Pre- Separation Privileged Materials without the prior written consent of Spinco, such consent not to be unreasonably withheld, and (ii) WDC shall provide Spinco and members of the Spinco Group with reasonable access to such Shared Pre-Separation Privileged Materials. In connection with affording Spinco or any member of the Spinco Group access to such Shared Pre-Separation Privileged Materials, the Parties and their respective Group’s shall cooperate with one another to take appropriate steps to preserve the Privileges afforded to such Shared Pre-Separation Privileged Materials, including by entering into a common interest and joint defense agreement or such other steps as may be reasonably necessary in order to preserve the Privileges afforded to such Shared Pre-Separation Privileged Materials.

(d) 

(i) Upon receipt by a Party or any of its Affiliates, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Exclusive Pre-Separation Privileged Materials of the other Party, or if a Party, or any of its Affiliates, as the case may be, obtains knowledge that any current or former employee of such Party or its Affiliates, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of the other Party’s Exclusive Pre-Separation Privileged Materials, such Party will promptly notify the other Party of the existence of the request and, to the extent legally permissible, provide such other Party with prompt written notice of the existence, terms and circumstances surrounding such request or requirement so that such other Party may (A) seek an injunction, protective order or other appropriate remedy or (B) waive compliance with the provisions of this Agreement. Any such communications required to be disclosed shall not be used against the Party to whom such Exclusive Pre-Separation Privileged Materials belong in any claim between the Parties.

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(ii) Upon receipt by a Party or any of its Affiliates, as the case may be, of any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Shared Pre-Separation Privileged Materials, or if a Party or any of its Affiliates, as the case may be, obtains knowledge that any current or former employee of such Party or its Affiliates, as the case may be, receives any subpoena, discovery or other request from any third party that actually or arguably calls for the production or disclosure of Shared Pre-Separation Privileged Materials, such Party will promptly notify the other Party of the existence of the request and, to the extent legally permissible, provide the other Party with prompt written notice of the existence, terms and circumstances surrounding such request or requirement so that the Parties may (A) seek an injunction, protective order or other appropriate remedy or (B) waive compliance with the provisions of this Agreement. No Shared Pre-Separation Privileged Materials shall be used against either Party in any dispute between the Parties.

(e) 

(i) Any attorney-client relationship between any member of the Spinco Group, on the one hand, and any attorney employed by any member of the WDC Group as of the Separation Time, on the other hand, shall automatically terminate at the Separation Time. Each member of the Spinco Group hereby waives any conflict with respect to the continued representation of any member of the WDC Group by such attorney and, if so required, agrees to execute a written waiver of such continued representation.

(ii) Any attorney-client relationship between any member of the WDC Group, on the one hand, and any attorney employed by any member of the Spinco Group as of the Separation Time, on the other hand, shall automatically terminate at the Separation Time. Each member of the WDC Group hereby waives any conflict with respect to the continued representation of any member of the Spinco Group by such attorney and, if so required, agrees to execute a written waiver of such continued representation.

6.1 Further Assurances; Cooperation.

(a) Subject to the limitations or other provisions of this Agreement and any Ancillary Agreement: (i) each of the Parties shall use commercially reasonable efforts (subject to, and in accordance with, applicable Law) to take promptly, or cause to be taken promptly, all actions, and to do promptly, or cause to be done promptly, and to assist and cooperate with the other Party in doing, all things reasonably necessary, proper or advisable to consummate and make effective the Transactions and carry out the intent and purposes of this Agreement and the Ancillary Agreements, including (x) using commercially reasonable efforts to obtain satisfaction of the conditions precedent to each Party’s obligations hereunder or in any Ancillary Agreement within its reasonable control; (y) performing all covenants and agreements herein or in any Ancillary Agreement applicable to such Party; and (z) executing and delivering any Transfer Document; and (ii) none of the Parties will, without the prior written consent of the other applicable Party, take any action which would reasonably be expected to prevent or materially impede, interfere with or delay the Transactions. Without limiting the generality of the foregoing, where the cooperation of third parties, such as insurers or trustees, would be necessary in order for a Party to completely fulfill its obligations under this Agreement or the Ancillary Agreements, such Party shall use commercially reasonable efforts to cause such third parties to provide such cooperation. Nothing in this Section 6.1 will operate to affect the rights and obligations of the Parties under Section 1 and Section 2.

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(b) To the extent that any Ancillary Agreements, or schedules or exhibits thereto (including, for example, the Services Schedule and the Data Processing Addendum referred to in the Transition Services Agreement) are specified to be completed following the date hereof, the Parties shall mutually agree upon the terms, covenants, agreements and contents of such items in good faith, except to the extent a different standard for completion of such item is specified elsewhere in this Agreement or the other Ancillary Agreements, in which case such specifically specified standard for completion shall apply.

6.2 Removal of Tangible Assets. Except as may be otherwise provided in the Ancillary Agreements or otherwise agreed to by the Parties, the Parties shall reasonably cooperate, after the Separation Time, with respect to moving or causing to be moved (i) from any facilities of the WDC Group, all tangible Flash Assets and (ii) from any Spinco Real Property, all tangible Excluded Assets, in each case, in a manner so as not to unreasonably interfere with the operations of any member of the WDC Group or Spinco Group and not to cause damage to any facilities or real property.

6.3 Guarantees.

(a) Except as otherwise specified in any Ancillary Agreement, on or prior to the Separation Time or as soon as practicable thereafter, (i) Spinco shall (with the reasonable cooperation of the applicable member of the WDC Group) use its commercially reasonable efforts to novate, assign or replace (including by inserting Spinco as replacement guarantor) any Spinco Guarantee in order to remove or otherwise have released any member of the WDC Group that is a guarantor of or obligor for any such Spinco Guarantee and (ii) WDC shall (with the reasonable cooperation of the applicable member of the Spinco Group) use its commercially reasonable efforts to novate, assign or replace (including by inserting WDC as replacement guarantor) any WDC Guarantee in order to remove or otherwise have released any member of the Spinco Group that is a guarantor of or obligor for any such WDC Guarantee (in each case, any such novation, assignment, replacement, removal or release, a “Guarantee Release”).

(b) On or prior to the Separation Time, to the extent required to obtain a Guarantee Release:

(i) of any Spinco Guarantee, Spinco will use its commercially reasonable efforts to execute a replacement Spinco Guarantee in the form of the existing Spinco Guarantee (after giving effect to the Guarantee Release) or such other form as is agreed to by the relevant parties to such Spinco Guarantee, except to the extent that such replacement Spinco Guarantee contains representations, covenants or other terms or provisions either (A) with which Spinco would be reasonably unable to comply or (B) which would be reasonably expected to be breached; and

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(ii) of any WDC Guarantee, WDC will use its commercially reasonable efforts to execute a replacement WDC Guarantee in the form of the existing WDC Guarantee (after giving effect to the Guarantee Release) or such other form as is agreed to by the relevant parties to such WDC Guarantee, except to the extent that such replacement WDC Guarantee contains representations, covenants or other terms or provisions either (A) with which WDC would be reasonably unable to comply or (B) which would be reasonably expected to be breached.

(c) If a Party is unable to obtain a Guarantee Release prior to the Separation Time, then the other Party will: (i) continue to use its commercially reasonable efforts to obtain a Guarantee Release; (ii) indemnify, defend and hold harmless the other Party and its Affiliates against, and reimburse such Party and its Affiliates for, any Losses of such Party and its Affiliates incurred by them because such Party or its Affiliate is required to make any payment required under any such WDC Guarantee or Spinco Guarantee, as applicable; and (iii) agree not to (and to cause members of their respective Groups not to) renew or extend the term of, increase its obligations under, or transfer to a third party, any loan, guarantee, lease, contract or other obligation for which the other Party or member of such Party’s Group is or may be liable, without the prior written consent of such other Party, unless all obligations of such other Party and the other members of such Party’s Group with respect thereto are thereupon terminated by documentation reasonably satisfactory in form and substance to such Party. Each Party’s commercially reasonable efforts with respect to this Section 6.3 shall not require such Party to take any action that would be reasonably expected to expose it or any other member of its Group to any incremental expenses or losses of benefits. Any costs and expenses incurred by the Parties arising out of or related to the matters set forth in this Section 6.3 shall be borne by the Parties in accordance with Section 9.1.

6.4 Insurance Matters.

(a) Subject to, and other than as set forth in Section 6.4(b), Spinco acknowledges that from and after the Separation Time: (i) any insurance policies maintained by WDC or its Subsidiaries, including any self-insurance, fronted insurance or captive insurance policy or program (the “WDC Insurance Policies”), shall not be available, transferred or assigned to Spinco, the Spinco Subs, the Flash Assets or the Flash Business; (ii) Spinco, the Spinco Subs, the Flash Assets and the Flash Business shall cease to be insured by the WDC Insurance Policies; and (iii) Spinco shall be responsible for securing all insurance it deems appropriate for the operation of Spinco, the Spinco Subs, the Flash Assets and the Flash Business.

(b) From and after the Separation Time, Spinco and the Spinco Subs shall have the right to assert claims under the occurrence-based WDC Insurance Policies covering the period prior to the Separation Time, other than any self-insurance, fronted insurance or captive insurance policy or program (“Shared WDC Policies”), arising out of any actual or alleged occurrence occurring prior to the Separation Time relating to Spinco, the Spinco Subs, the Flash Assets or the Flash Business (“Pre-Separation Spinco Claims”). Except as provided in this Section 6.4(b), from and after the Separation Time, WDC shall have no obligation to Spinco and the Spinco Subs with respect to or under any of the Shared WDC Policies; provided that from and after the Separation Time, WDC shall use commercially reasonable efforts to direct any carriers under the Shared WDC Policies to make any available insurance coverage under the Shared WDC Policies available to Spinco, the Spinco Subs, the Flash Assets and the Flash Business for Pre-Separation Spinco Claims; provided, further, that (i) all deductibles, retentions, claims handling fees and similar amounts incurred or payable under any such Shared WDC Policies shall be shared in the same proportion as any insurance proceeds actually received by the WDC Group, on the one hand, and the Spinco Group, on the other hand, with respect to any one claim (or related claims) under the relevant Shared WDC Policy and (ii) Spinco shall be solely responsible for any retrospective premium increases to the extent attributable to any Pre-Separation Spinco Claims; provided, further, that any amounts due to WDC under this Section 6.4(b) shall be remitted promptly by Spinco to WDC following WDC’s written request.

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(c) With respect to Pre-Separation Spinco Claims, Spinco and the Spinco Subs shall be solely responsible for the submission, processing, administration and handling of the Pre-Separation Spinco Claims under the Shared WDC Policies; provided, however, that at Spinco’s reasonable request and sole cost and expense, WDC shall reasonably cooperate with and assist Spinco and the Spinco Subs in the submission, processing, administration and handling of the Pre-Separation Spinco Claims under the Shared WDC Policies.

(d) Spinco and the Spinco Subs shall keep WDC reasonably apprised of any Pre-Separation Spinco Claims under the Shared WDC Policies, and WDC shall have the right to reasonably monitor any such Pre-Separation Spinco Claims under the Shared WDC Policies.

(e) With respect to all Shared WDC Policies, Spinco and the Spinco Subs agree and covenant not to make any claim or assert any rights against WDC or under the Shared WDC Policies except as expressly provided under this Section 6.4.

(f) Notwithstanding anything in this Agreement, (i) WDC shall not be deemed to have made any representation or warranty as to the availability of any coverage under any Shared WDC Policies; (ii) except for Retained Claims or as provided in Section 4.4, neither WDC nor its Subsidiaries shall be liable to Spinco or the Spinco Subs for any claims, or portions thereof, not covered by an insurer under any Shared WDC Policy for any reason, including any deductibles, retentions, policy terms, conditions, exclusions, limitations or restrictions (including erosion or exhaustion of limits), coverage disputes, failure to timely notice a claim by WDC, Spinco or the Spinco Subs, any defect in such claim or its processing or bankruptcy or insolvency of any insurance carrier; and (iii) WDC shall retain all rights to control the Shared WDC Policies, including the right to erode, exhaust, settle, release, commute, buy back or otherwise resolve disputes with respect to any of the Shared WDC Policies, notwithstanding the right of Spinco and the Spinco Subs to make claims under the Shared WDC Policies in accordance with this Section 6.4.

6.5 Casualty and Condemnation(a) . If, between the date hereof and the Separation Time, there shall occur any physical damage to or destruction of, or theft or similar loss of, any of the material tangible Assets described in Section 1.5(a) (a “Casualty Loss”) or any condemnation or taking by eminent domain by a Governmental Authority of any of the Assets described in Section 1.5(a) (a “Condemnation Event”), then: (i) WDC shall use its commercially reasonable efforts to (A) replace or repair (as applicable) the asset or property subject to such Casualty Loss and (B) replace the asset or property that has been condemned or taken such that the operation of the Flash Business can continue in all material respects in the ordinary course consistent with past practices; or (ii) if the Separation is consummated notwithstanding such Casualty Loss or Condemnation Event, and if such damaged, destroyed, stolen, lost or condemned or taken Assets have not been repaired or replaced as of the Separation Time, then, without limiting Spinco’s or any member of the Spinco Group’s other rights hereunder, promptly after any casualty insurance proceeds, business interruption insurance proceeds or condemnation proceeds payable to WDC or any of its Affiliates with respect to such Casualty Loss or Condemnation Event have been actually collected, WDC shall, or shall cause its Affiliate to, pay to Spinco: (x) the aggregate amount, if any, of such casualty insurance proceeds described above actually paid to WDC or any of its Affiliates in connection with such Casualty Loss; (y) the aggregate amount, if any, of such business interruption insurance proceeds described above actually paid to WDC or any of its Affiliates in connection with such Casualty Loss; and (z) the aggregate amount, if any, of such condemnation proceeds described above actually paid to WDC or any of its Affiliates in connection with such Condemnation Event, in each case, net of any deductible or retention amount or any other costs or expenses incurred in obtaining such recovery. WDC shall, and shall cause its Affiliates to, use commercially reasonable efforts to collect amounts due (if any) under insurance policies or programs in respect of any Casualty Loss or as a result of a Condemnation Event. The amount of any insurance or condemnation proceeds described above actually paid to WDC shall be included as a Flash Asset and not be distributable cash available to WDC or any other member of the WDC Group.

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6.6 Confidentiality.

(a) For a period of four (4) years following the Separation Time (or such longer period applicable in accordance with the last sentence of this Section 6.6(a) or Section 6.6(b)), the Parties shall hold, and shall cause each of their respective controlled Affiliates to hold, and each of the foregoing shall cause their respective directors, officers, employees, agents, consultants and advisors to hold, in strict confidence, and not to disclose or release or use, for any purpose other than as permitted pursuant to this Agreement or the Ancillary Agreements (including as reasonably necessary to provide or receive services under the Transition Services Agreement), without the prior written consent of the applicable Party concerning its Confidential Information, any and all Confidential Information concerning the other Party or such Party’s Group; provided, however, that the Parties may disclose, or may permit disclosure of, Confidential Information: (i) to their respective auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who have a need to know such information for auditing and other non-commercial purposes and are informed of their obligation to hold such information confidential to the same extent as is applicable to the Parties and in respect of whose failure to comply with such obligations, the applicable Party will be responsible; (ii) if the Parties or any of their respective controlled Affiliates are required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of Law or stock exchange rule; (iii) as required in connection with any legal or other proceeding by one Party against the other Party; or (iv) as necessary in order to permit a Party to prepare and disclose its financial statements, or other disclosures required by Law or applicable stock exchange. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (ii) above, the applicable Party shall promptly notify the Party whose Confidential Information is the subject of such demand or request for disclosure of the existence of such request or demand and, to the extent commercially practicable, shall provide such Party thirty (30) calendar days (or such lesser period as is commercially practicable) to seek an appropriate protective order or other remedy, which the applicable Party will cooperate in obtaining. In the event that such appropriate protective order or other remedy is not obtained, the Party whose Confidential Information is required to be disclosed shall or shall cause the other applicable Party to furnish, or cause to be furnished, only that portion of the Confidential Information that is legally required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such information. With respect to any and all Confidential Information that is a Trade Secret, the confidentiality obligations in this Section 6.6(a) shall continue in full force and effect for as long as such Confidential Information remains a Trade Secret under applicable Law.

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(b) The provisions of this Section 6.6 do not limit the obligations of any Party regarding the confidentiality of Confidential Information under any other Contract.

(c) Nothing in this Section 6.6 shall alter or limit any rights or obligations of WDC or Spinco pursuant to the Intellectual Property Cross-License Agreement.

6.7 Receipt of Communications; Payments. After the Separation Time, each Party (or any member of its Group) may receive mail, packages and other communications properly belonging to the other Party (or any member of its Group). Accordingly, at all times after the Separation Time, each Party authorizes the other Party to receive and, if necessary to identify the proper recipient in accordance with this Section 6.7, open all mail, packages and other communications received by such Party that belongs to such other Party, and to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail, packages or other communications (or, in case the same also relates to the business of the receiving Party or another Party, copies thereof) to such other Party as provided for in Section 9.6; provided that the failure to deliver such mail, packages or other communications (or copies thereof) shall not constitute a breach of this Section 6.7 except to the extent that any such Party shall have been actually prejudiced as a result of such failure. The provisions of this Section 6.7 are not intended to, and shall not, be deemed to constitute an authorization by either Party to permit the other to accept service of process on its behalf and no Party is or shall be deemed to be the agent of any other Party for service of process purposes. After the Separation Time, each of Spinco and WDC shall cause the other members of its respective Group and its and any of their respective then-Affiliates to, promptly pay or deliver to the other Party (or their designee) any monies or checks that have been received after the Separation Time to the extent they are (or represent the proceeds of) an Excluded Asset or a Flash Asset, respectively.

6.8 Real Property Transfer Obligations. WDC shall, and shall cause its Affiliates to, make all filings and submissions, and take all other steps, required by Law in connection with all Real Property Transfer Obligations, to the extent applicable to any of the transactions contemplated by this Agreement; provided that WDC shall, and shall cause its Affiliates to, reasonably consult with Spinco with respect to such filings, submissions and compliance, including reasonably consulting with Spinco on any determination regarding the need to make any filing or submission and providing Spinco with a reasonable opportunity to comment on a draft of any required filing or submission. WDC shall pay any costs relating to, arising out of or resulting from such filings, submissions and compliance with respect to any Real Property Transfer Obligations.

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6.9 Non-Competition. For a period of forty (40) months from and after the Separation Time (the “Restricted Period”) and except as otherwise permitted in the Ancillary Agreements or any Contracts set forth in Schedule 1.7(b)(vi), WDC shall not, and shall cause its controlled Affiliates not to, develop, manufacture, market or sell standalone SSDs (whether internal or external SSDs). For the avoidance of doubt, this Section 6.9 shall not apply to HDDs that include Flash Business Products as a component or to Platforms Products.

6.10 Specified Trademarks. From and after the Separation Time, WDC (i) shall not, and shall cause its Affiliates not to, use in commerce, prosecute or take any action to maintain, and (ii) shall, and shall cause its Affiliates to, abandon and permit to lapse, the Specified Trademarks.

7.1 Conditions to the Distribution. The obligations of WDC to effect the Distribution pursuant to this Agreement shall be subject to the satisfaction, or, to the extent permitted by applicable Law, waiver by WDC, in its sole and absolute discretion (subject to Section 9.7), at or prior to the Separation Time of each the following conditions:

(a) the WDC Board shall have declared the Distribution and approved all related Transactions, which declaration may be made or withheld at its sole and absolute discretion (and such declaration or approval shall not have been withdrawn);

(b) the Registration Statement shall have been declared effective by the SEC, with no stop order suspending the effectiveness of the Registration Statement in effect, and no proceedings for such purpose shall be pending before, or threatened by, the SEC;

(c) WDC shall have mailed the Information Statement (and such other information concerning Spinco, the Distribution and such other matters as the Parties shall determine and as may otherwise be required by Law) to the applicable Record Holders;

(d) Nasdaq shall have approved the Nasdaq Listing Application, subject to office notice of issuance;

(e) the Internal Restructuring shall have been completed in all material respects prior to the Distribution, other than such steps (if any) that are expressly contemplated to occur at or after the Distribution;

(f) the Ancillary Agreements shall have been executed and delivered by each of the parties thereto;

(g) an independent appraisal firm shall have delivered (i) opinions, dated as of (x) the date of the declaration of the Distribution by the WDC Board and (y) the Distribution Date (or, with respect to clause (y), a bringdown of such opinion as of the Distribution Date), to the WDC Board that (1) after giving effect to the consummation of the Transactions, (A) the assets of each of WDC and Spinco, at a fair valuation, exceed its respective debts (including contingent liabilities), (B) each of WDC and Spinco will be able to pay its respective debts (including contingent liabilities) as they become due and (C) neither WDC nor Spinco will have an unreasonably small amount of either assets or capital for the operations of the businesses in which it is engaged or in which management has indicated it intends to engage and (2) immediately prior to giving effect to the Distribution and pursuant to Section 170 of the DGCL, the surplus of WDC exceeds the net amount of the value of the Distribution less the Spinco Dividend and (ii) opinions, dated as of (x) the date of the declaration of the Spinco Dividend by the Board of Directors of Spinco (the “Spinco Board”) and (y) the Distribution Date (or, with respect to clause (y), a bringdown of such opinion as of the Distribution Date), to the Spinco Board that (1) after giving effect to the consummation of the Transactions, (A) the assets of Spinco, at a fair valuation, exceed its debts (including contingent liabilities), (B) Spinco will be able to pay its debts (including contingent liabilities) as they become due and (C) Spinco will not have an unreasonably small amount of either assets or capital for the operations of the businesses in which it is engaged or in which management has indicated it intends to engage and (2) immediately prior to giving effect to the Spinco Dividend and pursuant to Section 170 of the DGCL, the surplus of Spinco exceeds the amount of the Spinco Dividend (the opinions to be delivered pursuant to clause (i) and clause (ii), collectively, the “Solvency Opinions”); and such Solvency Opinions shall be reasonably acceptable to WDC in form and substance; and such Solvency Opinions shall not have been withdrawn or rescinded or modified in any respect adverse to WDC;

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(h) WDC shall have obtained an opinion from Skadden, Arps, Slate, Meagher & Flom LLP, tax counsel to WDC, in form and substance satisfactory to WDC (in its sole discretion), to the effect that the Spinco Contribution, taken together with the Distribution, will qualify as a tax-free reorganization under Sections 368(a)(1)(D), 361 and 355 of the Code;

(i) all other actions and filings necessary or appropriate under the securities and “blue sky” Laws of the United States (and any comparable Laws under any foreign jurisdiction) in connection with the Distribution shall have been taken;

(j) (i) the waiting periods (including all extensions thereof), filings, Governmental Approvals, authorizations or consents applicable to the consummation of the Transactions shall have expired, been terminated, been made or been obtained (ii) the approvals and notices specified under any Law listed on Schedule 7.1(j) shall have been obtained and provided;

(k) no preliminary or permanent injunction or other order, decree, or ruling issues by a Governmental Authority, and no statute (as interpreted through orders or rules of any Governmental Authority duly authorized to effectuate the statute), rule, regulation or executive order promulgated or enacted by any Governmental Authority shall be in effect preventing the consummation of, or materially limiting the benefits of, the Transactions;

(l) no other event or development shall have occurred or failed to occur that, in the judgment of the WDC Board, in its sole discretion, prevents the consummation of the Transactions or any portion thereof or makes the consummation of the Transactions inadvisable; and

(m) (I) WDC shall have either (i) refinanced the obligations under its Existing Credit Agreement or (ii) obtained a waiver from the requisite lenders under its Existing Credit Agreement, in each case, in a manner and to the extent necessary (as determined by WDC in good faith) to permit the Transactions and (II) Spinco shall have consummated the necessary debt financing transactions (as determined by Spinco in good faith).

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8.1 Negotiation.

(a) Each Party shall appoint a representative who shall be responsible for administering this dispute resolution provision (each, an “Appointed Representative”). The Appointed Representatives shall have the authority to resolve any such disputes.

(b) Except as otherwise provided in this Agreement or in any Ancillary Agreement, in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity, termination or breach of this Agreement or any Ancillary Agreement or otherwise arising out of, or in any way related to, this Agreement or any Ancillary Agreement or the transactions contemplated hereby or thereby (collectively, the “Agreement Disputes”), the Appointed Representatives shall negotiate in good faith for a reasonable period of time to settle such Agreement Dispute; provided, however, that: (i) such reasonable period shall not, unless otherwise agreed to by the Parties, exceed thirty (30) calendar days from the time of receipt by a Party; and (ii) the relevant employees from the relevant Parties shall first have tried to resolve the differences between the Parties. Nothing said or disclosed, nor any document produced, in the course of any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that is not otherwise independently discoverable shall be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.

(c) Unless otherwise agreed in writing, the Parties will continue to provide service and honor all other commitments under this Agreement and each Ancillary Agreement during the course of dispute resolution pursuant to the provisions of this Section 8.1 with respect to all matters not specifically subject to such dispute resolution.

(d) Except as otherwise specifically provided herein, this Section 8.1 shall not apply to Section 3.4.

9.1 Expenses. Except as otherwise provided in this Agreement, the Transfer Documents or any Ancillary Agreement, or as otherwise agreed to in writing by the Parties, whether or not the Transactions are consummated, WDC shall bear all costs and expenses of any member of the Spinco Group or WDC Group incurred on or prior to the Distribution in connection with the preparation, execution, delivery and implementation of this Agreement, the Transfer Documents, the Ancillary Agreements and the transactions contemplated hereby and thereby; provided that, except as otherwise provided in this Agreement, the Transfer Documents or any Ancillary Agreement, from and after the Distribution, each Party shall bear its own direct and indirect costs and expenses incurred in connection with the preparation, execution, delivery and implementation of this Agreement, the Transfer Documents, the Ancillary Agreements and the transactions contemplated hereby and thereby.

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9.2 Entire Agreement. This Agreement and the Ancillary Agreements, including any schedules, exhibits and amendments hereto and thereto, and the other agreements and documents referred to herein and therein, shall together constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all prior negotiations, agreements and understandings, both written and oral, between the Parties with respect to such subject matter hereof and thereof.

9.3 Governing Law. This Agreement and the consummation of the Transactions, and any Action (whether at law, in contract, in tort or otherwise) arising out of or relating to this Agreement and the consummation of the Transactions, or the negotiation, validity, interpretation, performance, breach or termination of this Agreement and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of Delaware, regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.

9.4 Specific Performance; Jurisdiction.

(a) Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Party, and the exercise by a Party of any one remedy shall not preclude the exercise of any other remedy. Nothing in this Agreement shall be deemed a waiver by any Party of any right to specific performance or injunctive relief. The Parties understand and agree that the covenants and agreements on each of their parts herein contained are uniquely related to the desire of the Parties and their respective Affiliates to consummate the Transactions, that the Transactions are a unique business opportunity at a unique time for each of WDC and Spinco and their respective Affiliates, and further agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with its specific terms, and further agree that, although monetary damages may be available for the breach of such covenants and agreements, monetary damages would be an inadequate remedy therefor. It is accordingly agreed that, in addition to any other remedy that may be available to it, including monetary damages, each of the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties further agrees that no Party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.4 and each Party waives any objection to the imposition of such relief or any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

(b) Each of the Parties irrevocably agrees that, subject (except in the case of any legal action or proceeding seeking specific performance) to prior compliance with Section 8.1, any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder, brought by the other Party or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the Parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement: (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 9.4; (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise); and (iii) to the fullest extent permitted by applicable Law, any claim that: (x) the suit, action or proceeding in such court is brought in an inconvenient forum; (y) the venue of such suit, action or proceeding is improper; or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts (other than by reason of, except in the case of any action or proceeding for specific performance, needing to first comply with the provisions of Section 8.1). In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including, without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals. The Parties agree that service of any court paper may be made in any manner as may be provided under the applicable Laws or court rules governing service of process in such court. The Parties agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.

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9.5 Waiver of Jury Trial. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

9.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (a) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid; (b) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; (c) if sent by email transmission prior to 6:00 p.m. recipient’s local time, upon transmission when receipt is confirmed; or (d) if sent by email transmission after 6:00 p.m. recipient’s local time, the Business Day following the date of transmission when receipt is confirmed:

(a) If to WDC:

c/o Western Digital Corporation

[Address]

Attn: [●]

Email: [●]

with a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue Suite 1400

Palo Alto, CA 94301

Attn: Thomas J. Ivey and Christopher J. Bors

Email: thomas.ivey@skadden.com and christopher.bors@skadden.com

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(b) If to Spinco:

c/o Sandisk Corporation

[Address]

Attn: [●]

Email: [●]

with a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue Suite 1400

Palo Alto, CA 94301

Attn: Thomas J. Ivey and Christopher J. Bors

Email: thomas.ivey@skadden.com and christopher.bors@skadden.com

9.7 Amendments and Waivers.

(a) This Agreement may be amended or supplemented in any and all respects and any provision of this Agreement may be waived and any such waiver shall be binding upon a Party, only if such waiver is set forth in a writing executed by such waiving Party bound thereby, and any such amendment or supplement shall be effective only if set forth in a writing executed by each of the Parties; and any such waiver, amendment or supplement shall not be applicable or have any effect except in the specific instance in which it is given. No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.

(b) Notwithstanding the foregoing, no failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have. Any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement or any such waiver of any provision of this Agreement must satisfy the conditions set forth in Section 9.7(a) and shall be effective only to the extent in such writing specifically set forth.

9.8 Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Separation Time by mutual written consent of the Parties.

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9.9 No Third-Party Beneficiaries. Except for the provisions of Section 4 with respect to indemnification of Indemnitees, which is intended to benefit and be enforceable by the Persons specified therein as Indemnitees, this Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and is not intended, and shall not be deemed, to (a) create any agreement of employment with any person, (b) confer on third parties (including any employees of the Parties and their respective Groups) any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement, or (c) otherwise create any third-party beneficiary hereto.

9.10 Assignability; Binding Effect. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any Party’s rights, interests or obligations hereunder may be assigned or delegated by any such Party, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by any Party without the prior written consent of the other Party shall be void and of no effect. Except as set forth in Section 9.9, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties and their permitted successors and assigns) any power, right, privilege or remedy of any nature whatsoever under or by reason of this Agreement.

9.11 Priority of Agreements. If there is a conflict between any provision of this Agreement and a provision in any of the Ancillary Agreements, the provision of this Agreement will control unless specifically provided otherwise in this Agreement or in the Ancillary Agreement.

9.12 Survival of Covenants. The covenants in this Agreement that by their terms are to be performed following the Separation Time will survive each of the Internal Restructuring and the Distribution and will remain in full force and effect in accordance with their terms.

9.13 Construction.

(a) For purposes of this Agreement, whenever the context requires: (i) the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include masculine and feminine genders.

(b) The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) As used in this Agreement, the words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

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(e) The measure of a period of one (1) month or year for purposes of this Agreement will be the date of the following month or year corresponding to the starting date; and, if no corresponding date exists, then the end date of such period being measured will be the next actual date of the following month or year (for example, one month following February 18 is March 18 and one month following March 31 is May 1).

(f) As used in this Agreement, the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”

(g) As used in this Agreement, the word “will” shall be deemed to have the same meaning and effect as the word “shall.”

(h) As used in this Agreement, the terms “or,” “any” or “either” are not exclusive and shall be deemed to be “and/or.”

(i) As used in this Agreement, references to “written” or “in writing” include in electronic form.

(j) As used in this Agreement, references to the “date hereof” are to the date of this Agreement.

(k) Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement.

(l) The table of contents and the section and other headings and subheadings contained in this Agreement and the Exhibits hereto are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction, meaning or interpretation of this Agreement. The preamble and the recitals set forth at the beginning of this Agreement are incorporated by reference into and made a part of this Agreement.

(m) Any payment to be made pursuant hereto shall be made in U.S. dollars and by wire transfer of immediately available funds.

(n) As used in this Agreement, references to “$” in this report are to the lawful currency of the United States of America.

9.14 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any situation in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

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9.15 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each of the Parties and delivered to the other Party, it being understood that all Parties need not sign the same counterpart. This Agreement may be executed and delivered by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by a combination of such means. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

At the request of any Party, the other Party shall re-execute original forms thereof and deliver them to the requesting Party. No Party shall raise the use of a facsimile machine or other electronic means to deliver a signature or the fact that any signature was transmitted or communicated through the use of a facsimile machine or other electronic means as a defense to the formation of a Contract, and each such Party forever waives any such defense.

9.16 Plan of Reorganization. This Agreement shall constitute a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulation Section 1.368-2(g).

10.1 Defined Terms. For purposes of this Agreement, the following terms, when utilized in a capitalized form, shall have the following meanings:

“Action” shall mean any demand, charge, claim, action, suit, counter suit, arbitration, mediation, hearing, inquiry, proceeding, audit, review, complaint, litigation or investigation, or proceeding of any nature whether administrative, civil, criminal, regulatory or otherwise, by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal, excluding any ordinary course prosecution or maintenance activities or proceedings before the U.S. Patent and Trademark Office (USPTO), U.S. Copyright Office, any successor offices or any similar Intellectual Property Rights offices or agencies throughout the world.

“Affiliate” shall mean, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such other Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise.

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“Ancillary Agreements” shall mean each of the agreements that implement the transactions contemplated by the Separation Plan (including any local business transfer agreements), the Tax Matters Agreement, the Transition Services Agreement, the Transitional Trademark License Agreement, the Intellectual Property Cross-License Agreement, the Stockholder and Registration Rights Agreement, the Employee Matters Agreement and any other agreements mutually agreed to by the Parties pursuant to Section 2.2(a). For purposes of clarity and the avoidance of doubt, Ancillary Agreements shall not include any Excluded Related Party Agreements.

“Ancillary IP Rights” shall mean, with respect to any Intellectual Property Rights: (A) the right to seek, recover and retain damages, costs, profits, injunctive relief and other remedies for any past or future infringement or misappropriation thereof, (B) the right to register, prosecute, maintain or record such Intellectual Property Rights with any Governmental Authority after the Separation Time, (C) the right to collect royalties or other payments under or on account of such Intellectual Property Rights after the Separation Time and (D) all goodwill to the extent associated with such Intellectual Property Rights, in each case, in all countries in the world.

“Assets” shall mean any and all assets, properties and rights (including goodwill), wherever located (including in the possession of vendors or other third parties or elsewhere), whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any Person, including the following: (i) all computers and other electronic data processing equipment, telecommunication equipment and data, fixtures, machinery, equipment, furniture, office equipment, motor vehicles and other transportation equipment, special and general tools, apparatus, cables, electrical devices, prototypes and models, test devices, transmitters, other miscellaneous supplies and other tangible personal property of any kind; (ii) all inventories of materials, parts, raw materials, packing materials, supplies, works-in-process, goods in transit, consigned goods and finished goods and products; (iii) all Real Property Interests; (iv) all interests in any capital stock or other equity interests of any Subsidiary or any other Person; all bonds, notes, debentures, evidences of indebtedness, puts, calls, straddles, options and other securities of any kind issued by any Subsidiary or any other Person; all loans, advances or other extensions of credit or capital contributions to any Subsidiary or any other Person, and all other investments in securities of any Person; (v) all Permits, distribution and supplier arrangements, sale and purchase agreements, joint operating agreements, license agreements, leases of personal property, open purchase orders for raw materials, supplies, parts or services, unfilled orders for the manufacture and sale of products and all other Contracts and business arrangements; (vi) all deposits, letters of credit and performance and surety bonds; (vii) all Intellectual Property Rights; (viii) all cost information, sales and pricing data, customer prospect lists, supplier records, customer, distribution and supplier lists, customer and vendor data, correspondence and lists, product literature (including historical), advertising and promotional materials, other printed or written materials and artwork; design, development, manufacturing and quality control records, procedures and files, vendor and customer drawings, formulations and specifications, quality records and reports and other books, records, ledgers, files, documents, plats, photographs, studies, surveys, reports, plans and documents, operating, production and other manuals, including corporate minute books and related stock records and financial records, in all cases whether in paper, microfilm, microfiche, computer tape or disc, magnetic tape or any other form; (ix) all prepaid expenses, including prepaid leases and prepaid rentals, trade accounts and other accounts and notes receivable (whether current or non-current); (x) all interests, rights to causes of action, lawsuits, judgments, claims, counterclaims, rights under express or implied warranties, rights of recovery and rights of setoff of any kind, demands and benefits of any Person, including all claims or rights against any Person arising from the ownership of any Asset, all rights in connection with any bids or offers, causes of action or similar rights, whether accrued or contingent; and (xi) all Governmental Approvals, and other licenses and authorizations issued by any Governmental Authority. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement, and, therefore, assets related to Taxes (including any Tax Items, Tax Attributes or rights to receive any Refunds) shall not be treated as Assets.

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“Business Day” shall mean any day, other than a Saturday, a Sunday and any day which is a legal holiday under the laws of the States of California or Delaware, or is a day on which banking institutions located in the States of California or Delaware are authorized or required by Law or other governmental action to close.

“Code” shall have the meaning set forth in the form of Tax Matters Agreement.

“Confidential Business Information” shall mean all information, data or material other than Confidential Operational Information, including: (i) earnings reports and forecasts; (ii) macro-economic reports and forecasts; (iii) business and strategic plans; (iv) general market evaluations and surveys; (v) litigation presentations and risk assessments; (vi) budgets; and (vii) financing and credit-related information.

“Confidential Information” shall mean Confidential Business Information or Confidential Operational Information concerning a Party and/or its Subsidiaries which, prior to, at or following the Separation Time, has been disclosed by a Party (in such capacity, the “Disclosing Party”) or its Subsidiaries to the other Party (in such capacity, the “Receiving Party”) or its Subsidiaries, in written, oral (including by recording), electronic or visual form, or otherwise has come into the possession of the Receiving Party, including pursuant to the access provisions of Section 5.1 or any other provision of this Agreement or any Ancillary Agreement (except to the extent that such information can be shown to have been: (i) in the public domain through no breach of confidentiality obligations by the Receiving Party or its Subsidiaries; (ii) lawfully acquired without confidentiality obligations from other sources by the Receiving Party or its Subsidiaries to which it was furnished, other than, in the case of WDC as the Receiving Party, any Confidential Information of Spinco that was acquired by WDC or any of its Subsidiaries prior to the Separation Time; (iii) independently developed by the Receiving Party or its Subsidiaries after the date hereof without reference to the Confidential Business Information or Confidential Operational Information of the Disclosing Party or its Subsidiaries and without a breach of this Agreement, other than, in the case of WDC as the Receiving Party, any Confidential Information of Spinco that was independently developed by WDC or any of its Subsidiaries prior to the Separation Time; or (iv) approved for release by written authorization of the Disclosing Party and/or the third-party owner of the disclosed information; provided, however, that in the case of clause (ii), to the Receiving Party’s knowledge, such sources did not provide such information in breach of any confidentiality obligations). Following the Separation Time, (a) all Confidential Business Information and Confidential Operational Information included in Flash Assets shall, subject to the exceptions set forth in clauses (i) to (iv) of this “Confidential Information” definition, be deemed to be Confidential Information of Spinco, (b) Spinco shall be deemed to be the Disclosing Party thereof and (c) the WDC Group shall be deemed a Receiving Party thereof, in each case, regardless of whether such information originated from or was originally disclosed by any member of the WDC Group.

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“Confidential Operational Information” shall mean all operational information, data or material including: (i) specifications, ideas and concepts for products, services and operations; (ii) quality assurance policies, procedures and specifications; (iii) customer information; (iv) Software; (v) training materials and information; and (vi) all other know-how, methodologies, procedures, techniques and Trade Secrets related to design, development and operational processes.

“Consents” shall mean any consents, waivers or approvals from, or notification requirements to, or authorizations by, any third parties.

“Contract” shall mean (i) any legally binding written or oral agreement, contract, subcontract, lease, sublease, understanding, instrument, note, option, warranty, sales order, purchase order, license, sublicense, bond, mortgage, indenture, insurance policy or commitment or undertaking of any nature, as well as, with respect to any Shared Contracts or (ii) solely as between the WDC Group and the Spinco Group, any contract (or portion of a contract allocated) resulting from the Shared Contract Transfer pursuant to Section 1.8(c), including any assignment or partial assignment (or purported assignment or partial assignment including via the letter method), replication or transfer of a Contract, but excluding any Permit and Benefit Arrangement (as defined in the Employee Matters Agreement).

“Distribution Date” shall mean, as applicable, the date selected by the WDC Board or its designee for the distribution of the shares of Spinco Common Stock to the Record Holders in connection with the Distribution as set forth in Section 3.1.

“Domain Names” shall mean all rights to Uniform Resource Locators, Web site addresses, domain names and social media accounts.

“Entity” shall mean any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization or entity.

“Environmental Laws” shall mean all Laws relating to pollution, the protection, restoration or remediation of, or prevention of harm to, the environment or natural resources or, to the extent relating to exposure to hazardous or toxic materials, substances or wastes, the protection of human health and safety.

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“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“Excluded IP” shall mean the Intellectual Property Rights listed on Schedule 10.1(b), along with the Specified Trademarks.

“Existing Credit Agreement” shall mean that certain Amended and Restated Loan Agreement dated as of January 7, 2022, as amended on December 23, 2022, June 20, 2023 and June 11, 2024 (as may be further amended, supplemented, amended and restated or otherwise modified from time to time), by and among WDC, the additional borrowers party thereto from time to time, JPMorgan Chase Bank, N.A., as Administrative Agent and Collateral Agent and certain banks and financial institutions from time to time party thereto.

“Expired” shall mean, when used with respect to any Contract, Permit or Deferred Asset, the expiration of such Contract, Permit or Deferred Asset after the end of all automatic or voluntary extensions of the term of such Contract, Permit or Deferred Asset, whether pursuant to the express terms of applicable Law, the terms of the Contract, Permit or Deferred Asset or in conformity with the historical practice of WDC or its relevant Affiliate with respect to such Contract, Permit or Deferred Asset and with respect to any deferred liability shall mean the extinguishment of such Liability. “Expiration” shall have a correlative meaning.

“Flash Business” shall mean the “Flash” operating segment of the WDC Group, as described in WDC’s Form 10-K for the fiscal year ended June 28, 2024, including the businesses of marketing, offering, selling, licensing, providing, distributing, developing, manufacturing, importing or exporting Flash Business Products.

“Flash Business Audited Financial Statements” shall mean the audited combined financial statements of the Flash Business for the three fiscal years ended June 28, 2024, June 30, 2023 and July 1, 2022, including the combined balance sheets of the Flash Business as of June 28, 2024, and June 30, 2023, and the combined statements of operations, comprehensive income (loss), cash flows and changes in parent company net investment of the Flash Business, for each of the three fiscal years ended June 28, 2024, June 30, 2023 and July 1, 2022.

“Flash Business Products” shall mean: (i) any semiconductor memory, including flash memory, MRAM, phase-change memory and ReRAM (collectively, “Semiconductor Memory”); (ii) any system or module primarily based on Semiconductor Memory; and (iii) any ancillary components, materials and software, including, but not limited to, controllers, firmware, housing, packaging and support means, to the extent incorporated into or primarily used with (i) and/or (ii).

“Foreign Investment Laws” shall mean all Laws relating to or otherwise providing a Governmental Authority with the ability or authority to review, impose limitations on, prohibit, or otherwise take action with respect to foreign investments that could impact, among other things, national security or public order.

“Governmental Approvals” shall mean any notices, reports or other filings to be made to, or any Consents, registrations, permits or authorizations to be obtained from, any Governmental Authority.

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“Governmental Authority” shall mean any federal, state, local, domestic, foreign or international court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority or self-regulatory organization.

“Group” shall mean the WDC Group or the Spinco Group, as the context requires.

“Hazardous Materials” shall mean: (i) any petrochemical or petroleum products, oil or coal ash, per-and polyfluoroalkyl substances, radioactive materials, radon gas, asbestos in any form that is or could become friable, urea formaldehyde foam insulation and transformers or other equipment that contain dielectric fluid which contains any polychlorinated biphenyls; (ii) any chemicals, materials or substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “hazardous constituents,” “restricted hazardous materials,” “extremely hazardous substances,” “toxic substances,” “contaminants,” “pollutants,” “toxic pollutants” or words of similar meaning and regulatory effect under any applicable Environmental Law; and (iii) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by, or that may result in liability under, any applicable Environmental Law.

“Indebtedness” shall mean, with respect to any Person, without duplication, all (i) unpaid principal of and accrued interest and fees on all indebtedness of such Person for borrowed money (excluding all intercompany indebtedness between or among such Person and its Subsidiaries but including any prepayment penalties, premiums, costs, breakage or other amounts payable upon the discharge thereof at the Separation Time), (ii) other indebtedness of such Person evidenced by credit agreements, notes, bonds, indentures, securities, mortgage, debt security, preferred stock (including payment-in-kind interest), debentures or other debt instruments, (iii) amounts owing as deferred purchase price for the purchase of any property or assets (excluding trade payables incurred in the ordinary course of business), and (iv) indebtedness or obligations of another Person referred to in clause (i) above guaranteed by such Person; provided that letters of credit and performance bonds issued in the ordinary course of business and capital leases shall not be Indebtedness.

“Information” shall mean all information in written, oral, electronic or other tangible or intangible forms, including information in works of authorship, documentation, studies, reports, records, books, manuals, files, data, databases, drawings, samples, graphics, illustrations, artwork, Contracts, instruments, surveys, flow charts, customer and supplier lists and names, pricing and cost information, business and marketing plans, proposals and materials, compositions, communications by or to attorneys, memos and other materials prepared by attorneys or under their direction, employee or business information, in each case, in whatever form or medium and whether or not protected or protectable under a Patent or a Copyright or embodying proprietary Intellectual Property Rights.

“Information Statement” shall mean the information statement of Spinco, included as Exhibit 99.1 to the Registration Statement, to be distributed or made available to holders of WDC Common Stock in connection with the Distribution, including any amendments or supplements thereto.

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“Intellectual Property Rights” shall mean any and all statutory and/or common law intellectual property rights throughout the world, including any of the following: (i) all rights in United States and foreign patents and utility models and applications therefor (including provisional applications) and all reissues, divisions, renewals, extensions, provisionals, reexaminations, continuations and continuations in part thereof (collectively, “Patents”); (ii) all trade secret rights and similar rights in know-how, Information or other materials (collectively, “Trade Secrets”); (iii) all registered and unregistered copyrights and all other rights corresponding thereto in any works of authorship, including Software (collectively, “Copyrights”); (iv) all registered, applied-for and unregistered trademark rights and similar rights in trade names, logos, trade dress, trademarks and service marks (collectively, “Trademarks”); (v) all design rights, maskwork rights, rights in databases and data collections (including knowledge databases, customer lists and customer databases); (vi) all rights to Uniform Resource Locators, Web site addresses, domain names and social media accounts; (vii) any similar, corresponding or equivalent rights to any of the foregoing; (viii) all intangible rights in Technology; and (ix) any registrations and renewals of or applications to register any of the foregoing.

“Intercompany Account” shall mean any receivable, payable or loan between any member of the WDC Group, on the one hand, and any member of the Spinco Group, on the other hand, that exists prior to the Distribution Date except for any such receivable, payable or loan that arises pursuant to this Agreement or any Ancillary Agreement.

“Internal Restructuring” shall mean the corporate restructuring steps contemplated by the Separation Plan, including: (i) the Spinco Contribution; (ii) the transfer, directly or indirectly, of the Excluded Assets and Excluded Liabilities, in each case, relating to, arising out of or resulting from the transactions contemplated by this Agreement (including as set forth in Section 1.3); and (iii) each of the transactions contemplated by Section 1.7.

“IP Contracts” shall mean Contracts under which a party thereto grants or is granted an assignment, license, non-assertion covenant, authorization, immunization or similar rights under or with respect to Intellectual Property Rights, Information or Technology, excluding any Contract where all assignments, licenses, non-assertion covenants, authorizations, immunizations or similar rights under or with respect to Intellectual Property Rights, Information or Technology in such Contract are incidental and immaterial to the primary purpose of such Contract.

“Law” shall mean any statute, law (including common law), ordinance, regulation, rule, code or other legally enforceable requirement of, or Order issued by, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of a Governmental Authority.

“Liabilities” shall mean all debts, liabilities, guarantees, assurances, commitments and obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including whether arising out of any Law or Order, or any Contract or tort based on negligence or strict liability) and whether or not the same would be required by generally accepted principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto. Except as otherwise specifically set forth herein or in the Tax Matters Agreement, the rights and obligations of the Parties with respect to Taxes shall be governed by the Tax Matters Agreement and, therefore, Taxes shall not be treated as Liabilities governed by this Agreement.

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“Lien” shall mean, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, license, encumbrance, claim, option, pledge, title defect, preemptive right or limitation on transfer (other than such a limitation arising under federal, state or foreign securities Laws) in respect of such property or asset.

“Losses” shall mean Liabilities, claims, damages, penalties, judgments, assessments, losses, costs, expenses (including reasonable attorneys’ and consultants’ fees and expenses) and interest, in any case, whether arising under strict liability or otherwise; provided, however, that any portion of such Losses that are punitive, exemplary, unforeseeable or speculative shall be indemnifiable only if such Losses have been awarded by a court of competent jurisdiction and were determined to have been proximately caused by the Indemnifying Party. For purposes of clarity, the fact that a Third-Party Claim includes a request for punitive, exemplary, unforeseeable or speculative damages is not a basis for refusing an Indemnitee’s request that an Indemnifying Party defend such claim.

“Milpitas Sites” shall mean the real property located at (i) 901 SanDisk Drive, Milpitas, California 95035, USA, (ii) 951 SanDisk Drive, Milpitas, California 95035, USA, (iii) 1001 SanDisk Drive, Milpitas, California 95035, USA, (iv) 1101 SanDisk Drive, Milpitas, California 95035, USA and (v) 1051 SanDisk Drive, Milpitas, California 95035, USA.

“Non-Personnel IT Assets” shall mean, other than Personnel IT Assets, all (i) information technology Systems, and (ii) documentation, reference, resource and training materials to the extent relating thereto; provided that, notwithstanding the foregoing, Non-Personnel IT Assets shall exclude Intellectual Property Rights.

“Object Code” shall mean Software in binary, object or executable form that is intended to be directly executable by a computer without the intervening steps of compilation or assembly.

“Order” shall mean any: (i) order, judgment, injunction, edict, decree, ruling, pronouncement, determination, decision, opinion, verdict, sentence, subpoena, writ or award issued, made, entered, rendered or otherwise put into effect by or under the authority of any court, administrative agency or other Governmental Authority or any arbitrator or arbitration panel; or (ii) Contract with any Governmental Authority entered into in connection with any Action.

“Permit” shall mean any franchise, permit, certification, license, easement, servitude, variance, right, exemption, approval, consent, waiver, registration or other authorization of a Governmental Authority issued under or with respect to applicable Laws or Orders.

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“Permitted Liens” shall mean: (i) mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s or other like Liens arising or incurred in the ordinary course of business consistent with past practice, which do not and would not reasonably be expected to, individually or in the aggregate, materially interfere with the present use of assets or property subject thereto or affected thereby; (ii) Liens for Taxes, assessments and other governmental charges and levies that are not due and payable or that are being contested in good faith by appropriate proceedings and for which an adequate reserve has been established; (iii) Liens reflected in the [●] Balance Sheet; (iv) defects or irregularities in title, easements, rights-of-way, covenants, restrictions, and other, similar matters that would not, individually or in the aggregate, reasonably be expected to materially impair the value of or continued use and operation of the assets to which they relate or are being contested; (v) Liens imposed or promulgated by operation of applicable Law with respect to real property and improvements, including zoning regulations, permits, licenses, utility easements, rights of way and similar Liens imposed or promulgated by any Governmental Authority; (vi) statutory liens for amounts not yet delinquent to secure obligations to landlords, lessors or renters under leases or rental agreements that have not been breached; (vii) non-exclusive licenses, immunities from suit, or covenants not to assert granted under or with respect to any Intellectual Property Rights; (viii) pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by applicable Law; (ix) other Liens arising in the ordinary course of business and not incurred in connection with the borrowing of money which do not, individually or in the aggregate, materially interfere with the present use of assets or property subject thereto or affected thereby; (x) Liens on WDC, Spinco and each of their respective Subsidiaries, or on the assets or equity interests of WDC, Spinco and each of their Subsidiaries, that will be released in connection with or after giving effect to the Distribution or the Separation Time; and (xi) Liens granted under or in connection with the Existing Credit Agreement.

“Person” shall mean any individual, Entity or Governmental Authority.

“Personnel IT Assets” shall mean (i) personal computers (including laptop computers but excluding servers), telephones (including cell phones and smartphones) and personal telephone equipment (including headsets), and (ii) computer monitors, docking stations, and printers [assigned to and primarily used by remote employees]; provided that, notwithstanding the foregoing, Personnel IT Assets shall exclude Intellectual Property Rights.

“Platforms Products” shall mean:

(i) any storage system having one or more hard disk drive (HDD) slots;

(ii) any storage system having two or more solid state drive (SSD) slots, and if included, any SSD installed with and sold with such a system;

(iii) any standalone ASIC or semiconductor IC core that provides PCIe-to-NVMe-oF protocol bridge functionality;

(iv) any controller or controller card that encompasses clause (iii) above;

(v) any storage device (except for a standalone SSD) or system (except for one having a single SSD slot) that encompasses clauses (iii) or (iv) above;

(vi) any storage device that is attached to a controller card that encompasses clause (iii) above; and

(vii) any standalone SSD for post-sale installation into a storage system in clauses (i) or (ii) above that was previously sold by WDC.

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“Real Property Interests” shall mean all interests in real property of whatever nature, including easements and servitudes, whether as fee owner, owner or holder of a Lien, lessor, sublessor, lessee, sublessee or otherwise.

“Real Property Transfer Obligations” shall mean any Liabilities and costs (including any costs associated with any required filings, investigation, remediation or other responsive action) arising from or relating to compliance or non-compliance with Environmental Laws with real property transfer requirements and any regulations thereunder, in each case as a result of the transactions contemplated by this Agreement.

“Record Date” shall mean 1:00 p.m. Pacific Time on the date to be determined by the WDC Board as the record date for determining stockholders of WDC entitled to receive shares of Spinco Common Stock in the Distribution.

“Record Holders” shall mean the holders of record of shares of WDC Common Stock as of the close of business on the Record Date.

“Refund” shall have the meaning set forth in the form of Tax Matters Agreement.

“Registration Statement” shall mean the registration statement on Form 10 of Spinco (which includes the Information Statement) relating to the registration under Section 12(b) of the Exchange Act of Spinco Common Stock, including any amendments or supplements thereto.

“Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into or migration through the indoor or outdoor environment (including surface water, groundwater, land surface or subsurface strata or ambient air), including the abandonment or discarding of barrels, containers and other closed receptacles containing any hazardous substance, pollutant or contaminant.

“Representatives” shall mean with respect to any Person, such Person’s officers, employees, accountants, consultants, legal counsel, financial advisors, agents, directors and other representatives.

“SEC” shall mean the U.S. Securities and Exchange Commission.

“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Shared Contract” shall mean any shared written Contract (excluding Spinco Leases, purchase orders and insurance policies) to which one or more members of the WDC Group and/or the Spinco Group is a party relating to the Flash Business and that also relates to any other business or business function of WDC or its Subsidiaries, which Shared Contracts shall be subject to the rights and obligations of the Parties set forth in Section 1.8(c). For the avoidance of doubt, upon a Shared Contract Transfer pursuant to Section 1.8(c), the resulting Contract (or portion of a contract allocated thereunder) shall no longer be a Shared Contract.

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“Shared Liabilities” shall mean any Liabilities: (i) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in (A) the Registration Statement (including the Information Statement), or (B) any other disclosure document primarily relating to the Transaction that is disseminated publicly on or prior to the Distribution Date or filed on or prior to the Distribution Date with either the SEC or other Governmental Authority; or (ii) arising out of or based upon any omission or alleged omission to state a material fact required to be stated in any of the documents within the purview of clause (i) or necessary to make the statements therein not misleading.

“Software” shall mean any and all (i) computer programs, including any and all software implementations of algorithms, firmware, models and methodologies, whether in Source Code or Object Code form, and (ii) databases and compilations, including any and all data and collections of data, whether machine readable or otherwise.

“Source Code” shall mean Software comprising computer programming code Software in human readable form, excluding Object Code.

“Specified Trademarks” shall mean the registered Trademarks listed on Schedule 10.1(e), including all right, title and interest therein and all goodwill associated therewith.

“Spinco Cash” shall mean the aggregate amount of cash and cash equivalents held by Spinco and its Subsidiaries as of immediately prior to the Separation Time, including the amount of any checks and drafts (i) received by Spinco and its Subsidiaries but not yet deposited, and (ii) deposited for the account of Spinco or any of its Subsidiaries but not yet cleared.

“Spinco Cash Amount” shall mean one billion dollars ($1,000,000,000.00).

“Spinco Common Stock” shall mean the Common Stock, par value $0.01 per share, of Spinco.

“Spinco Contribution” shall mean the transfer, directly or indirectly, of the Flash Assets from the WDC Group to the Spinco Group and the assumption of the Flash Liabilities by the Spinco Group, in each case, relating to, arising out of or resulting from the transactions contemplated by this Agreement (including as set forth in Section 1.1, Section 1.2, Section 1.8(c) and Section 1.9).

“Spinco Debt” shall mean, without duplication, as of immediately prior to the Separation Time, any unpaid principal of and accrued interest and fees on all indebtedness of Spinco and its Subsidiaries for borrowed money, not including (i) intercompany indebtedness between or among Spinco and its Subsidiaries (but including any prepayment penalties, premiums, costs, breakage or other amounts payable upon the discharge thereof at the Separation Time) and (ii) Spinco Leases.

“Spinco Dividend” shall mean the cash to be paid by Spinco to WDC in exchange for the Spinco Contribution in an amount calculated pursuant to Section 3.4.

“Spinco Group” shall mean Spinco, each of the Spinco Subs and any legal predecessors thereto.

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“Spinco Guarantees” shall mean arrangements in which guaranties (including guaranties of performance or payment under Contracts, commitments, Liabilities and Permits), letters of credit or other credit or credit support arrangements, including bid bonds, advance payment bonds, performance bonds, payment bonds, retention and/or warranty bonds or other bonds or similar instruments, were or are issued, entered into or otherwise put in place by any Person to support or facilitate, or otherwise in respect of, the obligations of any member of the Spinco Group or the Flash Business or Contracts, commitments, Liabilities and Permits of any member of the Spinco Group or the Flash Business.

“Spinco Indemnitees” shall mean: (i) Spinco and each other member of the Spinco Group; and (ii) all Persons who are or have been stockholders, directors, partners, managers, managing members, officers, agents or employees of any member of the Spinco Group (in each case, in their respective capacities as such) (excluding any shareholder of Spinco), together with their respective heirs, executors, administrators, successors and assigns..

“Spinco IP” shall mean all Intellectual Property Rights (including Intellectual Property Rights in Source Code for Software) owned by or licensed to WDC or any of its Affiliates (including Spinco and the Spinco Subs) that are primarily used in, or primarily held for use in, the Flash Business, including (i) the Trademarks, Domain Names and Copyrights listed on Schedule 10.1(d) and (ii) the Spinco Patents, in each case, excluding the Excluded IP.

“Spinco Leased Real Property” shall mean all real property leased, subleased, licensed or otherwise occupied by or from WDC or any of its Subsidiaries primarily for the operation of the Flash Business, the address of which is identified on Schedule 1.5(a)(i)(B).

“Spinco Leases” shall mean all leases, licenses, subleases and occupancy agreements (whether written or oral), including any amendments, modifications, supplements and lease guaranties thereto, identified on Schedule 1.5(a)(i)(B) pursuant to which the Spinco Leased Real Property is leased, subleased, licensed or otherwise occupied by or from WDC or its Subsidiaries primarily for the operation of the Flash Business.

“Spinco Owned Real Property” shall mean all real property owned (or, in the case of non-U.S. real property, the foreign equivalent of ownership in the applicable jurisdiction) by WDC or its Subsidiaries, together with all buildings and other structures, facilities or improvements located thereon and all easements, licenses, rights and appurtenances of WDC or its Subsidiaries relating to the foregoing, that is intended to be conveyed to Spinco or any of its Subsidiaries by WDC or its Subsidiaries pursuant to this Agreement as set forth on Schedule 1.5(a)(i)(A).

“Spinco Patents” shall mean (i) all Patents listed on Schedule 10.1(c) and (ii) (A) any Patent that claims (or is entitled to validly claim) priority from any of the foregoing Patents; (B) any Patent that is a continuation, continuation in part, divisional or reissue of any of the foregoing Patents, or that is linked to any of the foregoing Patents by a terminal disclaimer; and (C) any foreign counterpart of any of the foregoing Patents.

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“Subsidiary” shall mean that an Entity shall be deemed to be a “Subsidiary” of another Person if such Person directly or indirectly owns, beneficially or of record: (i) an amount of voting securities or other interests in such Entity that is sufficient to enable such Person to elect at least a majority of the members of such Entity’s board of directors or other governing body; or (ii) at least fifty percent (50%) of the outstanding equity or financial interests of such Entity; provided that for all purposes of this Agreement, none of Flash Partners Ltd., Flash Alliance Ltd. or Flash Forward Ltd. shall be considered a Subsidiary of Spinco or a Subsidiary of WDC.

“Systems” shall mean all hardware, networks, electronics, platforms, servers, interfaces, websites and related information technology systems and services, computer systems and equipment, public Internet protocol address blocks, telecommunications equipment, information technology infrastructure, network devices and equipment (including routers, wireless access points, switches and hubs), fiber and backbone cabling and other telecommunications wiring, demarcation points and rooms, computer rooms and telecommunications closets, including any of the foregoing that are outsourced.

“Tax” or “Taxes” shall have the meaning set forth in the form of Tax Matters Agreement.

“Tax Attribute” shall have the meaning set forth in the form of Tax Matters Agreement.

“Tax Contest” shall have the meaning set forth in the form of Tax Matters Agreement.

“Tax Item” shall have the meaning set forth in the form of Tax Matters Agreement.

“Tax Records” shall have the meaning set forth in the form of Tax Matters Agreement.

“Tax Return” shall have the meaning set forth in the form of Tax Matters Agreement.

“Taxing Authority” shall have the meaning set forth in the form of Tax Matters Agreement.

“Technology” shall mean all tangible items constituting, disclosing or embodying any or all of the following: inventions, works, discoveries, innovations, know-how, ideas, research and development, formulas, algorithms, processes, techniques, designs, design rules, concepts, methods, specifications, algorithms, procedures, protocols, routines, register-transfer levels, netlists, Verilog files, simulations, emulation and simulation reports, test vectors and integrated circuits and integrated circuit masks, mask works, Software, blueprints, diagrams, models, prototypes and other forms of technology and/or scientific, technical or logic information or materials, in each case, whether or not protected or protectable under a Patent or a Copyright or embodying proprietary Intellectual Property Rights; provided that, notwithstanding the foregoing, Technology shall exclude Intellectual Property Rights.

“Tools” shall mean all machinery, equipment, tools, wires and vehicles; provided that, notwithstanding the foregoing, Tools shall exclude Intellectual Property Rights.

“Transactions” shall mean the Internal Restructuring, the Distribution, any Subsequent Distribution and the other transactions contemplated by this Agreement, the Separation Plan and the Ancillary Agreements.

“WDC Group” shall mean WDC, each of its Subsidiaries and any legal predecessors thereto, but excluding any member of the Spinco Group.

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“WDC Guarantees” shall mean arrangements in which guaranties (including guaranties of performance or payment under Contracts, commitments, Liabilities and Permits), letters of credit or other credit or credit support arrangements, including bid bonds, advance payment bonds, performance bonds, payment bonds, retention and/or warranty bonds or other bonds or similar instruments, were or are issued, entered into or otherwise put in place by any Person to support or facilitate, or otherwise in respect of, the obligations of any member of the WDC Group or any business (other than the Flash Business) of the WDC Group or Contracts, commitments, Liabilities and Permits of any member of the WDC Group or any business (other than the Flash Business) of the WDC Group.

“WDC Indemnitees” shall mean WDC, each member of the WDC Group, and all Persons who are or have been stockholders, directors, partners, managers, managing members, officers, agents or employees of any member of the WDC Group (in each case, in their respective capacities as such) (excluding any shareholder of WDC), together with their respective heirs, executors, administrators, successors and assigns.

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10.2 Other Defined Terms. In addition, each of the following terms shall have the meaning given to such term in the applicable Section of this Agreement listed opposite such term:

[Signature Page Follows]

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

[SIGNATURE PAGE TO SEPARATION AND DISTRIBUTION AGREEMENT]

Exhibit 3.1

FORM OF

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION OF

SANDISK CORPORATION

ARTICLE I

NAME OF CORPORATION

The name of this corporation is:

Sandisk Corporation

ARTICLE II

REGISTERED OFFICE

The address of the registered office of this corporation in the State of Delaware is c/o 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808, and the name of its registered agent at that address is Corporation Service Company.

ARTICLE III

PURPOSE

The purpose of this corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (as amended from time to time, the “DGCL”).

ARTICLE IV

AUTHORIZED CAPITAL STOCK

This corporation shall be authorized to issue two classes of shares of stock to be designated, respectively, “Preferred Stock” and “Common Stock”; the total number of shares which this corporation shall have authority to issue is [•] ([•]); the total number of shares of Preferred Stock shall be [•] ([•]) and each such share shall have a par value of one cent ($0.01); and the total number of shares of Common Stock shall be [•] ([•]) and each such share shall have a par value of one cent ($0.01).

The shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby vested with authority to fix by resolution or resolutions the designations and the powers (including full, limited or no voting powers), preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without limitation the dividend rate, conversion rights, redemption price and liquidation preference, of any series of shares of Preferred Stock, and to fix the number of shares constituting any such series, and to increase or decrease the number of shares of any such series (but not below the number of shares thereof then outstanding). In case the number of shares of any such series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution or resolutions originally fixing the number of shares of such series.

ARTICLE V

BOARD POWER REGARDING BYLAWS

In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, repeal, alter, amend and rescind the bylaws of this corporation (as may be amended, restated or amended and restated from time to time, the “Bylaws”).

ARTICLE VI

MANAGEMENT OF BUSINESS; AUTHORIZATION

The business and affairs of this corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by this corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate of Incorporation and the Bylaws; provided, however, that no Bylaws hereafter adopted, amended or repealed by the stockholders shall invalidate any prior act of the directors that would have been valid if such Bylaws had not been so adopted, amended or repealed.

ARTICLE VII

ELECTION OF DIRECTORS

The number of directors constituting the Board of Directors shall be as from time to time fixed by, or in the manner provided in, the Bylaws. Elections of directors need not be by written ballot unless the Bylaws shall so provide.

ARTICLE VIII

LIMITATION OF DIRECTOR AND OFFICER LIABILITY

To the fullest extent permitted by the DGCL as the same exists or may hereafter be amended, a director or officer of this corporation shall not be personally liable to this corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer. No amendment to, or modification or repeal of, this Article VIII shall adversely affect any right or protection of a director or officer of this corporation existing hereunder with respect to any state of facts existing or act or omission occurring, or any cause of action, suit or claim that, but for this Article VIII, would accrue or arise, prior to such amendment, modification or repeal. If the DGCL is amended after this Amended and Restated Certificate of Incorporation is filed with the Secretary of the State of Delaware to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of this corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

ARTICLE IX

NO ACTIONS BY WRITTEN CONSENT OF STOCKHOLDERS

No action required to be taken or which may be taken at any annual or special meeting of stockholders of this corporation may be taken without a meeting, and the power of stockholders to consent in writing without a meeting to the taking of any action is specifically denied.

ARTICLE X

STOCKHOLDER MEETINGS

Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books and records of this corporation may be kept (subject to any provision contained in the DGCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws.

ARTICLE XI

CORPORATE POWER

This corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred on stockholders herein are granted subject to this reservation.

ARTICLE XII

FORUM SELECTION

Unless this corporation consents in writing to the selection of an alternative forum: (a) the following actions shall, to the fullest extent permitted by law, be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, the federal district court of the State of Delaware: (i) any derivative action or proceeding brought on behalf of this corporation; (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of this corporation to this corporation or this corporation’s stockholders; (iii) any action asserting a claim arising pursuant to any provision of the DGCL, this Amended and Restated Certificate of Incorporation or the Bylaws (as either may be amended or restated) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware; or (iv) any action asserting a claim governed by the internal affairs doctrine of the law of the State of Delaware; and (b) the federal district courts of the United States shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of this corporation shall be deemed to have notice of and consented to the provisions of this Article XIII.

ARTICLE XIII

SEVERABILITY

If any provision or provisions of this Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the fullest extent possible, the provisions of this Amended

and Restated Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit this corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service to or for the benefit of this corporation to the fullest extent permitted by law.

Exhibit 3.2

FORM OF

SANDISK CORPORATION

(a Delaware corporation)

AMENDED AND RESTATED BYLAWS

(As Adopted on [•])

ARTICLE I

Offices

1.1 Registered Office. The registered office of Sandisk Corporation (this “Corporation”) in the State of Delaware shall be at 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808, and the name of the registered agent in charge thereof shall be Corporation Service Company.

1.2 Principal Office. The principal office for the transaction of the business of this Corporation shall be 951 Sandisk Drive, Milpitas, California 95035. The Board of Directors (the “Board”) is hereby granted full power and authority to change said principal office from one location to another.

1.3 Other Offices. This Corporation may also have such other offices at such other places, either within or without the State of Delaware, as the Board may from time to time determine or as the business of this Corporation may require.

ARTICLE II

Meetings Of Stockholders

2.1 Annual Meetings. If required by applicable law, annual meetings of the stockholders of this Corporation shall be held for the purpose of electing directors and for the transaction of such proper business as may come before such meetings.

2.2 Special Meetings. Subject to the rights of the holders of any series of Preferred Stock (as defined in the certificate of incorporation of this Corporation, the “Certificate of Incorporation”), and to the requirements of applicable law, special meetings of the stockholders may be called at any time by the Board, the Board Chair or the Chief Executive Officer.

2.3 Place of Meetings. All meetings of the stockholders shall be held at such time, date and place, if any, within or without the State of Delaware, as shall be designated from time to time by the Board and stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication. This Corporation may postpone, reschedule or cancel any meeting of stockholders previously scheduled by the Board.

2.4 Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a notice of the meeting in the form of a writing or electronic transmission shall be given that shall state the place, if any, the date and time of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting.

Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by this Corporation under any provision of the General Corporation Law of the State of Delaware (the “General Corporation Law”), these Bylaws or the Certificate of Incorporation may be given in writing directed to the stockholder’s mailing address (or by electronic transmission directed to the stockholder’s electronic mail address, as applicable) as it appears on the records of this Corporation. Notice shall be given (i) if mailed, when deposited in the United States mail, postage prepaid, (ii) if delivered by courier service, the earlier of when the notice is received or left at the stockholder’s address, or (iii) if given by electronic mail, when directed to such stockholder’s electronic mail address (unless the stockholder has notified this Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by the General Corporation Law to be given by electronic transmission). A notice by electronic mail must include a prominent legend that the communication is an important notice regarding this Corporation. A notice by electronic mail will include any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or agent of this Corporation who is available to assist with accessing such files or information. Any notice to stockholders given by this Corporation under any provision of the General Corporation Law, these Bylaws or the Certificate of Incorporation provided by means of electronic transmission (other than any such notice given by electronic mail) may only be given in a form consented to by such stockholder, and any such notice by such means of electronic transmission shall be deemed to be given as provided by the General Corporation Law.

The terms “electronic mail,” “electronic mail address,” “electronic signature” and “electronic transmission” as used herein shall have the meanings ascribed thereto in the General Corporation Law.

2.5 Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time for any reason, whether or not a quorum is present, to reconvene at the same or some other place, if any, by either (i) the chair of the meeting or (ii) a majority in voting power of the shares of this Corporation which are present in person or by proxy and entitled to vote on the subject matter. Notice need not be given of any such adjourned meeting if the time and place, if any, or means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are provided in accordance with the General Corporation Law. At the adjourned meeting at which a quorum shall be present or represented, this Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.

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2.6 Quorum. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the presence in person or by proxy of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum for the transaction of business thereat. In the absence of a quorum, then either (i) the chair of the meeting or (ii) a majority in voting power of the stockholders present in person or by proxy and entitled to vote on the subject matter, shall have power to adjourn the meeting from time to time in the manner provided in Section 2.5 of these Bylaws until a quorum shall be present or represented.

2.7 Voting.

(a) Except as otherwise provided by or pursuant to law or the provisions of the Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question and which shall have been held by and registered in the name of the stockholder on the books of this Corporation on the date fixed pursuant to Section 2.10 of these Bylaws as the record date for the determination of stockholders entitled to notice of and to vote at a meeting.

(b) Shares of its own stock belonging to this Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by this Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Persons holding stock of this Corporation in a fiduciary capacity shall be entitled to vote such stock. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of this Corporation the pledgor shall have expressly empowered the pledgee to vote on the subject matter. Stock having voting power that is held of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants in common, tenants by entirety or otherwise, or with respect to which two or more persons have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law.

(c) Any such voting rights may be exercised by the stockholder entitled thereto in person or by the stockholder’s proxy; provided, however, that no proxy shall be voted or acted upon after three years from its date unless said proxy shall provide for a longer period. The authorization of a person to act as proxy may be documented, signed and delivered in accordance with Section 116 of the General Corporation Law, provided that such authorization shall set forth, or be delivered with, information enabling this Corporation to determine, the identity of the stockholder granting such authorization. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. The attendance at any meeting of a stockholder who may theretofore have given a proxy which is not irrevocable shall not have the effect of revoking the same, unless the stockholder shall attend the meeting and vote in person or deliver to the Secretary prior to the voting of the proxy a revocation of the proxy or a new proxy bearing a later date. At any meeting of the stockholders at which a quorum is present all matters, except as otherwise provided in the Certificate of Incorporation, these Bylaws, the rules or regulations of any stock exchange applicable to this Corporation, or applicable law or pursuant to any regulation applicable to this Corporation or its securities, shall be decided by the vote of the holders of a majority in voting power of the shares present in person or by proxy and entitled to vote on the subject matter. The vote at any meeting of the stockholders on any question need not be by written ballot, unless so directed by the chair of the meeting. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by his or her proxy, if there be such proxy, and it shall state the number of shares voted.

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2.8 List of Stockholders. This Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days ending on the day prior to the meeting date (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting, or (b) during ordinary business hours at the principal office of this Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then such list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.8 or to vote in person or by proxy at any meeting of stockholders.

2.9 Inspector of Elections. This Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of this Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. This Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector is so appointed or designated or any inspector so appointed or designated is unable to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector prescribed by applicable law with strict impartiality and according to the best of his or her ability. The inspector may appoint or retain other persons or entities to assist the inspector in the performance of the duties of inspector. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of this Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of this Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of this Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of this Corporation, the inspectors may consider such information as is permitted by applicable law. No person who is a candidate for an office at an election may serve as an inspector at such election.

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2.10 Fixing Date for Determination of Stockholder of Record. In order that this Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any other change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date: (1) in the case of determination of stockholders entitled to vote at any meeting of stockholders or adjournment thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting; and (2) in the case of any other action, shall not be more than sixty (60) days prior to such other action. If no record date is fixed: (1) the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (2) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

2.11 Stockholder Proposals and Nominations.

(a) Annual Meetings of Stockholders.

(i) Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made at an annual meeting of stockholders only (A) pursuant to this Corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board or any committee thereof, which the Board has authorized to do so, or (C) by any stockholder of this Corporation who was a stockholder of record of this Corporation at the time the notice provided for in this Section 2.11 or Section 2.14 is delivered to the Secretary of this Corporation, who is entitled to vote at the meeting and complies with the notice procedures set forth in this Section 2.11 or Section 2.14, as applicable, and to the extent that Rule 14a-19 under the Exchange Act (as defined below) applies, has complied with Rule 14a-19 under the Exchange Act. Subject to Section 2.11(a)(iv) and except as otherwise required by law, clause (C) of this Section 2.11(a) shall be the exclusive means for a stockholder to make nominations or propose other business (other than matters properly brought pursuant to applicable provisions of federal law, including the Securities Exchange Act of 1934 (as amended from time to time, the “Exchange Act”)) and the rules and regulations of the Securities and Exchange Commission thereunder before an annual meeting of stockholders. The number of nominees a stockholder may nominate for election at an annual meeting of stockholders shall not exceed the number of directors to be elected at such annual meeting.

(ii) Except as otherwise required by law, for nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of Section 2.11(a)(i), the stockholder must have given timely notice thereof in writing to the Secretary of this Corporation with the information contemplated by this Section 2.11(a)(ii) including, where applicable, delivery to this Corporation of timely and completed questionnaires as contemplated by this Section 2.11(a)(ii), and any such proposed business other than the nominations of persons for election to the Board must be a proper matter for stockholder action under the General Corporation Law. To be timely, a stockholder’s

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notice shall be delivered to the Secretary at the principal office of this Corporation on a date not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting (provided, however, that in the event that there was no annual meeting in the prior year or the date of the annual meeting is more than thirty (30) days before or after such anniversary date of the prior year’s annual meeting, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by this Corporation). In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. For the avoidance of doubt, a stockholder shall not be entitled to make additional or substitute nominations following the expiration of the time periods set forth in these Bylaws. Such stockholder’s notice shall set forth (A) (x) as to each person whom the stockholder proposes to nominate for election or reelection as a director: (1) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, (2) such person’s written consent to being named as a nominee in any proxy statement relating to the annual meeting and to serving as a director if elected, and (3) include a completed and signed questionnaire, representation and agreement required by Section 2.11(c) of these Bylaws; and (y) a description of all direct and indirect compensation and other material monetary arrangements, agreements or understandings during the past three (3) years, and any other material relationship, if any, between or concerning such stockholder, any stockholder and the beneficial owner or any of their respective affiliates or associates, on the one hand, and the proposed nominee or any of his or her affiliates or associates, on the other hand; (B) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and (C) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (1) the name and address of such stockholder, as they appear on this Corporation’s books, and of such beneficial owner, (2) the class (and, if applicable, series) and number of shares of capital stock of this Corporation which are owned beneficially and of record by such stockholder and such beneficial owner as of the date of the notice, and a representation that the stockholder will notify this Corporation in writing within five (5) business days after the record date for such meeting of the class (and, if applicable, series) and number of shares of capital stock of this Corporation owned of record by the stockholder and such beneficial owner as of the record date for the meeting, (3) a description of any agreement, arrangement or understanding, including without limitation any agreements that would be required to be disclosed pursuant to Item 5 or Item

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6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D is applicable to the stockholder or beneficial owner), with respect to the nomination or proposal between or among such stockholder and/or such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing (including, in the case of a nomination, the nominee), and a representation that the stockholder will notify this Corporation in writing within five (5) business days after the record date for such meeting of any such agreement, arrangement or understanding in effect as of the record date for the meeting, (4) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) involving such stockholder or beneficial owner that is in effect as of the date of the stockholder’s notice, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of this Corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit from share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, with respect to securities of this Corporation, or which provides, directly or indirectly, the opportunity to profit or share in any profit derived from any decrease in the price or value of the shares of capital stock of this Corporation, and the class (and, if applicable, series) and number of shares of this Corporation’s capital stock that relate to such agreements, arrangements or understandings and a representation that the stockholder will notify this Corporation in writing within five (5) business days after the record date for such meeting of any such agreement, arrangement or understanding of this nature in effect as of the record date for the meeting, (5) a description of any proxy (other than a revocable proxy or consent given in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), agreement, arrangement, understanding or relationship in effect as of the date of the notice pursuant to which such stockholder or such beneficial owner has or shares a right to vote or direct any third party to vote any shares of capital stock of this Corporation and a representation that the stockholder will notify this Corporation in writing within five (5) business days after the record date for such meeting of any proxy, agreement, arrangement, understanding or relationship of this nature in effect as of the record date for the meeting, (6) a representation that the stockholder is a holder of record of stock of this Corporation entitled to vote at such meeting, will continue to be a stockholder of record of this Corporation entitled to vote at such meeting through the date of such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (7) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends, (x) with respect to a proposal of business other than a nomination, to deliver a proxy statement and/or form of proxy to holders of at least the percentage of this Corporation’s outstanding voting stock required to approve or adopt the proposal or, (y) with respect to a nomination, to solicit proxies in support of director nominees other than persons nominated by or at the direction of the Board or any committee thereof from holders representing at least 67% of the voting power of the shares entitled to vote in the election of directors, (8) any direct or indirect material legal, economic or financial interest of the stockholder or any beneficial owner in the outcome of any vote to be taken at any annual or special meeting of stockholders of this Corporation or any other entity with respect to any matter that is substantially related,

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directly or indirectly, to any nomination proposed by any stockholder pursuant to this Section 2.11 and (9) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder. This Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of this Corporation. A stockholder shall further update and supplement its notice of any nomination to be brought before a meeting, if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.11(a)(ii) shall be true and correct (i) as of the record date for the meeting and (ii) as of the date that is ten (10) business days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof. Such update and supplement shall be delivered to the Secretary of this Corporation not later than three (3) business days after the later of the record date or the date notice of the record date is first publicly announced (in the case of the update and supplement required to be made as of the record date for the meeting) and not later than seven (7) business days prior to the date for the meeting, if practicable (or, if not practicable, on the first practicable date prior to the meeting), or any adjournment, recess, rescheduling or postponement thereof (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment, recess, rescheduling or postponement thereof); provided, however, that this Corporation shall not be required to include in its proxy materials any successor, substitute or replacement nominee for director if a stockholder’s notice is not timely pursuant to this Section 2.11(a)(ii) with respect to such successor, substitute or replacement nominee for director. For the avoidance of doubt, any information provided in such update or supplement shall not be deemed to cure any deficiencies in a notice previously delivered pursuant to this Section 2.11(a)(ii) and shall not extend the time period for delivery of notice pursuant to this Section 2.11(a)(ii). If a stockholder giving notice fails to provide such update or supplement within the required time period, the information as to which such update or supplement relates may be deemed not to have been provided in accordance with this Section 2.11(a)(ii). The information required to be included in a notice pursuant to this Section 2.11(a)(ii) shall not include any ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is directed to prepare and submit the notice required by this Section 2.11(a)(ii) on behalf of a beneficial owner of the shares held of record by such broker, dealer, commercial bank, trust company or other nominee and who is not otherwise affiliated or associated with such beneficial owner.

(iii) Subject to the Certificate of Incorporation, Section 2.11(a)(iv) and applicable law, only persons nominated in accordance with procedures stated in this Section 2.11 shall be eligible for election as and to serve as members of the Board and the only business that shall be conducted at an annual meeting of stockholders is the business that has been brought before the meeting in accordance with the procedures set forth in this Section 2.11. The chair of the meeting shall have the power and the duty to determine whether a nomination or any proposal has been made according to the procedures stated in this Section 2.11 and, if any nomination or proposal does not comply with this Section 2.11, unless otherwise required by law, the nomination or proposal shall be disregarded.

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(iv) All provisions of this Section 2.11 are subject to, and nothing in this Section 2.11 shall in any way limit the exercise, or the method or timing of the exercise of, the rights of any person granted by this Corporation to nominate directors, which rights may be exercised without compliance with the provisions of this Section 2.11.

(v) Without limiting any other provisions and requirements of this Section 2.11, unless otherwise required by law, if (A) any stockholder provides notice pursuant to Rule 14a-19(b) under the Exchange Act (for the avoidance of doubt, such notice must be delivered within the time period provided for in Section 2.11(a)(ii) to be considered timely) and (B) such stockholder subsequently either (1) notifies this Corporation that such stockholder no longer intends to solicit proxies in support of director nominees other than this Corporation’s nominees in accordance with Rule 14a-19 under the Exchange Act or (2) fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange Act, then such stockholder’s nominations shall be deemed null and void and this Corporation shall disregard any proxies or votes solicited for such stockholders’ nominees. Upon request by this Corporation, if any stockholder provides notice pursuant to Rule 14a-19(b) under the Exchange Act, such stockholder shall deliver to this Corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) under the Exchange Act.

(vi) Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved for exclusive use by this Corporation.

(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to this Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to this Corporation’s notice of meeting (i) by or at the direction of the Board or any committee thereof which the Board has authorized to do so or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of this Corporation who is a stockholder of record at the time the notice provided for in this Section 2.11 is delivered to the Secretary of this Corporation, who is entitled to vote at the meeting upon such election and who complies with the notice procedures set forth in this Section 2.11. In the event this Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in this Corporation’s notice of meeting, if the stockholder’s notice required by Section 2.11(a)(ii) shall be delivered to the Secretary at the principal office of this Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event, however, may the number of nominees a stockholder may nominate for election at any such special meeting of stockholders exceed the number of directors to be elected at such special meeting. In addition, in no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

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(c) Submission of Questionnaire, Representation and Agreement. To be eligible to be a nominee for election or reelection as a director of this Corporation, the candidate for nomination must have previously delivered (in accordance with the time periods prescribed for delivery of notice under this Section 2.11 or Section 2.14, as applicable, with respect to any director nominee nominated for election by a stockholder), to the Secretary at the principal office of this Corporation, (i) a completed written questionnaire (in a form provided by this Corporation) with respect to the background, qualifications, stock ownership and independence of such proposed nominee and (ii) a written representation and agreement (in a form provided by this Corporation) that such candidate for nomination (A) is not and, if elected as a director during his or her term of office, will not become a party to (1) any agreement, arrangement or understanding with, and has not given and will not give any commitment or assurance to, any person or entity as to how such proposed nominee, if elected as a director of this Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to this Corporation or (2) any Voting Commitment that could limit or interfere with such proposed nominee’s ability to comply, if elected as a director of this Corporation, with such proposed nominee’s fiduciary duties under applicable law, (B) is not, and will not become a party to, any agreement, arrangement or understanding with any person or entity other than this Corporation with respect to any direct or indirect compensation or reimbursement for service as a director that has not been disclosed therein, (C) if elected as a director of this Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies and guidelines of this Corporation applicable to directors and in effect during such person’s term in office as a director (and, if requested by any candidate for nomination, the Secretary of this Corporation shall provide to such candidate for nomination all such policies and guidelines then in effect) and (D) consents (if applicable) to being named as a nominee in any proxy statement relating to the special meeting, and currently intends to serve as a director for the full term for which such person is standing for election.

(d) General.

(i) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 2.11 or in Section 2.14 shall be eligible to be elected at an annual or special meeting of stockholders of this Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.11. Except as otherwise provided by law, the chair of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the foregoing procedures (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by Section 2.11(a)(ii)(C)(7)) and (B) if any proposed nomination or business was not made or proposed in compliance with this Section 2.11 or 2.14, as applicable, to

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declare that such nomination shall be disregarded or that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of this Section 2.11, unless otherwise required by law, if the stockholder does not provide the information with respect to which such stockholder represented under Section 2.11(a)(ii)(C) it would notify this Corporation in writing within five (5) business days after the record date for the meeting of stockholders or if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of this Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by this Corporation. For purposes of this Section 2.11, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders prior to the making of such nomination or proposal at such meeting.

(ii) For purposes of this Section 2.11, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by this Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

(iii) Notwithstanding the foregoing provisions of this Section 2.11, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 2.11 (including, where applicable, Rule 14a-19 of the Exchange Act); provided, however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 2.11 (including Section 2.11(a)(i)(C) and (b)), and compliance with paragraphs Section 2.11(a)(i)(C) and (b) shall be the exclusive means for a stockholder to make nominations or submit other business (other than business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time, and other than as provided in Section 2.14). Nothing in this Section 2.11 shall be deemed to affect any rights (A) of stockholders to request inclusion of proposals or nominations in this Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (B) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

2.12 Conduct of Meetings. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the person presiding over the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the person

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presiding over any meeting of stockholders shall have the right and authority to postpone, convene and (for any reason or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the presiding person over the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present (including, without limitation, rules and procedures for removal of disruptive persons from the meeting); (c) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the presiding person of the meeting shall, in his or her discretion, determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting (including, without limitation, determinations with respect to the administration and/or interpretation of any of the rules, regulations or procedures of the meeting, whether adopted by the Board or prescribed by the person presiding over the meeting), shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

2.13 Organization. Meetings of stockholders shall be presided over by the Board Chair, or in his or her absence by the Board Vice Chair, if any, or in his or her absence, by the Chief Executive Officer or, in his or her absence, by a person designated by the Board, or in the absence of such designation by a person chosen by a majority vote of the stockholders present in person or represented by proxy at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the person presiding over the meeting may appoint any person to act as secretary of the meeting.

2.14 Proxy Access.

(a) Inclusion of Nominee in Proxy Materials. Whenever the Board solicits proxies with respect to the election of directors at an annual meeting of stockholders, subject to the provisions of this Section 2.14, this Corporation shall include in its proxy materials for such annual meeting, in addition to any persons nominated for election by the Board or a committee appointed by the Board, the name, together with the Required Information (as defined below), of any person nominated for election (a “Stockholder Nominee”) to the Board by a stockholder, or by a group of no more than twenty (20) stockholders, that has satisfied (individually or, in the case of a group, collectively) all applicable conditions and has complied with all applicable procedures set forth in this Section 2.14 (an “Eligible Stockholder,” which shall include an eligible stockholder group), and that expressly elects at the time of providing the notice required by this Section 2.14 (the “Nomination Notice”) to have its nominee included in this Corporation’s proxy materials for such annual meeting pursuant to this Section 2.14.

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(b) Required Information. For purposes of this Section 2.14, the “Required Information” that this Corporation will include in its proxy materials is (i) the information concerning the Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in this Corporation’s proxy statement by the rules and regulations of the Securities and Exchange Commission promulgated under the Exchange Act; and (ii) if the Eligible Stockholder so elects, a Supporting Statement (as defined below).

(c) Delivery of Nomination Notice. To be timely, a stockholder’s Nomination Notice must be delivered to, or mailed to and received by, the Secretary at the principal office of this Corporation, not later than the close of business on the one hundred twentieth (120th) day nor earlier than the one hundred fiftieth (150th) day prior to the first anniversary of the release date of this Corporation’s proxy materials for its most recent annual meeting of stockholders (provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after the first anniversary of the preceding year’s annual meeting), or if no annual meeting was held in the preceding year, to be timely, the Nomination Notice must be so delivered, or mailed and received, not earlier than the one hundred fiftieth (150th) day prior to the date of such annual meeting and not later than the close of business on the later of the one hundred twentieth (120th) day prior to the date of such annual meeting or the tenth (10th) day following the day on which public disclosure of the date of such annual meeting was first made by this Corporation. In no event shall any adjournment or postponement of an annual meeting or any public announcement thereof commence a new time period (or extend any time period) for the giving of a Nomination Notice as described above.

(d) Maximum Number of Stockholder Nominees.

(i) The maximum aggregate number of Stockholder Nominees nominated by all Eligible Stockholders that will be included in this Corporation’s proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (i) two or (ii) twenty percent (20%) of the number of directors in office as of the last day on which a Nomination Notice may be delivered pursuant to this Section 2.14, or if such amount is not a whole number, the closest whole number below twenty percent (20%); provided, however, that this number shall be reduced by (1) any Stockholder Nominee whose name was submitted by an Eligible Stockholder for inclusion in this Corporation’s proxy materials pursuant to this Section 2.14 but either is subsequently withdrawn or that the Board decides to nominate for election and (2) the number of incumbent directors who were Stockholder Nominees at any of the preceding two annual meetings (including any individual covered under clause (1) above) and whose election at the upcoming annual meeting is being recommended by the Board. In the event that one or more vacancies for any reason occurs on the Board after the deadline set forth in Section 2.14(c) above but before the date of the annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the maximum number shall be calculated based on the number of directors in office as so reduced.

(ii) Any Eligible Stockholder submitting more than one Stockholder Nominee for inclusion in this Corporation’s proxy materials pursuant to this Section 2.14 shall rank such Stockholder Nominees based on the order in which the Eligible Stockholder desires such Stockholder Nominees be selected for inclusion in this Corporation’s proxy materials.

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In the event that the number of Stockholder Nominees submitted by Eligible Stockholders pursuant to this Section 2.14 exceeds the maximum number of nominees provided for pursuant to subsection (d)(i) above, the highest ranking Stockholder Nominee who meets the requirements of this Section 2.14 of each Eligible Stockholder will be selected for inclusion in this Corporation’s proxy materials until the maximum number is reached, going in order by the number (largest to smallest) of shares of common stock of this Corporation each Eligible Stockholder disclosed as Owned (as defined below) in its respective Nomination Notice submitted to this Corporation pursuant to this Section 2.14. If the maximum number is not reached after the highest ranking Stockholder Nominee who meets the requirements of this Section 2.14 of each Eligible Stockholder has been selected, this process will continue with the next highest ranked nominees as many times as necessary, following the same order each time, until the maximum number is reached.

(e) Ownership. For purposes of this Section 2.14, an Eligible Stockholder shall be deemed to “Own” only those outstanding shares of common stock of this Corporation as to which the stockholder possesses both (i) the full voting and investment rights pertaining to the shares and (ii) the full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated in accordance with clauses (i) and (ii) shall not include any shares (x) sold by such stockholder or any of its affiliates in any transaction that has not been settled or closed, including any short sale, (y) borrowed by such stockholder or any of its affiliates for any purpose, or purchased by such stockholder or any of its affiliates subject to an agreement to resell, or (z) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by such stockholder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of shares of common stock of this Corporation, in any such case which instrument or agreement has, or is intended to have, or if exercised would have, the purpose or effect of (1) reducing in any manner, to any extent or at any time in the future, such stockholder’s or its affiliates’ full right to vote or direct the voting of any such shares, and/or (2) hedging, offsetting or altering to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such stockholder or affiliate. A stockholder shall “Own” shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. A stockholder’s Ownership of shares shall be deemed to continue during any period in which (i) the person has loaned such shares, provided that the person has the power to recall such loaned shares on no longer than five (5) business days’ notice and includes with the Nomination Notice an agreement that it (A) will promptly recall such loaned shares upon being notified by this Corporation that any of its Stockholder Nominees will be included in this Corporation’s proxy materials and (B) will continue to hold such recalled shares through the date of the annual meeting; or (ii) the person has delegated any voting power by means of a proxy, power of attorney or other instrument or arrangement that is revocable at any time by the person. The terms “Owned,” “Owning” and other variations of the word “Own” shall have correlative meanings. Whether outstanding shares of common stock of this Corporation are “Owned” for purposes of this Section 2.14 shall be determined by the Board or any committee thereof, which determination shall be conclusive and binding on this Corporation and its stockholders. For purposes of this Section 2.14, the term “affiliate” or “affiliates” shall have the meaning ascribed thereto under the rules and regulations of the Securities and Exchange Commission promulgated under the Exchange Act.

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(f) Eligible Stockholder. In order to make a nomination pursuant to this Section 2.14, an Eligible Stockholder or group of up to twenty (20) Eligible Stockholders must have Owned (as defined above) continuously for at least three (3) years at least the number of shares of common stock of this Corporation that shall constitute three percent (3%) or more of the voting power of the outstanding common stock of this Corporation (the “Required Shares”) as of (i) the date on which the Nomination Notice is delivered to, or mailed to and received by, the Secretary in accordance with this Section 2.14, (ii) the record date for determining stockholders entitled to vote at the annual meeting, and (iii) the date of the annual meeting. For purposes of this Section 2.14, two or more funds or trusts that are (A) under common management and investment control, (B) under common management and funded primarily by the same employer, or (C) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended (each, a “Qualifying Fund”), shall be treated as one stockholder or beneficial owner.

No person may be a member of more than one group of persons constituting an Eligible Stockholder under this Section 2.14. If a group of stockholders aggregates Ownership of shares in order to meet the requirements under this Section 2.14, (i) all shares held by each stockholder constituting their contribution to the foregoing three percent (3%) threshold must have been held by that stockholder continuously for at least three (3) years and through the date of the annual meeting, and evidence of such continuous Ownership shall be provided as specified in subsection 2.14(g) below, (ii) each provision in this Section 2.14 that requires the Eligible Stockholder to provide any written statements, representations, undertakings, agreements or other instruments or to meet any other conditions shall be deemed to require each stockholder (including each individual fund) that is a member of such group to provide such statements, representations, undertakings, agreements or other instruments and to meet such other conditions (except that the members of such group may aggregate their shareholdings in order to meet the three percent (3%) Ownership requirement of the “Required Shares” definition) and (iii) a breach of any obligation, agreement or representation under this Section 2.14 by any member of such group shall be deemed a breach by the Eligible Stockholder.

(g) Information to be Provided by Eligible Stockholder. Within the time period specified in this Section 2.14 for providing the Nomination Notice, an Eligible Stockholder making a nomination pursuant to this Section 2.14 must provide the following information in writing to the Secretary at the principal office of this Corporation:

(i) one or more written statements from the Eligible Stockholder (and from each other record holder of the shares and intermediary through which the shares are or have been held during the requisite three (3)-year holding period) specifying the number of shares of common stock of this Corporation that the Eligible Stockholder Owns, and has continuously Owned for three (3) years preceding the date of the Nomination Notice, and the Eligible Stockholder’s agreement to provide, within five (5) business days after the later of the record date for the annual meeting and the date on which the record date is first publicly disclosed by this Corporation, written statements from the Eligible Stockholder, record holder and intermediaries verifying the Eligible Stockholder’s continuous Ownership of the Required Shares through the record date, provided that statements meeting the requirements of Schedule 14N will be deemed to fulfill this requirement;

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(ii) the written consent of each Stockholder Nominee to being named in the proxy statement as a nominee and to serving as a director if elected, together with the information and representations that would be required to be set forth in a stockholder’s notice of a nomination pursuant to Section 2.11;

(iii) a copy of the Schedule 14N that has been or is concurrently being filed by such Eligible Stockholder with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act, as such rule may be amended;

(iv) the details of any relationship that existed within the past three (3) years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of Schedule 14N;

(v) a representation and undertaking (1) that the Eligible Stockholder (A) did not acquire, and is not holding, securities of this Corporation for the purpose or with the effect of influencing or changing control of this Corporation, (B) has not nominated and will not nominate for election to the Board at the annual meeting any person other than the Stockholder Nominee(s) being nominated by it pursuant to this Section 2.14, (C) has not engaged and will not engage in, and has not and will not be a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the annual meeting other than its Stockholder Nominee(s) or a nominee of the Board, (D) has not distributed and will not distribute to any stockholder any form of proxy for the annual meeting other than the form distributed by this Corporation, and (E) will Own the Required Shares through the date of the annual meeting of stockholders; (2) that the facts, statements and other information in all communications with this Corporation and its stockholders are and will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; and (3) as to whether or not the Eligible Stockholder intends to maintain qualifying Ownership of the Required Shares (as set forth in Section 2.14(f)) for at least one year following the annual meeting;

(vi) in the case of a nomination by a group of stockholders that together is an Eligible Stockholder, the designation by all group members of one group member that is authorized to receive communications, notices and inquiries from this Corporation and to act on behalf of all such members with respect to the nomination and all matters related thereto, including any withdrawal of the nomination, and the acceptance by such group member of such designation;

(vii) an undertaking that the Eligible Stockholder agrees to (A) assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications with the stockholders of this Corporation or out of the information that the Eligible Stockholder provided to this Corporation, (B) indemnify and hold harmless this Corporation and each of its directors, officers and employees individually against any liability, loss or damages in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against this Corporation or any of its directors, officers or employees arising out of any nomination,

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solicitation or other activity by the Eligible Stockholder in connection with its efforts to elect the Stockholder Nominee(s) pursuant to this Section 2.14, (C) comply with all other laws, rules and regulations applicable to any actions taken pursuant to this Section 2.14, including the nomination and any solicitation in connection with the annual meeting of stockholders, and (D) with respect to any shares held or controlled by the Eligible Stockholder, to the extent that cumulative voting would otherwise be permitted, agrees not to cumulate votes in favor of the election of any Stockholder Nominee(s) nominated by such Eligible Stockholder; and

(viii) in the case of a Qualifying Fund whose share Ownership is counted for purposes of qualifying as an Eligible Stockholder, documentation from the Qualifying Fund reasonably satisfactory to the Board that demonstrates that it meets the requirements of a Qualifying Fund set forth in Section 2.14(f) above.

(h) Supporting Statement. The Eligible Stockholder may provide to the Secretary, at the time the information required by this Section 2.14 is provided, a written statement for inclusion in this Corporation’s proxy statement for the annual meeting of stockholders, not to exceed five hundred (500) words, in support of the Stockholder Nominee(s)’ candidacy (the “Supporting Statement”). Notwithstanding anything contained in this Section 2.14 to the contrary, this Corporation may omit from its proxy materials any information or Supporting Statement (or portion thereof) that it, in good faith, believes (i) is not true in all material respects or omits a material statement necessary to make such information or Supporting Statement (or portion thereof) not misleading; (ii) directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person; or (iii) would violate any applicable law, rule, regulation or listing standard. Nothing in this Section 2.14 shall limit this Corporation’s ability to solicit against and include in its proxy materials its own statements relating to any Eligible Stockholder or Stockholder Nominee.

(i) Representations and Agreement of the Stockholder Nominee. Within the time period specified in this Section 2.14 for delivering the Nomination Notice, a Stockholder Nominee must deliver to the Secretary the questionnaire and all representations and agreements required by a candidate for nomination pursuant to Section 2.11(c). This Corporation may request such additional information (a) as may be reasonably necessary to permit the Board or any committee thereof to determine if each Stockholder Nominee is independent under the listing standards of the principal U.S. exchange upon which this Corporation’s common stock is listed, any applicable rules of the Securities and Exchange Commission and any publicly disclosed standards used by the Board in determining and disclosing the independence of this Corporation’s directors (the “Applicable Independence Standards”) and otherwise to determine the eligibility of each Stockholder Nominee to serve as a director of this Corporation, or (b) that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of each Stockholder Nominee.

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(j) True, Correct and Complete Information. In the event that any information or communications provided by any Eligible Stockholder or Stockholder Nominee to this Corporation or its stockholders is not, when provided, or thereafter ceases to be, true, correct and complete in all material respects (including omitting a material fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading), such Eligible Stockholder or Stockholder Nominee, as the case may be, shall promptly notify the Secretary and provide the information that is required to make such information or communication true, correct, complete and not misleading; it being understood that providing any such notification shall not be deemed to cure any such defect or limit this Corporation’s right to omit a Stockholder Nominee from its proxy materials pursuant to this Section 2.14. In addition, any person providing any information to this Corporation pursuant to this Section 2.14 shall further update and supplement such information, if necessary, so that all such information shall be true and correct as of the record date for the annual meeting and as of the date that is ten (10) business days prior to the annual meeting or any adjournment or postponement thereof, and such update and supplement (or a written certification that no such updates or supplements are necessary and that the information previously provided remains true and correct as of the applicable date) shall be delivered to, or mailed to and received by, the Secretary at the principal office of this Corporation not later than five (5) business days after the later of the record date for the annual meeting and the date on which the record date is first publicly disclosed by this Corporation (in the case of any update and supplement required to be made as of the record date), and not later than seven (7) business days prior to the date of the annual meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of ten (10) business days prior to the annual meeting).

(k) Limitation on Stockholder Nominees. Any Stockholder Nominee who is included in this Corporation’s proxy materials for a particular annual meeting of stockholders, but withdraws from or becomes ineligible or unavailable for election at such annual meeting, will be ineligible to be a Stockholder Nominee pursuant to this Section 2.14 for the next two (2) annual meetings of stockholders.

(l) Exceptions. Notwithstanding anything in this Section 2.14 to the contrary, this Corporation shall not be required to include, pursuant to this Section 2.14, any Stockholder Nominee in its proxy materials for any meeting of stockholders (i) if the Eligible Stockholder who has nominated such Stockholder Nominee has engaged in or is currently engaged in, or has been or is a “participant” in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other than its Stockholder Nominee(s) or a nominee of the Board, (ii) if this Corporation receives notice pursuant to Section 2.14 that any stockholder intends to nominate any nominee for election to the Board at such meeting, (iii) who is not independent under the Applicable Independence Standards, as determined by the Board or any committee thereof, (iv) whose nomination or election as a member of the Board would cause this Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the rules and listing standards of the principal exchanges upon which this Corporation’s shares of common stock are listed or traded, or any applicable law, rule or regulation, (v) who is or has been, within the past three (3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, (vi) who is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such a criminal proceeding within the past ten (10) years, (vii) who is subject to any order of the type specified in Rule 506(d) of Regulation D promulgated under the Securities Act of 1933, as amended, (viii) if such Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to this Corporation in respect to such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make

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the statement made, in light of the circumstances under which it was made, not misleading, as determined by the Board, (ix) if such Stockholder Nominee or the applicable Eligible Stockholder otherwise contravenes any of the agreements or representations made by such Stockholder Nominee or Eligible Stockholder or fails to comply with its obligations pursuant to this Section 2.14, or (x) if the applicable Eligible Stockholder ceases to be an Eligible Stockholder for any reason, including but not limited to not Owning the Required Shares through the date of the applicable annual meeting of stockholders.

(m) Disqualifications. Notwithstanding anything in this Section 2.14 to the contrary, if (i) a Stockholder Nominee is determined not to satisfy the eligibility requirements of this Section 2.14 or any other provision of this Corporation’s Bylaws, Certificate of Incorporation, Corporate Governance Guidelines or other applicable regulation at any time before the annual meeting (whether or not already included in this Corporation’s proxy materials for the annual meeting), (ii) a Stockholder Nominee and/or the applicable Eligible Stockholder shall have breached any of its obligations, agreements or representations or fails to comply with its obligations under this Section 2.14, (iii) the applicable Eligible Stockholder (or a qualified representative thereof) does not appear at the annual meeting of stockholders to present any nomination pursuant to this Section 2.14, (iv) a Stockholder Nominee dies, becomes disabled or otherwise becomes ineligible or unavailable for election at the annual meeting, or (v) the applicable Eligible Stockholder otherwise ceases to be an Eligible Stockholder for any reason, including but not limited to not Owning the Required Shares through the date of the applicable annual meeting of stockholders, in each of clauses (i) through (v) as determined by the Board, any committee thereof or the person presiding at the annual meeting, (x) this Corporation may omit or, to the extent feasible, remove the information concerning such Stockholder Nominee and the related Supporting Statement from its proxy materials and/or otherwise communicate to its stockholders that such Stockholder Nominee will not be eligible for election at the annual meeting, (y) this Corporation shall not be required to include in its proxy materials any successor or replacement nominee proposed by the applicable Eligible Stockholder or any other Eligible Stockholder and (z) the Board or the person presiding at the annual meeting shall declare such nomination to be invalid and such nomination shall be disregarded notwithstanding that proxies in respect of such vote may have been received by this Corporation.

(n) Filing Obligation. The Eligible Stockholder (including any person who Owns shares of common stock of this Corporation that constitute part of the Eligible Stockholder’s Ownership for purposes of satisfying Section 2.14(e) hereof) shall file with the Securities and Exchange Commission any solicitation or other communication with this Corporation’s stockholders relating to the meeting at which the Stockholder Nominee will be nominated, regardless of whether any such filing is required under Regulation 14A of the Exchange Act or whether any exemption from filing is available for such solicitation or other communication under Regulation 14A of the Exchange Act.

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ARTICLE III

Board of Directors

3.1 General Powers. Subject to the requirements of the General Corporation Law, the property, business and affairs of this Corporation shall be managed by the Board.

3.2 Number and Term of Office. The Board shall consist of one or more directors, the number thereof to be determined from time to time by resolution of the Board. Directors need not be stockholders. Each of the directors of this Corporation shall hold office until his or her successor shall have been duly elected and shall qualify or until he or she shall resign or shall have been removed in the manner provided in these Bylaws.

3.3 Election of Directors.

(a) The Governance Committee of the Board shall recommend to the Board, Board nominees for election and/or re-election to the Board at the annual meeting of stockholders and candidates to fill vacancies on the Board in between annual meetings of stockholders. The Board of Directors shall consider the candidates recommended by the Governance Committee of the Board when recommending to the stockholders Board nominees for election and/or re-election to the Board at the annual meeting of stockholders and when filling vacancies on the Board in between annual stockholder meetings.

(b) The directors shall be elected annually by the stockholders of this Corporation. Except as otherwise provided in Section 3.5 below, each director shall be elected by the vote of a majority of the votes cast with respect to such director’s election at any annual or special meeting for the election of directors at which a quorum is present. If, however, as of the tenth (10th) day preceding the date the notice of the meeting is first mailed for such meeting to the stockholders of this Corporation, the number of nominees exceeds the number of directors to be elected (a “Contested Election”), the nominees receiving the greatest number of votes of the shares represented in person or by proxy at the meeting and entitled to vote on the election of directors, up to the number of directors to be elected, shall be the directors. For purposes of this Section 3.3, a “majority of the votes cast” means that the number of shares voted “for” a nominee must exceed the number of votes cast “against” that nominee (with “abstentions” and “broker non-votes” not counted as a vote cast either “for” or “against” that director’s election).

(c) If an incumbent director is not reelected but would otherwise remain in office until his or her successor is elected and qualified, the director shall offer to tender his or her resignation to the Board, which may be conditioned upon acceptance of such resignation by the Board. If a resignation is so conditioned, the Governance Committee of the Board, or such other committee designated by the Board pursuant to Section 3.15 below, will evaluate any such resignation in light of the best interests of this Corporation and its stockholders and will make a recommendation to the Board on whether to accept or reject such resignation or whether other action should be taken with respect thereto. In making its recommendation, such committee may consider any factors it deems relevant, including the director’s qualifications, the director’s past and expected future contributions to this Corporation, the overall composition of the Board and whether accepting the tendered resignation would cause this Corporation to fail to satisfy or otherwise comply with any applicable rule or regulation (including listing requirements of The Nasdaq Stock Market LLC and the federal securities laws). The Board will act on the resignation, taking into account the recommendation of such committee, and this Corporation will publicly disclose (by a press release and filing an appropriate disclosure with the Securities and Exchange Commission) the Board’s decision regarding the resignation and, if such resignation is rejected, the rationale behind the decision within ninety (90) days from the date of the certification of the election results. The director who tenders his or her resignation will not participate in the decision of the Board or Board committee.

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(d) If the Board accepts a director’s resignation pursuant to this Bylaws, or if a nominee for director is not elected and the nominee is not an incumbent director, then the Board may fill the resulting vacancy in accordance with the provisions of these Bylaws or may decrease the size of the Board in accordance with the provisions of these Bylaws.

(e) If no directors receive the requisite majority vote at an annual or special meeting held for the election of directors that is not a Contested Election, the incumbent Board will nominate a new slate of directors and hold a special meeting for the purpose of electing those nominees within one hundred eighty (180) days after the certification of the stockholder vote at the prior meeting. In this circumstance, the incumbent Board will continue to serve until new directors are duly elected and qualified.

3.4 Resignations. Any director of this Corporation may resign at any time by giving notice in writing or by electronic transmission to the Board or to the Secretary of this Corporation. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, it shall take effect immediately upon its receipt by the Board or the Secretary; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

3.5 Vacancies. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directors, although less than a quorum, or by a plurality of the votes cast at a meeting of stockholders. Each director so chosen to fill a vacancy shall hold office until his or her successor shall have been elected and shall qualify or until he or she shall resign or shall have been removed in the manner provided in these Bylaws. If there are no directors in office, then an election of directors may be held in the manner provided by the General Corporation Law.

3.6 Place of Meeting, Etc. The Board may hold any of its meetings at such place or places within or without the State of Delaware as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or a waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or other communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting.

3.7 Annual Meeting. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required, provided a quorum shall be present; or such meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board, or as shall be specified in a waiver given by each person entitled to notice.

3.8 Regular Meetings. Regular meetings of the Board shall be held at such times and places as the Board shall from time to time by resolution determine. If any day fixed for a regular meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same time and place on the next succeeding business day not a legal holiday.

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3.9 Special Meetings; Notice. Special meetings of the Board for any purpose or purposes may be called at any time by the Board Chair, the Chief Executive Officer, the Secretary or any two directors. Notice of a special meeting of the Board shall be given by the person or persons calling the meeting at least twenty-four (24) hours before the special meeting. Except as otherwise provided herein or permitted by applicable law, notices to any director may be in writing and delivered personally or may be given by telephone or by any means of electronic transmission (including, without limitation, electronic mail or calendar invitation by electronic mail) directed to an address for receipt by such director of electronic transmissions appearing on the books of this Corporation. Unless otherwise stated in the notice thereof, any and all business may be transacted at a special meeting of the Board.

3.10 Quorum and Manner of Acting. Except as otherwise provided in these Bylaws, the Certificate of Incorporation or by law, the presence of a majority of the authorized number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present.

In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such.

3.11 Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in writing or by electronic transmission. Any such consent may be documented, signed and delivered in any manner permitted by Section 116 of the General Corporation Law. After any such action is taken, the consent or consents relating thereto shall be filed with the minutes of proceedings of the Board or committee in the same paper or electronic form as the minutes are maintained.

3.12 Removal of Directors. Except as otherwise provided by the Certificate of Incorporation or applicable law, any director may be removed at any time, either with or without cause, by the affirmative vote of the stockholders then entitled to vote at an election of directors having a majority of the voting power of this Corporation given at an annual meeting or a special meeting of the stockholders called for such purpose.

3.13 Compensation. The directors shall receive only such compensation for their services as directors as may be allowed by resolution of the Board. The Board may also provide that this Corporation shall reimburse each such director for any expense incurred by such director on account of his or her attendance at any meetings of the Board or committees of the Board. Neither the payment of such compensation nor the reimbursement of such expenses shall be construed to preclude any director from serving this Corporation or its subsidiaries in any other capacity and receiving compensation therefor.

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3.14 Board Chair and Board Vice Chair. This Corporation shall have a Board Chair and, at its discretion, a Board Vice Chair. Any such Board Chair or Board Vice Chair may be an officer of this Corporation if determined by the Board in its discretion. The Board Chair, and in his or her absence the Board Vice Chair, shall preside at all meetings of the stockholders and of the Board. The Board Chair or Board Vice Chair shall have other such other powers and duties as may be from time to time be assigned to him or her by the Board or as may be prescribed by the Bylaws.

3.15 Committees.

(a) The Board may appoint one or more committees, each consisting of one or more directors, and delegate to such committees any of the authority of the Board permitted by law except with respect to:

(i) the approval or adoption, or the making of a recommendation to the stockholders with respect to, any action or matter that is required under the General Corporation Law to be submitted to the stockholders;

(ii) the filling of vacancies on the Board or on any committee;

(iii) except as otherwise required by law or the rules and regulations of any nationally recognized securities exchange on which shares of this Corporation’s stock are traded, the fixing of compensation of the directors for serving on the Board or on any committee;

(iv) the amendment or repeal of these Bylaws or the adoption of new Bylaws;

(v) the amendment or repeal of any resolution of the Board which by its express terms is not amendable or repealable;

(vi) distribution to the stockholders of this Corporation except at a rate or in a periodic amount or within a price range determined by the Board; or

(vii) the appointment of other committees of the Board or the members thereof.

(b) Any such committee must be appointed by resolution adopted by the Board and may be designated an Executive Committee or by such other name as the Board shall specify. The Board may designate one or more directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. The Board shall have the power to prescribe the manner in which proceedings of any such committee shall be conducted. In the absence of any such prescription, such committee shall have the power to prescribe the manner in which its proceedings shall be conducted. Unless the Board or such committee shall provide, the regular and special meetings of any such committee shall be governed by the provisions of this Article applicable to meetings and actions of the Board. Minutes shall be kept of each meeting of such committee and filed with the Secretary of this Corporation.

3.16 Executive Committee. The passage of any resolution of the committee designated by the Board as the Executive Committee shall, in addition to any other limitations prescribed by the Board in accordance with the provisions of Section 3.15, require the affirmative vote of a majority of directors present and voting on such resolution who are not employees of this Corporation.

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3.17 Rights of Inspection. Every director shall have the right to examine this Corporation’s stock ledger, a list of its stockholders and its other books and records for a purpose reasonably related to the director’s position as a director. The Court of Chancery of the State of Delaware is vested with the exclusive jurisdiction to determine whether a director is entitled to the inspection sought.

3.18 Organization. Meetings of the Board shall be presided over by the Board Chair, or in his or her absence by the Board Vice Chair, if any, or in his or her absence by the Chief Executive Officer if such person is a member of the Board, or in his or her absence by a chair chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence the chair of the meeting may appoint any person to act as secretary of the meeting.

ARTICLE IV

Officers

4.1 Corporate Officers.

(a) The officers of this Corporation shall consist of a Chief Executive Officer, a Secretary and a Chief Financial Officer. At the discretion of the Board, the Board Chair may be an officer of this Corporation.

(b) In addition to the officers specified in Section 4.1(a), the Board may appoint such additional officers as the Board may deem necessary or desirable, including a President, one or more Vice Presidents, one or more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers, each of whom shall hold office for such period, have such authority and perform such duties as the Board may from time to time determine. The Board may delegate to any officer of this Corporation or any committee of the Board the power to appoint, remove (with or without cause) and prescribe the term and duties of any officer provided for in this Section 4.1(b).

(c) One person may hold two or more offices, except that the Secretary may not hold the office of Chief Executive Officer.

4.2 Appointment and Term of Office. Each officer shall serve at the pleasure of the Board and shall hold office until a successor shall have been appointed or until such officer’s death, disqualification, resignation or removal. Any officer may be removed, either with or without cause, by the Board or, except in case of an officer appointed by the Board, by any officer upon whom such power of removal may be conferred by the Board.

4.3 Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission of such officer’s resignation to this Corporation. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, upon receipt thereof by this Corporation. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

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4.4 Vacancies. A vacancy in any office because of death, resignation, removal or disqualification or other event, may be filled in the manner prescribed in these Bylaws for regular appointments to such office.

4.5 Chief Executive Officer. The Chief Executive Officer shall have, subject to the control of the Board, general and active supervision, direction and control of the business of this Corporation and its officers, agents and employees, and shall perform all duties as may from time to time be assigned to him or her by the Board.

4.6 Secretary. The Secretary shall keep or cause to be kept, at the principal office of this Corporation or at such other place as the Board may order, a book of minutes of all meetings of the stockholders, the Board and its committees, the time and place, if any, of holding such meetings, whether regular or special, and, if special, how authorized, the notice thereof given, the names of those present at Board and committee meetings, the number of shares present or represented at stockholder meetings and the proceedings thereof. The Secretary shall keep, or shall cause to be kept, at the principal office or at the office of this Corporation’s transfer agent or registrar, a share register, or a duplicate share register, showing the names of stockholders and their addresses, the number and classes of shares of stock held by each, the number and date of certificates representing such shares and the number and date of cancellation of every certificate surrendered for cancellation. The Secretary shall give, or shall cause to be given, in conformity with these Bylaws, notice of all meetings of the stockholders and of the Board and of any committees thereof requiring notice. The Secretary shall keep the seal of this Corporation in safe custody and shall have such other powers and shall perform such other duties as may from time to time be assigned to him or her by the Board. In the event of the absence, inability or refusal to act of the Secretary, any Assistant Secretary shall perform the duties and exercise the powers of the Secretary.

4.7 Chief Financial Officer. The Chief Financial Officer shall keep and maintain, or shall cause to be kept and maintained, adequate and correct accounts of the properties and business transactions of this Corporation, and shall send or shall cause to be sent to the stockholders of this Corporation such financial statements and reports as are by law or by these Bylaws required to be sent to them. The books of account shall at all reasonable times be open to inspection by any director. The Chief Financial Officer shall render to the Chief Executive Officer and directors, whenever they request it, an account of all transactions as Chief Financial Officer and of the financial condition of this Corporation, and shall have such other powers and perform such other duties as may from time to time be assigned to him or her by the Board.

4.8 Compensation. To the extent required by applicable listing requirements of The Nasdaq Stock Market LLC, the compensation of those officers appointed by the Board pursuant to Section 4.1(a) or (b) of these Bylaws shall be fixed from time to time by the Board or a committee of the Board delegated with such authority. No officer shall be prevented from receiving compensation by reason of the fact that such officer is also a director of this Corporation or any of its subsidiaries. Nothing contained herein shall preclude any officer from serving this Corporation or any of its subsidiaries, in any other capacity and receiving compensation therefor.

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ARTICLE V

Contracts, Checks, Drafts, Bank Accounts, Etc.

5.1 Execution of Contracts. The Board, except as in these Bylaws otherwise provided, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name of and on behalf of this Corporation, and such authority may be general or confined to specific instances. Unless so authorized by the Board or by these Bylaws, no officer, agent or employee shall have any power or authority to bind this Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount.

5.2 Checks, Drafts, Etc. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness, issued in the name of or payable to this Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board. Each authorized person shall give such bond, if any, as the Board may require.

5.3 Deposits. All funds of this Corporation not otherwise employed shall be deposited from time to time to the credit of this Corporation in such banks, trust companies and other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of this Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of this Corporation, the Chief Executive Officer, the President, the Chief Financial Officer and any Treasurer appointed in accordance with Section 4.1(b) (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of this Corporation who shall from time to time be determined by the Board) may each endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of this Corporation.

5.4 General and Special Bank Accounts. The Board may from time to time authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by any officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of this Corporation to whom such power shall have been delegated by the Board. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of these Bylaws, as it may deem expedient.

ARTICLE VI

Shares and Their Transfer

6.1 Certificates of Stock; Uncertificated Shares.

(a) The shares of stock of this Corporation shall be represented by certificates, provided that the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to this Corporation. Notwithstanding the adoption of any resolution providing for uncertificated shares, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be

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entitled to have a certificate, in such form as the Board shall prescribe, signed by, or in the name of this Corporation by any two authorized officers of this Corporation (it being understood that each of the Board Chair, the Board Vice Chair, the Chief Executive Officer, the Chief Financial Officer, the President, a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary shall be an authorized officer for such purpose), representing the number of shares registered in certificate form. Any of or all of the signatures on the certificates may be by facsimile. In case any officer, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon, any such certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by this Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue.

(b) A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by certificates or registered in uncertificated form, the number and class of shares represented by such certificates or registered in uncertificated form, and in case of cancellation, the respective dates of cancellation. Every certificate surrendered to this Corporation for exchange or transfer shall be cancelled, and, where the shares are to be represented by certificates, no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 6.4. Uncertificated shares shall be cancelled and issuance of new equivalent uncertificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of this Corporation.

6.2 Transfers of Stock. Shares of capital stock of this Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Shares of capital stock of this Corporation shall only be transferred on the books of this Corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to this Corporation of the certificate or certificates representing such shares endorsed by the appropriate person or persons (or, with respect to uncertificated shares, by delivery of duly executed instructions or in any other manner permitted by applicable law), with such evidence of the authenticity of such endorsement or execution, transfer, authorization, and other matters as this Corporation may reasonably require, and accompanied by all necessary stock transfer stamps.

6.3 Regulations. Subject to the provisions of the Certificate of Incorporation and these Bylaws, the Board may make such additional rules and regulations as it may deem expedient concerning the issue, transfer and registration of certificates representing shares of the stock of this Corporation or uncertificated shares.

6.4 Lost, Stolen, Destroyed, and Mutilated Certificates. In any case of loss, theft, destruction, or mutilation of any certificate of stock, another may be issued in its place upon proof of such loss, theft, destruction, or mutilation and upon the giving of a bond of indemnity to this Corporation in such form and in such sum as the Board may direct; provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper to do so.

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ARTICLE VII

Indemnification

7.1 Scope of Indemnification. This Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of this Corporation or, while a director or officer of this Corporation, is or was serving at the request of this Corporation as a director, officer, member, manager, partner, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, other enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) actually and reasonably incurred by such Covered Person in connection with such proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 7.6, this Corporation shall be required to indemnify a Covered Person pursuant to this Article VII in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board.

7.2 Advancement of Expenses. This Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this Article VII or otherwise.

7.3 Other Rights and Remedies. The rights conferred on any Covered Person by this Article VII shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

7.4 Continuation of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

7.5 Insurance. Upon resolution passed by the Board, this Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of this Corporation or, while a director, officer, employee or agent of this Corporation, is or was serving at the request of this Corporation as a director, officer, member, manager, partner, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not this Corporation would have the power to indemnify such person against such liability under the provisions of this Article. For purposes of this Section 7.5, insurance shall include any insurance provided directly or indirectly (including pursuant to any fronting or reinsurance arrangement) by or through a captive insurance company in accordance with the requirements of Section 145(g) of the General Corporation Law.

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7.6 Claims. If a claim for indemnification (following the final disposition of such action, suit or proceeding) under this Article VII is not paid in full within forty-five (45) days after a written claim therefor by the Covered Person has been received by this Corporation or if a claim for any advancement of expenses under this Article VII is not paid in full within thirty (30) days after this Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, this Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

7.7 Amendment or Repeal. Any right to indemnification and advancement of expenses of any person covered by the provisions of this Article VII arising hereunder shall not be eliminated or impaired by an amendment to or repeal of these Bylaws after the occurrence of the act or omission that is the subject of the proceeding for which indemnification or advancement of expenses is sought.

7.8 Other Indemnification and Advancement of Expenses. This Article VII shall not limit the right of this Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

ARTICLE VIII

Miscellaneous

8.1 Fiscal Year. The fiscal year of this Corporation shall be determined by resolution of the Board.

8.2 Seal. The Board shall adopt a corporate seal, which shall be in the form of a circle and shall bear the name of this Corporation and words and figures showing that this Corporation was incorporated in the State of Delaware and the year of incorporation.

8.3 Waiver of Notices. Any waiver of notice, given by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting (whether in person or by proxy in the case of a meeting of stockholders) shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at nor the purpose of any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in a waiver of notice.

8.4 Form of Records. Any records maintained by this Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of, any information storage device or method, or one or more electronic networks or databases (including one or more distributed networks or databases), provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

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8.5 Amendments. These Bylaws may be altered, amended or repealed, and new Bylaws may be adopted, (i) by the Board, by vote of a majority of the number of directors then in office as directors, or (ii) by the stockholders, provided that notice of such proposed amendment, modification, repeal or adoption is given in the notice of the meeting of the stockholders called for the purpose of acting upon any proposed amendment, modification, release or adoption. To the extent permitted by law, any Bylaws made or altered by the stockholders may be altered or repealed by either the Board or the stockholders.

8.6 Representation of Other Corporations. The Chief Executive Officer, the President, any Vice President, or the Secretary or any Assistant Secretary of this Corporation are each authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares of or other equity interests in any other corporation or entity standing in the name of this Corporation. The authority herein granted to said officers to vote or represent on behalf of this Corporation any and all shares or equity interests held by this Corporation in any other corporation or entity may be exercised either by such officers in person or by any person authorized so to do by proxy or power of attorney duly executed by said officers.

8.7 Electronic Signatures, Etc. Any document, including, without limitation, any consent, agreement, certificate or instrument, required by the General Corporation Law, the Certificate of Incorporation or these Bylaws to be executed by any officer, director, stockholder, employee or agent of this Corporation may be executed using a facsimile or other form of electronic signature to the fullest extent permitted by applicable law. All other contracts, agreements, certificates or instruments to be executed on behalf of this Corporation may be executed using a facsimile or other form of electronic signature to the fullest extent permitted by applicable law.

8.8 Reliance on Books, Reports and Records. Each director and each member of any committee designated by the Board shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books and records of this Corporation and upon such information, opinions, reports or statements presented to this Corporation by any of its officers, agents or employees, or committees of the Board so designated, or by any other person or entity as to matters which such director or committee member reasonably believes are within such other person’s or entity’s professional or expert competence and that has been selected with reasonable care by or on behalf of this Corporation.

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Exhibit 10.1

FORM OF TRANSITION SERVICES AGREEMENT

This Transition Services Agreement (together with the Service Schedules hereto, the “TSA” or “Agreement”), is made as of [•] (the “Effective Date”), by and between Western Digital Corporation, a Delaware corporation (“WDC”), and Sandisk Corporation, a Delaware corporation (together with its successors and assigns, “Spinco”). Each of WDC and Spinco are hereinafter referred to as a “Party” and are collectively the “Parties” to this Agreement.

W I T N E S S E T H:

WHEREAS, WDC, directly and indirectly through its wholly owned Subsidiaries, is engaged in the Flash Business;

WHEREAS, WDC and Spinco have entered into a Separation and Distribution Agreement, dated as of [•] (as amended, modified or supplemented from time to time in accordance with its terms, the “SDA”), pursuant to which, and on the terms and conditions of which, among other things, (i) WDC has agreed to transfer to Spinco, and Spinco has agreed to receive and assume, certain assets and liabilities of the Flash Business and (ii) following such transfer and the other transactions specified in the SDA, WDC has agreed to effect the Distribution, all as more specifically described in, and subject to the terms of, the SDA;

WHEREAS, prior to the Separation Time, the Flash Business received certain services from WDC and certain of its Affiliates, and WDC and certain of its Affiliates received certain services from the Flash Business; and

WHEREAS, WDC and Spinco each desire that certain of these services continue to be provided after the Distribution upon the terms and conditions set forth in this TSA.

NOW THEREFORE, in consideration of the mutual covenants and agreements contained in this TSA, and intending to be legally bound, and for other good and valuable consideration, the receipt and sufficiency which are hereby acknowledged, WDC and Spinco hereby agree as follows:

SECTION 1. Definitions Incorporated. All capitalized terms used but not otherwise defined in this TSA have the meanings ascribed to them in the SDA.

SECTION 2. Additional Definitions. Unless the context otherwise requires, the following terms, in their singular or plural forms, used in this TSA shall have the meanings set forth below:

2.1 “Early Termination Costs” means, without duplication of any Fees or Out-of-Pocket Costs paid or payable hereunder, any third-party costs or expenses incurred or paid by Service Provider, or that Service Provider is or will be obligated to pay pursuant to any commitments, purchase orders, work orders or any agreements entered into in good faith with third parties in order to provide such

Service, including non-refundable prepayments to vendors or termination penalties payable pursuant to such agreements, to the extent such costs or expenses could not be reasonably avoided and would otherwise not have been incurred if the applicable Service had not been terminated prior to its scheduled Service Term.

2.2 “Excluded Service” means a service set forth on a schedule of excluded services that is attached to this TSA.

2.3 “Fees” means the fees set forth in a Service Schedule to be paid to Service Provider and its Affiliates in connection with providing Services to Service Recipient.

2.4 “Governance Framework” means the document attached as Exhibit A to this TSA.

2.5 “Legal Requirement” shall mean any federal, state, local, municipal, foreign or other law, statute, constitution, treaty, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling, injunction, judgment, order, assessment, writ or other legal requirement, administrative policy or official guidance issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

2.6 “Losses” means direct losses, damages, costs and expenses; provided that “Losses” shall not include any (A) punitive, exemplary or special damages or (B) any indirect, incidental or consequential damages.

2.7 “Service Provider” means a Party in its capacity as a provider of Services hereunder.

2.8 “Service Recipient” means a Party in its capacity as a recipient of Services hereunder.

2.9 “Service Schedule” means a schedule for Services that is attached to this TSA.

2.10 “Service Term” means the period of time during which Service Provider will provide each individual Service to Service Recipient. Unless stated otherwise in the Service Schedule, all Service Terms commence immediately following the Distribution.

2.11 “Services” means the services to be provided by Service Provider or an Affiliate of Service Provider to Service Recipient set forth in a Service Schedule.

2.12 “Tax” or “Taxes” has the meaning set forth in the Tax Matters Agreement.

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2.13 “WDC Business” means the businesses of WDC and its Subsidiaries at Closing (for the avoidance of doubt, other than the Flash Business).

SECTION 3. Services Provided.

3.1 Agreement to Provide Services.

3.1.1 Services. Pursuant to the terms and conditions of this TSA and the applicable Service Schedules, Service Provider will, or will, in accordance with Section 6.5, cause one or more of its Affiliates or third-party contractors to, provide the Services described in each Service Schedule to Service Recipient in accordance with the service standards set forth in Section 6.1. Unless otherwise agreed by the Parties in a Service Schedule, Service Provider shall not be required to provide any Service in a location other than where such Service was performed as of immediately prior to the Closing. Service Recipient agrees that the Services are for the sole use and benefit of Service Recipient and its Affiliates, in each case, solely with respect to the Flash Business or the WDC Business, as applicable, conducted at Closing. Service Recipient shall not resell any of the Services to any Person whatsoever and shall not permit the receipt or use of the Services by any Person other than for the conduct of the Flash Business or the WDC Business, as applicable, in the ordinary course consistent with past practice. Subject to Section 3.1.2, for the avoidance of doubt, except as set forth in a Service Schedule executed by each Party, neither Service Provider nor any of its Affiliates shall be obligated to provide any other services to Service Recipient or any of its Affiliates.

3.1.2 Omitted Services. If either Party (a) identifies a service that (i) WDC provided to the Flash Business as of immediately prior to Closing that Spinco reasonably needs in order for the Flash Business to continue to operate in substantially the same manner in which the Flash Business operated as of immediately prior to Closing and such service was not set forth on the Service Schedules (other than an Excluded Service) or (ii) the Flash Business provided to WDC as of immediately prior to Closing that WDC reasonably needs in order for the WDC Business to continue to operate in substantially the same manner in which the WDC Business operated as of immediately prior to Closing, and such service was not set forth on the Service Schedules (other an Excluded Service); provided that in each case of (i) and (ii), the requesting Party or its Affiliates do not have the ability or resources to perform the service or to obtain such service from a third party without undue hardship or expense (the services referenced in clause (i) and clause (ii), the “Omitted Services”), and (b) provides a written change request (in the form agreed by the Parties) to the other Party requesting such Omitted Service within ninety (90) days after the Closing, then such other Party shall negotiate in good faith to provide such Omitted Service, as applicable; provided that the actual Fees associated with any such Omitted Services will be determined in a manner consistent with the manner used to determine the compensation for similar Services; provided, however, that neither Party shall be obligated to provide any Omitted Service if it does not, in its reasonable judgment, have adequate resources to provide such Omitted Service. Without limiting the foregoing, Service Recipient shall bear all of Service Provider’s internal and external fully burdened costs and expenses, including Out-of-Pocket Costs, incurred in connection with the provision of the Omitted Services. The Parties shall document any such addition of an Omitted Service in

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a Service Schedule. Such Service Schedule shall describe in reasonable detail the nature, scope, Service Term and other terms applicable for any such Omitted Services. Each such Service Schedule shall be deemed part of this TSA as of the date of such agreement and the Omitted Services set forth therein shall be deemed “Services” provided under this TSA, in each case subject to the terms and conditions of this TSA.

3.1.3 Service Adjustments. After the Distribution, if Service Provider or Service Recipient desires to adjust any Services or change the manner in which Services are provided (such adjustments and changes other than the addition of Omitted Services, “Service Adjustments”), then such Service Provider or Service Recipient, as applicable, will provide a written change request (in the form agreed to by the Parties) to the other Party, and the Parties shall negotiate in good faith to make such Service Adjustments; provided, however, that Service Provider shall not be obligated to provide any Service Adjustment if the Service Provider and Service Recipient are unable to reach agreement on the terms thereof (including with respect to compensation therefor) unless such Service Adjustment is required by a change in any Legal Requirements applicable to such Services. If the Parties agree to any Service Adjustment, then the Parties shall document such terms in an amendment to the applicable Service Schedule. Each amended Service Schedule, as agreed to in writing by the Parties, shall be deemed part of this TSA as of the date of such agreement and the Service Adjustments set forth therein shall be deemed “Services” provided under this TSA, in each case subject to the terms and conditions of this TSA.

3.2 Points of Contact; Disputes.

3.2.1 Points of Contact. With respect to the Services on a Service Schedule, each of Service Provider and Service Recipient has named a point of contact on such Service Schedule. Such points of contact shall be the initial points of contact with respect to any matters with respect to the day-to-day provision of such Services, including attempting to resolve any issues that may arise during the performance of such Services. Any reference in this TSA to the cooperation of the Parties, or the use of good faith efforts to negotiate between the Parties or any other contact or communication between the Parties, shall be deemed to be an obligation of such points of contact on behalf of the Parties and for communication to be, in the first instance, between the respective points of contact of Service Provider and Service Recipient and, if requested by a Party, the applicable functional leaders of each Party shall participate in such negotiation (e.g., if the Services subject to the Dispute (as defined below) concern IT, then the functional heads of the Parties for such IT services shall participate). The Parties’ points of contact and functional leaders shall perform their responsibilities as described above in a manner consistent with the Governance Framework, including with respect to governance structure, responsibilities, meeting cadence and reporting. If a material dispute arises that the points of contacts are not able to resolve within ten (10) Business Days (or such longer period as the points of contact may mutually agree), the terms in Section 3.2.2 shall apply. The points of contact may delegate authority to other Service Provider or Service Recipient personnel (as applicable) to act as initial points of contact with respect to certain Services or categories of Services as appropriate; provided that such personnel shall be of sufficient authority to be able to make decisions in the ordinary course under this Agreement and to serve as an effective channel for escalations.

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3.2.2 Disputes. Subject to and without prejudice to either Party’s right to seek immediate specific performance at any time, in the event of any material dispute between the Parties relating to the Services or this TSA that is not resolved by the Parties’ respective points of contact (“Dispute”), the points of contact may escalate the Dispute to senior management of the Parties, which for WDC shall initially be [•], and for Spinco shall initially be [•]. Within five (5) Business Days of the receipt by a Party of a notice from the other Party of the existence of a Dispute (the “Dispute Notice”), the receiving Party shall submit a written response to the other Party (the “Dispute Response”). Both the Dispute Notice and the Dispute Response shall include (i) a statement of the disputing Party’s position with regard to the Dispute and a summary of arguments supporting that position; and (ii) the name and title of the senior executive who will represent that Party in attempting to resolve the Dispute pursuant to this Section 3.2.2. Within five (5) Business Days of receipt of the Dispute Response, the designated executives shall meet (including by teleconference or video conference) and attempt to resolve the Dispute. All communications made in connection with this clause shall be protected to the same extent as provided in Rule 408 of the Federal Rules of Evidence, confidential and shall not be referred to, or admissible for any purpose, in any subsequent proceedings. If any Dispute is not resolved within twenty (20) Business Days of receipt of the Dispute Notice (or within such longer period as to which the Parties have agreed in writing), then the Parties may pursue all available remedies in accordance with Section 12.5. Each Party agrees that it will, unless otherwise directed or if rendered impracticable by the other Party, continue performing its other undisputed obligations under this TSA while any dispute is being resolved until the expiration or termination of the Agreement Term, and any disputed Service shall continue to be provided by the Service Provider unless suspended for non-payment in accordance with Section 4.5 or an act or omission of Service Recipient directly or indirectly renders such disputed Service impracticable to reasonably perform.

SECTION 4. Compensation.

4.1 Compensation for Services. Subject to the terms and conditions in this TSA, the compensation to be paid by Service Recipient to Service Provider for each Service set forth in a Service Schedule during the Agreement Term (as defined below) shall equal the Fees set forth in the applicable Service Schedule with respect to such Service. Subject to any thresholds set forth in the Service Schedules, a Party may request that Fees for a particular Service (less any administrative mark-up or, if applicable, extension-related escalator) be adjusted to more closely reflect the actual costs being incurred to provide such Service. The Parties shall discuss such request in good faith, but Fees shall not be adjusted unless mutually agreed by the Parties. Except as otherwise set forth in a Service Schedule, for any Service where the price for the Service is expressed as a time-based rate (such as a specified dollar amount per month), if such Services are provided for only a portion of the specified time period, the Services will be deemed provided for the full time period for purposes of determining the Fees under this TSA.

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4.2 Out-of-Pocket Costs and Expenses. Unless otherwise set forth on a Service Schedule, the Fees set forth in the Service Schedules are exclusive of any third-party costs that may be incurred by Service Provider or any of its Affiliates to provide such Services in the ordinary course. Such third-party costs may include (a) expenses related to travel (including long-distance and local transportation, accommodation and meal expenses and other incidental expenses) of Service Provider’s or its Affiliates’ personnel incurred to provide the Services to the extent such expenses are reimbursable under the then-existing policies of Service Provider or its Affiliates, (b) all third-party consultant and third-party service provider fees incurred to provide the Services and (c) any other incremental out-of-pocket, third-party costs incurred to provide the Services (collectively, such incremental out-of-pocket costs, the “Out-of-Pocket Costs”). All of the foregoing shall be charged and invoiced by Service Provider to Service Recipient on a straight pass-through basis, monthly in arrears in accordance with Section 4.4; provided, however, that the aggregate amount of any third-party costs, including Out-of-Pocket Costs, payable by Service Recipient hereunder shall not exceed $50,000 per month without the prior written consent of Service Recipient, which consent shall not be unreasonably withheld, conditioned or delayed.

4.3 Taxes. The Fees set forth in the Service Schedules are exclusive of Taxes. Service Recipient will pay and be liable for any and all sales, service, value added or similar Taxes imposed on, sustained, incurred, levied and measured by: (a) the cost, value or price of Services provided by Service Provider under this TSA; or (b) Service Provider’s cost in acquiring property or services used or consumed by Service Provider in providing Services under this TSA (collectively, the “Sales and Service Taxes”); provided, however, that (a) in the case of any value-added Taxes, Service Recipient shall not be obligated to pay such Taxes unless Service Provider has issued to Service Recipient a valid value-added Tax invoice in respect thereof, and (b) in the case of all Sales and Service Taxes, Service Recipient shall not be obligated to pay such Taxes if and to the extent Service Recipient has provided any valid exemption certificates or other applicable documentation that would eliminate or reduce the obligation to collect or pay such Taxes, to the extent permitted by applicable law. Sales and Service Taxes payable by Service Recipient but required to be remitted by Service Provider shall be reimbursed by Service Recipient to Service Provider (who shall remit such amounts to the appropriate taxing authority) in accordance with Section 4.4 or as otherwise mutually agreed in writing by the Parties. At Service Recipient’s reasonable request and at Service Recipient’s expense, the Parties shall cooperate in good faith to reduce or eliminate any Sales and Service Taxes; provided, further, that, (x) Service Provider will, at Service Recipient’s reasonable request and at Service Recipient’s expense, reasonably cooperate with Service Recipient in Service Recipient’s pursuit of the refund of any Sales and Service Taxes, and (y) in the event that Service Provider receives a refund of any Sales and Service Taxes previously remitted to an appropriate taxing authority, Service Provider shall promptly surrender such refund to Service Recipient.

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4.3.1 Each of Service Provider and Service Recipient shall pay and be responsible for all other Taxes applicable to each of them, including Taxes based on their own respective net income or profits or assets.

4.3.2 Payments for Services or other amounts under this TSA shall be made net of any required withholding, and to the extent such required amount is withheld or deducted and paid over to the applicable taxing authority, such amount shall be treated for all purposes of this TSA as having been paid to the Person in respect of which such withholding or deduction was made. Notwithstanding the foregoing, if Service Provider reasonably believes that a reduced rate of withholding applies or Service Provider is exempt from withholding, then Service Provider will notify Service Recipient and Service Recipient will, to the extent permitted by applicable law, apply such reduced rate of withholding or no withholding at such time as Service Provider has provided Service Recipient with evidence reasonably satisfactory to Service Recipient that a reduced rate of or no withholding is required (and that all necessary administrative provisions or requirements have been completed). The Parties shall cooperate in good faith to reduce or eliminate the need to withhold with respect to payments under this TSA. Service Recipient shall timely remit any amounts withheld to the appropriate taxing authority and shall provide Service Provider with a receipt or other documentation evidencing such payment, including the amount paid and the applicable taxing authority to which payment was made. Service Recipient shall not be required in any circumstances to pursue any refund of Taxes withheld and paid over to a taxing authority; provided, however, that (a) Service Recipient will, at Service Provider’s reasonable request and at Service Provider’s expense, cooperate with Service Provider in Service Provider’s pursuit of such refund of Taxes, and (b) in the event that Service Recipient receives a refund of any amounts previously withheld from payments to Service Provider and remitted, Service Recipient shall promptly surrender such refund to Service Provider.

4.3.3 Each of Service Provider and Service Recipient shall promptly notify the other of any deficiency claim or similar notice by a taxing authority with respect to Sales and Service Taxes or withholding on any amount payable under this TSA, and shall provide the other with such information as reasonably requested from time to time, and shall fully cooperate with the Service Provider or Service Recipient, as applicable, in connection with: (a) the reporting of such Sales and Service Taxes or withholding; (b) any audit relating to such Sales and Service Taxes or withholding; and (c) any assessment, refund, claim or proceeding relating to such Sales and Service Taxes or withholding.

4.3.4 Except as otherwise specifically provided in this TSA, Tax matters shall be exclusively governed by the Tax Matters Agreement, and in the event of any inconsistency between the Tax Matters Agreement and this TSA, the Tax Matters Agreement shall control. The procedures relating to indemnification for Tax matters shall be exclusively governed by the Tax Matters Agreement.

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4.4 Terms of Payment. Within fifteen (15) days following the end of each month where Services are provided, Service Provider will invoice Service Recipient for the applicable Fees of each Service provided in such month according to the Fee schedule set forth in the applicable Service Schedule together with, subject to the last sentence of Section 4.2, any Out-of-Pocket Costs, and, subject to Section 4.3, Sales and Service Taxes. Service Provider shall include in such invoices, in reasonable detail, the additional amounts, such as Sales and Service Taxes and/or Out-of-Pocket Costs incurred in such month, that are payable in addition to the prices for the Services. Within ninety (90) days after receipt of an invoice submitted in good faith or, if the Service Recipient issues payments on a monthly basis (“Monthly Payment Cycle”), on the date of the next Monthly Payment Cycle following ninety (90) days after receipt of such invoice, Service Recipient shall pay the undisputed amounts in such invoice by wire transfer in immediately available funds (or such other means as the Parties may mutually agree in writing). All amounts due for Services rendered pursuant to this TSA shall be billed and paid in United States dollars or the applicable currency for such Services set forth on the applicable Service Schedule hereto.

4.5 Late Payment. In the event that Service Recipient fails to timely pay any invoiced amounts not subject to a pending dispute pursuant to and in accordance with Section 4.4, Service Provider may suspend performance of the particular Service (and, if applicable, its related Bundled Services) for which payment has not been timely received after providing twenty (20) Business Days’ written notice of non-payment, such notice to be provided to Service Recipient senior management set forth in Section 3.2.2. In the event a good faith dispute is raised by Service Recipient during such twenty (20) Business Days period, the provisions of Section 3.2.1 and Section 3.2.2 shall apply. Service Provider’s right to suspend performance of a particular Service for failure to make timely payment in accordance with Section 4.4 and this Section 4.5 are in addition to the rights set forth in Section 5.5.

SECTION 5. Term and Termination.

5.1 Term of TSA and Services. Except as expressly provided otherwise in this Section 5 or elsewhere in this TSA or in the Service Schedule, the term of this TSA shall commence at the Effective Time and end at 11:59 p.m. Pacific Time on the date that is two (2) years after the Effective Date (such period, the “Agreement Term”). Service Provider (or its Affiliates) shall provide each of the Services for the Service Term set forth in the Service Schedule for such Service (plus any extension pursuant to Section 5.2). If the Service Schedule for a Service does not set forth a Service Term, the Service Term for such Service shall end on the date that is six (6) months after the Effective Date. For the avoidance of doubt, in no event will Service Provider or any of its Affiliates be required to provide a Service beyond its Service Term (as it may be extended in accordance with Section 5.2). The Parties acknowledge and agree that it is their objective to have all Services and all related transition activities completed as soon as possible, with the stated goal of accelerating transition activities, where practical.

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5.2 Service Term Extension. Notwithstanding anything to the contrary in this TSA, or the Service Schedules, in no event shall Service Provider or any of its Affiliates have any obligation to provide any Services beyond the Agreement Term. Subject to the foregoing, Service Recipient may upon written notice of no less than sixty (60) days (or, solely with respect to Services with initial Service Terms that are three (3) months or less, thirty (30) days) prior to the end of the then-current Service Term request an extension of such Service Term. Upon receipt of a timely request for the extension of a Service Term in accordance with this Section 5.2, solely for any Service which is not designated as “Non-extendable” in the Service Schedules, the applicable Service Term shall be extended for a single extension period of three (3) months or such shorter period set forth in such request; provided that (a) as set forth on the Service Schedules, a surcharge shall be added to the Fees payable by Service Recipient for such extended Service, (b) any consents required in connection with extending a Service shall be sought by Service Provider in accordance with this TSA and (c) if Service Recipient requests to extend a Service that is interdependent with other Services, as indicated in the Service Schedule for such Service (any Services so indicated in their respective Service Schedules as being interdependent, “Bundled Services”), then Service Recipient must also extend such interdependent Services, to the extent necessary.

5.3 Termination of Individual Services by Service Recipient for Convenience. Service Recipient may, at any time after the Effective Date, terminate any individual Service provided under this TSA on a Service-by-Service basis upon written notice to Service Provider identifying the particular Service or Bundled Services to be terminated and the effective date of such termination (“Termination Notice”), which date shall not be earlier than sixty (60) days after Service Provider’s receipt of such Termination Notice, unless Service Provider otherwise agrees in writing. Notwithstanding the foregoing, except with the prior written consent of Service Provider, Service Recipient shall not be able to terminate any individual Service that is a Bundled Service or for which there are any other Bundled Services, without also terminating its Bundled Services. If Service Recipient has requested termination of any particular Service or Bundled Services and has not withdrawn such request pursuant to Section 5.3.1, Service Provider shall have no obligation to provide such Service or Bundled Services after the applicable date of termination of such Service or Bundled Services.

5.3.1 Service Recipient shall reimburse Service Provider for Early Termination Costs, if any, and if and to the extent set forth on the Service Schedules, resulting from any such early termination, and Service Provider shall use commercially reasonable efforts to mitigate any such Early Termination Costs; provided that, within thirty (30) days after Service Recipient’s written request identifying the applicable Services and expected termination dates, Service Provider shall provide to Service Recipient a good faith estimate of the amounts of Early Termination Costs resulting from such early termination of such Services and Service Recipient may withdraw its request to terminate such Services no later than five (5) days after Service Provider provides such estimate.

5.4 Termination of Agreement. This TSA shall terminate on the earliest to occur of: (a) the last date of the Agreement Term; (b) the date on which the provision of all Services have been completed or terminated pursuant to Section 5.3; and (c) the date on which this TSA is terminated pursuant to Section 5.6.

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5.5 Termination for Cause. Subject to Section 6.3, if either Party materially breaches this TSA and such Party does not cure such breach within twenty (20) Business Days after the later of (a) receiving reasonably detailed written notice thereof from the non-breaching Party and (b) completion of a dispute resolution procedure with respect to such breach in accordance with Section 3.2.2, the non-breaching Party may terminate this TSA, in whole or in part with respect to the Service(s) to which the breach relates and any Bundled Service(s), immediately following the expiration of such twenty (20)-day period by providing written notice of termination to the Party in breach. Notwithstanding the foregoing, if any such material breach is not reasonably curable within twenty (20) Business Days, but the breaching Party has (i) provided, within the twenty (20) Business Days period after written notice has been delivered, a remedial plan to cure such breach that is reasonably satisfactory to the non-breaching Party, and (ii) is making a bona fide effort to cure such breach in accordance with such plan; then such termination may be delayed upon mutual agreement for a time period to be agreed by both Parties in order to permit the breaching Party a reasonable period of time to cure such breach. In connection with any breach or alleged breach due to late payment, this Section 5.5 shall not limit the provisions of Sections 4.4–4.5.

5.6 Termination Upon Insolvency. This TSA may be terminated, effective immediately upon written notice, by either Party if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law or makes or seeks to make a general assignment for the benefit of its creditors or applies for or consents to the appointment of a trustee, receiver or custodian for it or a substantial part of its property.

5.7 Effect of Termination; Survival. In the event of the expiration or any termination of this TSA, Service Provider shall be entitled to all amounts due for the provision of Services rendered prior to the date of termination and such amounts will be determined in accordance with the prices set forth in the applicable Service Schedule(s) and will be invoiced and paid by Service Recipient in accordance with the terms in this TSA. The following Sections shall survive the termination or expiration of this TSA: Section 1 and Section 2 (in each case as necessary to interpret any surviving provision hereunder), Section 4 (solely with respect to amounts accrued prior to the termination or expiration of this TSA), this Section 5.7, Section 6.8, Section 6.10, Section 6.13, Section 8.2, Section 9, Section 10, Section 11, and Section 12.

SECTION 6. Certain Covenants.

6.1 Standard for Service. Subject to the terms and conditions of this TSA (including Section 6.3), Service Provider agrees (a) to perform (or to cause its applicable Affiliate(s) or third-party service provider(s) to perform) any Services that it provides hereunder at substantially the same levels as those Services were

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provided by Service Provider as of immediately prior to the Closing without giving effect to modification of business practice due to preparation for the Separation and with substantially the same quality of service, degree of care and level of service at which the same or similar services were provided by or on behalf of such Service Provider as of immediately prior to Closing or, if not so previously provided, then substantially similar to those which are applicable to similar services provided to Service Provider’s Affiliates or other business units and (b) upon receipt of written notice from Service Recipient identifying any outage, interruption or other failure of a Service, to respond to such outage, interruption or other failure of such Service in a manner that is substantially similar to the manner in which such Service Provider or its Affiliates responds with respect to internally provided services. The Parties acknowledge that an outage, interruption or other failure of any Service shall not be deemed a breach of this Section 6.1 so long as the applicable Service Provider complies with the foregoing clause (b).

6.2 No Violation of Laws. Neither Service Provider nor its Affiliates (nor third-party service providers) shall be required to provide all or any part of any particular Service or Services to the extent that providing such Service or Services would require (based on the advice of counsel) Service Provider or its Affiliates to violate any applicable Legal Requirements. If Service Provider is or becomes aware of any such potential violation (as determined based on the advice of counsel) on the part of such Service Provider, such Service Provider shall promptly send a written notice to Service Recipient of any such potential violation. Upon Service Recipient’s request and at Service Recipient’s cost and expense, Service Provider shall use commercially reasonable efforts to try to perform the affected Service in a manner that would not violate the applicable Legal Requirement.

6.3 Cooperation. It is understood that it will require significant efforts of all Parties to implement this TSA and to ensure performance hereunder at the agreed-upon level and on the agreed-upon timeframe (subject to all the terms and conditions of this TSA). The Parties will reasonably cooperate (acting in good faith) to effect a smooth and orderly transition of the performance of the Services provided hereunder from Service Provider and its Affiliates to Service Recipient and/or its Affiliates (including, as may be agreed by the Parties, with respect to the assignment or transfer of the rights and obligations under any third-party contracts relating to the Services). Such cooperation shall include the provision of such reasonable access to each Party to the other Party’s personnel and records as shall be reasonably necessary to facilitate the transition of the Services, including reasonable administrative support and general assistance with knowledge transfer from Service Provider and at the Service Recipient’s cost (or if such conduct or activity is included in a Service, then at the cost set forth therefor in the Service Schedule). In addition, Service Recipient and its Affiliates shall not take any action (or fail to take any action) that would interfere with the ability of Service Provider or its Affiliates to provide the Services or that would materially increase the Fees therefor (without an undertaking by the Service Recipient to cover such increase). If a failure of Service Recipient to act in accordance with this Section 6.3 prevents or inhibits the provision of a Service hereunder, Service Provider or its Affiliates shall be relieved of its obligations to provide such Service, to the extent affected until the failure has been remedied.

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6.4 Means of Providing Services.

6.4.1 Subject to Section 3.1.3 and Section 6.1 and Service Provider’s obligation to perform the Services in accordance with the terms of this TSA and the Service Schedule, Service Provider shall determine the means and resources used to provide the Services. Without limiting the foregoing, Service Provider or its Affiliates may elect to modify or replace at any time (a) its policies and procedures; (b) any Affiliates and/or third parties that provide any Services; (c) the location from which any Service is provided; or (d) the intellectual property rights, information technology, products and services used to provide the Services.

6.4.2 Service Recipient acknowledges that Service Provider may be providing similar services, and/or services that involve the same resources as those used to provide the Services, to its internal organizations, Affiliates and to third parties, and the provision of such similar services, in and of itself, shall in no way be deemed to be a breach of Service Provider’s obligations hereunder.

6.4.3 Subject to Section 6.1 and any limitations with respect to outages specified in any Service Schedule, Service Provider or its Affiliates may suspend the provision of the Services (or any part thereof), from time to time, to enable the performance of routine or emergency maintenance to the assets used in connection with the provision of the Services that are required to provide the Services; provided that (a) Service Provider shall provide Service Recipient with reasonable prior notice of such suspension and the anticipated duration of the suspension, in each case to the extent practicable; and (b) Service Provider shall use commercially reasonable efforts to carry out the applicable maintenance and resume the provision of the applicable Services as soon as reasonably practicable.

6.5 Authorized Service Providers. Except as otherwise specified in a Service Schedule with respect to the Services under such Service Schedule, but without limiting the obligations of the Service Provider under Section 6.1, Service Provider or any of its Affiliates may, as it deems necessary or appropriate in providing the Services, (a) use the personnel of Service Provider or its Affiliates (it being understood that such personnel can perform the Services on behalf of Service Provider or its Affiliates on a full-time or part-time basis, as reasonably determined by Service Provider or its Affiliates in accordance with the obligations under this TSA relating to the provision of the Services, including Section 6.1); (b) employ the services of third parties who are in the business of providing such Services; provided that (i) Service Provider’s use of a third party to perform the Services does not relieve Service Provider of its obligations pursuant to this TSA including with respect to Section 6.1, even during any transition of Services from Service Provider to such third party and (ii) Service Provider shall use the same degree of care in selecting any such third party as it would if such third party were being retained to provide similar services to Service Provider, but in no event less than a reasonable degree of care; or (c) require the assignee or transferee of Service Provider or its Affiliates of the relevant personnel or assets pursuant to Section 12.8 to provide the applicable Services.

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6.5.1 In performing the Services, employees and representatives of Service Provider and its Affiliates shall, as between the Parties, be under the direction, control and supervision of Service Provider or its Affiliates (and not Service Recipient) and, as between the Parties, Service Provider or its Affiliates shall have the sole right and obligation to exercise all authority and control with respect to the employment (including termination of employment), assignment and compensation of such employees and representatives. Service Recipient acknowledges and agrees that, except as set forth on the Service Schedules, it has no right hereunder to require that Service Provider or its Affiliates perform the Services hereunder with specifically identified employees or, subject to clause (b) of Section 6.5, above, third parties and that the assignment of employees or, subject to clause (b) of Section 6.5, above, third parties to perform such Services shall be determined in the sole discretion of Service Provider; provided that if Service Provider intends to transition performance of a Service to a third party that is being performed by its or its Subsidiaries’ employees, Service Provider shall provide Service Recipient ten (10) Business Days’ prior written notice of such transition; provided, further, that Service Provider will use commercially reasonable efforts to limit the disruption to Service Recipient in the transition of the Services to different personnel (whether employees or third parties).

6.6 Relationship of the Parties. Nothing contained in this TSA shall be construed as creating a partnership, joint venture, joint employer, agency, trust or similar relationship among or between the Parties, each Party being individually responsible only for its obligations as set forth in this TSA. Service Provider and its Affiliates shall provide the Services hereunder in the capacity of an independent contractor and not as an employee, agent or joint venture counterparty of Service Recipient. Without limiting the foregoing, (a) Service Recipient shall not have, or hold itself out as having, any power or authority to bind Service Provider to any contract, undertaking or other engagement with any third party and (b) Service Provider shall not have, or hold itself out as having, any power or authority to bind Service Recipient to any contract, undertaking or other engagement with any third party.

6.7 Treatment of Employees.

6.7.1 Except as set forth in any Service Schedule, the Employee Matters Agreement or any other Ancillary Agreement, employees of Service Recipient involved in the receipt of the Services shall remain as the employees of Service Recipient, and Service Recipient shall be solely responsible for the payment and provision of all wages, bonuses, severance, workers’ compensation insurance, unemployment insurance, employment taxes, commissions and employee benefit plans, programs or arrangements relating to such employees.

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6.7.2 Except as set forth in the Employee Matters Agreement or any other Ancillary Agreement, employees of Service Provider and its Affiliates involved in the provision and administration of the Services shall remain as the employees of Service Provider and its Affiliates, and Service Provider and its Affiliates shall be solely responsible for the payment and provision of all wages, bonuses, severance, workers’ compensation insurance, unemployment insurance, employment taxes, commissions and employee benefit plans, programs or arrangements relating to such employees.

6.8 No Violation of Third-Party Agreements. If Service Provider reasonably believes that the provision of any Services will result in a violation of any third-party agreement or that a third party’s consent, authorization or approval is necessary to provide the Services, then Service Provider will notify Service Recipient and the Parties shall cooperate in good faith to procure for Service Recipient, at Service Recipient’s cost and expense, any applicable licenses, enter into any appropriate agreement or obtain the necessary consent, authorization or approval in order to allow the Services to be provided in accordance with the terms set forth herein. All costs incurred as a result of the cooperation of the Parties pursuant to the immediately preceding sentence shall be borne by Service Recipient, except for any costs associated with any third-party consent, approval, license, agreement or other authorization that Service Provider reasonably should have known prior to Closing would be necessary (which costs shall be borne by Service Provider).

6.9 Information Provided by Service Recipient. Service Recipient will provide (or will cause to be provided) to Service Provider complete and accurate data and information to the extent available to the Service Recipient and to the extent necessary for Service Provider or its Affiliates to provide the Services. Service Provider and its Affiliates may rely on the completeness and accuracy of such data and information in connection with the provision of the Services to Service Recipient. Neither Service Provider nor its Affiliates will be liable or responsible for any failure to provide a Service in compliance with this TSA as a result of such data or information provided by Service Recipient being incomplete or inaccurate and Service Recipient will be responsible and liable therefor.

6.10 No License. Without limiting any rights granted under the SDA (or any Ancillary Agreement other than this TSA thereunder), Service Provider and its Affiliates are not granting, and nothing hereunder shall be deemed to grant, any license under any intellectual property or proprietary rights of Service Provider and its Affiliates, and Service Provider and its Affiliates shall retain all right, title and interest in and to all such intellectual property and proprietary rights.

6.11 Import/Export.

6.11.1 With respect to all transactions for which Service Provider will provide Services pursuant to this TSA, Service Recipient shall be solely responsible for compliance by it with respect to the carrying out of its obligations hereunder with all applicable U.S. and non-U.S. laws and regulations relating to export controls, sanctions and imports, including the Export Administration Regulations (“EAR”) maintained by the

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U.S. Department of Commerce’s Bureau of Industry and Security, sanctions laws administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control or by the U.S. Department of State, and import regulations administered by U.S. Customs and Border Protection. Service Recipient and Service Provider shall use commercially reasonable means to supply each other on a timely basis with documentation and assistance required to complete the export and/or importation process associated with the provision or receipt of Services, as applicable. Any performance obligation arising under this TSA is contingent upon prior receipt by Service Recipient and/or its Affiliates of all necessary government authorization, and Service Provider shall not be liable for any breach, non-performance or delay in performance resulting from the failure by Service Recipient or its Affiliates to obtain any such authorization. Notwithstanding the terms of Section 10 of this TSA, Service Recipient agrees to reimburse Service Provider for reasonable and documented out-of-pocket expenses actually incurred by Service Provider for responding to any government-initiated audit related to export and/or import transactions, including the cross-border provision of services under this TSA. Notwithstanding Section 10, Service Recipient shall be liable for any surcharges, penalties or damages assessed or incurred for violations of sanctions, export and/or import-related laws and regulations applicable to transactions for which Service Provider will provide Services under this TSA, except for violations caused by any deliberate and willful act or omissions of Service Provider.

6.11.2 Notwithstanding the foregoing, Service Provider shall not be required to undertake or perform any obligation set forth in Section 6.11.1 if Service Provider (or one of its Affiliates) did not undertake or perform the applicable activity prior to Closing and Service Provider shall not be responsible for undertaking or performing any such obligation to a greater degree and extent than, or for incurring any expenses in connection therewith greater than, that undertaken, performed or incurred prior to Closing.

6.12 Transition Planning. Service Recipient shall, as soon as reasonably practicable following the Effective Date, and in any event no later than [•], provide in writing to Service Provider a draft transition plan with respect to transfer or termination of the Services (the “Transition Plan”), which Transition Plan shall describe Service Recipient’s proposed transition activities and any transition assistance Service Recipient requests from Service Provider in connection with such transfer or termination. Service Provider will review and comment on the Transition Plan and the Parties shall reasonably cooperate with each other to create a final Transition Plan. The Transition Plan shall provide for a completion date that is no later than the last date of the Agreement Term. Without limiting the obligations of the Service Provider under an applicable Service Schedule, the Service Provider shall reasonably cooperate with and offer such commercially reasonable assistance to the Service Recipient at Service Recipient’s cost as set forth therefor in the Service Schedule (or if not set forth in the Service Schedule, then at Service Recipient’s cost), as is necessary to implement the Service Recipient’s final Transition Plan and the transfer of responsibility for the provision of the Services to Service Recipient or a new provider.

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6.13 Ownership of Business Data. For the purposes of this TSA, the term “Business Data” shall mean any and all business, accounting, personnel and customer-related data or other similar records, data and information, in each case, to the extent exclusively related to the business of Service Recipient that is generated, collected or serviced in connection with the Services (including data that is associated with the services set forth on a Service Schedule). The Parties hereby agree that any and all such Business Data shall be owned exclusively by the Service Recipient, and Service Provider (on its own behalf and on behalf of each of its Affiliates who may provide Services hereunder) hereby assigns and agrees to assign (and shall cause each Affiliate who provides Services hereunder) to Service Recipient all Intellectual Property Rights in such Business Data. Service Provider and its Affiliates shall not make any use of Business Data for any reason other than to provide Services hereunder or as required by applicable Legal Requirements.

SECTION 7. Force Majeure. Except for the obligation to pay for Services already provided, neither Party nor any of their respective Affiliates (nor any Person acting on its or their behalf) shall bear any responsibility or liability for any Losses arising out of any delay, inability to perform or interruption of its performance of obligations under this TSA due to events beyond the reasonable control of such Party, including acts of God, acts of Governmental Authority, acts of the public enemy or due to terrorism, war, epidemic, pandemic, riot, flood, civil unrest, insurrection, strike or labor difficulty, severe weather conditions, lack of or shortage of electrical power, systemic malfunctions of equipment or software programs or any other similar event outside of the reasonable control of Service Provider or its Affiliates or any applicable third-party service provider (any such cause or event, hereinafter referred to as a “Force Majeure Event”). In such event, the obligations hereunder of such Party in providing the impacted Service or performing its obligations under this TSA shall be suspended for such time as its performance is suspended or delayed on account thereof but only to the extent that the Force Majeure Event prevents such Party or its Affiliates from performing its duties and obligations hereunder. During the duration of the Force Majeure Event, such Party shall use all commercially reasonable efforts to avoid or remove such Force Majeure Event and shall use all commercially reasonable efforts to resume its performance under this TSA with the least practicable delay. A Force Majeure Event shall not toll or otherwise extend the Agreement Term. Service Recipient shall not be obligated to pay Service Provider for Services with respect to the period when Service Provider is not providing such Services due to a Force Majeure Event and Service Recipient waives all claims for damages related thereto.

SECTION 8. Representations and Warranties.

8.1 Authorization. Each of WDC and Spinco represents and warrants that (a) it has the requisite power and authority to execute and deliver this TSA and to perform the transactions contemplated hereby; (b) all corporate or limited liability company, as the case may be, action on the part of such party necessary to approve or to authorize the execution and delivery of this TSA and the performance

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of the transactions contemplated hereby to be performed by it has been duly taken; and (c) assuming the due execution hereof by the other Party hereto, this TSA is a valid and binding obligation of such party, enforceable in accordance with its terms, subject to the effect of principles of equity and the applicable bankruptcy, insolvency or other similar laws, now or hereafter in effect, affecting creditors’ rights generally and other customary qualifications.

8.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, EACH PARTY (ON BEHALF OF ITSELF AND ITS AFFILIATES) (A) ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE PROVIDED “AS IS,” (B) ASSUMES ALL RISKS AND LIABILITIES ARISING FROM OR RELATING TO ITS USE OF, AND RELIANCE UPON, THE SERVICES, AND (C) ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY OTHER TRANSACTION DOCUMENT, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SERVICES OR ANY FACILITIES, RESOURCES OR ITEMS TO BE DELIVERED OR PROVIDED TO SERVICE RECIPIENT OF ANY KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND SERVICE PROVIDER HEREBY EXPRESSLY DISCLAIMS THE SAME.

SECTION 9. Indemnification.

9.1 Service Recipient Indemnification Obligation. Subject to Section 10 of this TSA, Service Recipient shall defend, indemnify and hold harmless Service Provider and its Affiliates, and its and their respective directors, partners, officers, employees and agents (each, a “Service Provider Indemnified Party”), against any and all Losses suffered, sustained, incurred or paid arising from or relating to breach by Service Recipient of its obligations under this TSA.

9.2 Service Provider Indemnification Obligation. Subject to Section 10 of this TSA, Service Provider shall defend, indemnify and hold harmless Service Recipient and its Affiliates, and its and their respective directors, partners, officers, employees and agents (each, a “Service Recipient Indemnified Party”), against any and all Losses suffered, sustained, incurred or paid arising from or relating to breach by Service Provider of its obligations under this TSA.

9.3 Indemnification Notice and Procedures. The indemnification procedures set forth in [Sections 4.6–4.8 and Sections 4.10-11] of the SDA and the Tax Matters Agreement shall apply mutatis, mutandis to the indemnified and indemnifying parties hereunder as if fully set forth herein.

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SECTION 10. Limitation of Liability.

10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS TSA, EXCEPT FOR LOSSES ARISING FROM (A) ACTUAL AND INTENTIONAL FRAUD, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, AND (B) KNOWING AND INTENTIONAL VIOLATION OF APPLICABLE LAWS, NO PARTY (INCLUDING ITS RESPECTIVE AFFILIATES AND SUBCONTRACTORS, AS APPLICABLE) SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES, LOSS OF PROFITS, LOST OR ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY OR INJURY TO GOODWILL RELATING TO THE SAME AND ATTORNEY’S FEES) ARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT OR ANY OF THE SERVICES TO BE PROVIDED HEREUNDER OR THE PERFORMANCE OF OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE OR AN AUTHORIZED REPRESENTATIVE OF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND EXCLUDING AMOUNTS DUE UNDER SECTION 4, EXCEPT FOR LOSSES ARISING FROM (A) ACTUAL AND INTENTIONAL FRAUD, GROSS NEGLIGENCE AND WILLFUL MISCONDUCT, (B) KNOWING AND INTENTIONAL VIOLATION OF APPLICABLE LAWS, (C) BREACHES OF SECTION 11 (CONFIDENTIALITY), AND (D) INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), NO PARTY’S TOTAL LIABILITY (INCLUDING ITS RESPECTIVE AFFILIATES AND SUBCONTRACTORS’ LIABILITY, AS APPLICABLE) FOR LOSSES ARISING UNDER THIS TSA SHALL EXCEED THE AGGREGATE AMOUNT OF FEES PAID UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE OR AN AUTHORIZED REPRESENTATIVE OF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

SECTION 11. Confidentiality.

11.1 Duty of Confidentiality. With respect to any non-public information disclosed by a Party (or its Affiliates or representatives) (the “Disclosing Party”) to the other Party (or its Affiliates or representatives) (the “Receiving Party”) after Closing for the purpose of this TSA which non-public information is either marked or otherwise identified as confidential or proprietary or would reasonably be considered confidential or proprietary in light of the nature of the information (collectively, the “TSA Confidential Information”), the Receiving Party agrees that (i) it will keep such TSA Confidential Information confidential, using at least the

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same degree of care used to protect its own confidential or proprietary information, but not less than reasonable care, to prevent the disclosure or accessibility to others of the Disclosing Party’s TSA Confidential Information and (ii) it will use the Disclosing Party’s TSA Confidential Information only for the purpose of performing its obligations under this TSA. The Receiving Party shall limit dissemination of and access to the Disclosing Party’s TSA Confidential Information to only such of its Affiliates, advisers, employees, agents or contactors (including, in the case of Service Provider, any third party engaged to provide the Services hereunder) or consultants who have a need to know for the purpose of this TSA; provided that (1) any third party to which TSA Confidential Information is provided by a Receiving Party is subject to confidentiality and non-use obligations with respect to such TSA Confidential Information at least as protective as the obligations set forth herein and (2) the Receiving Party shall be responsible for any breach of such obligations by any such third party to the same extent as if the Receiving Party had breached its confidentiality and non-use obligations hereunder. The Parties’ confidentiality obligations with respect to non-public information of one Party in the possession of the other Party as of Closing shall be governed by the SDA and not this Section 11 of the TSA.

11.2 Exclusions. Specifically excluded from the foregoing obligations is any and all information that the Receiving Party can show: (a) is already known to the Receiving Party at the time of disclosure and is not subject to a confidentiality obligation; (b) was independently developed by the Receiving Party prior to disclosure, without breach of this TSA and without use of or reference to TSA Confidential Information in any way; (c) is already in the public domain at the time of disclosure, or thereafter becomes publicly known other than as the result of a breach by the Receiving Party of its obligations under this TSA; or (d) is rightfully obtained by the Receiving Party from a third party authorized to make such disclosure without restriction.

11.3 Required Disclosures. If, upon advice of counsel, any Disclosing Party’s TSA Confidential Information is required to be disclosed by applicable Legal Requirements by the Receiving Party, then the Receiving Party shall promptly notify the Disclosing Party and, insofar as is permissible and reasonably practicable, give the Disclosing Party an opportunity to appear and to object to such production before producing the requested information. Any such production shall be limited to that portion of the TSA Confidential Information required to be disclosed.

11.4 Destruction of TSA Confidential Information. Upon the termination or expiration of this TSA, or upon written request of a Party, other than as required by applicable Legal Requirements, each Party, as a Receiving Party, shall return or destroy the TSA Confidential Information of the Disclosing Party in such Receiving Party’s possession and provide a written certification of destruction (as applicable) with respect thereto to such Disclosing Party; provided, however, that neither Party shall be liable for breach of its obligations hereunder to the extent it cannot, as Service Provider, reasonably provide any Services without such TSA

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Confidential Information so requested by the other Party under this Section 11.4 to be destroyed. Notwithstanding the foregoing, a Party may retain copies of TSA Confidential Information stored in back-up/archival storage in accordance with its retention policies, provided that such Party shall continue to be bound by the obligations of confidentiality and non-use hereunder with respect to such TSA Confidential Information while it is in its possession.

11.5 System Security.

(a) In connection with the performance of its obligations or receipt of Services under this TSA, each Party shall comply with all requirements of applicable Privacy Laws (as such term is defined in the SDA) and any contractual obligations, binding industry standards and rules, self-regulatory standards that relate to privacy, information security or data protection in relation to this TSA.

(b) If either Party or its Affiliate (as the “Accessing Party”) is given access to the other Party’s or its Affiliates’ (the “Network Owner”) computer systems, networks, email systems, software, servers, routers, hubs, circuits, switches, data communications lines, storage, firmware, hardware, databases, Internet websites and all other equipment and systems (collectively, the “Systems”) in connection with the applicable Services, the Accessing Party shall comply with all of the Network Owner’s privacy and information security policies, procedures and requirements (collectively, “Security Regulations”), and shall not tamper with, compromise or circumvent any security or audit measures employed by the Network Owner. Further, the Accessing Party shall not convey, copy, license, sublicense, modify, translate, reverse engineer, decompile, disassemble, tamper with or create any derivative work based on such Systems, or transmit any data that contains software viruses, time bombs, worms, Trojan horses, spyware, disabling devices or any other malicious or unauthorized code to or through the Systems. The Accessing Party shall access and use only those Systems of the Network Owner for which it has been granted the right to access and use and shall use such Systems solely as necessary to provide or receive, as applicable, the Services hereunder.

(c) The Accessing Party shall ensure that only those personnel of the Accessing Party who are specifically authorized to have access to the Systems gain such access and prevent unauthorized access, use, destruction, alteration or loss of information, including Personal Data (as such term is defined in the SDA), contained therein, including notifying such personnel of the restrictions set forth in this TSA and the Security Regulations.

(d) If, at any time, an Accessing Party determines that any such personnel has sought to circumvent, or has circumvented, the Security Regulations, that any unauthorized personnel has or has had access to the Systems, or that any such personnel has engaged in activities that may lead to the unauthorized access, use, destruction, alteration or loss of data, information or software of a Network Owner, the Accessing Party shall immediately terminate any such Person’s access to the Systems and immediately notify the Network Owner. In addition, a Network Owner shall have the right to deny personnel of an Accessing Party access to the Systems upon notice to the Accessing Party

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in the event that the Network Owner reasonably believes that such personnel have engaged in any of the activities set forth above in this Section 11.5(d) or otherwise pose a security concern. Each Accessing Party shall cooperate with the applicable Network Owner in investigating any unauthorized access to the Systems.

(e) To the extent that a Party Processes Personal Data (as such terms are defined in the SDA) of or on behalf of the other Party, the Accessing Party shall not sell, retain, use or disclose the Personal Data for any purpose other than for the specific purposes for which access was granted, including retaining, using, or disclosing the Personal Data for a commercial purpose other than the purpose for which access was granted.

(f) Without prejudice to a Party’s obligations under Privacy Laws (as such term is defined in the SDA), each Party shall promptly, and in any event within [•], notify the other Party by email and by telephone to the other Party’s designated point of contact following the discovery of any Security Breach (as such term is defined in the SDA) that has materially impacted, or that the notifying Party reasonably expects will materially impact, the other Party. The notifying Party shall provide periodic, reasonable updates on the current status of the Security Breach and the remediation efforts taken by the notifying Party to resolve the Security Breach.

(g) The provisions of the [Data Processing Addendum] attached as Schedule [•] hereto shall govern the [Processing] of the [TSA Personal Data] (as such terms are defined in Schedule [•]) of the other Party in connection with the provision of the Services hereunder.

SECTION 12. Miscellaneous.

12.1 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (a) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid; (b) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; (c) if sent by email transmission prior to 6:00 p.m. recipient’s local time, upon transmission when receipt is confirmed; or (d) if sent by email transmission after 6:00 p.m. recipient’s local time, the Business Day following the date of transmission when receipt is confirmed:

If to WDC:

c/o Western Digital Corporation

[Address]

Attn: [•]

Email: [•]

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with a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue Suite 1400

Palo Alto, CA 94301

Attn: Thomas J. Ivey and Christopher J. Bors

Email: thomas.ivey@skadden.com and

christopher.bors@skadden.com

If to Spinco prior to the Distribution Date:

c/o Western Digital Corporation

[Address]

Attn: [•]

Email: [•]

with a copy to (which shall not constitute notice):

Skadden, Arps, Slate, Meagher & Flom LLP

525 University Avenue Suite 1400

Palo Alto, CA 94301

Attn: Thomas J. Ivey and Christopher J. Bors

Email: thomas.ivey@skadden.com and

christopher.bors@skadden.com

If to Spinco on or after the Distribution Date:

c/o Sandisk Corporation

[Address]

Attn: [•]

Email: [•]

with a copy to (which shall not constitute notice):

[•]

12.2 Entire Agreement. This TSA, including any schedules and amendments hereto and thereto, and the other agreements and documents referred to herein and therein, shall together constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall supersede all prior negotiations, agreements and understandings, both written and oral, between the Parties with respect to such subject matter hereof and thereof. The Service Schedules to this TSA shall be deemed incorporated in this TSA and shall form a part of it.

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12.3 Amendment and Waivers.

12.3.1 This TSA may be amended or supplemented in any and all respects and any provision of this TSA may be waived and any such waiver shall be binding upon a Party, only if such waiver is set forth in a writing executed by such waiving Party bound thereby, and any such amendment or supplement shall be effective only if set forth in a writing executed by each of the Parties; and any such waiver, amendment or supplement shall not be applicable or have any effect except in the specific instance in which it is given. No course of dealing between or among any Persons having any interest in this TSA shall be deemed effective to modify, amend or discharge any part of this TSA or any rights or obligations of any Party under or by reason of this TSA.

12.3.2 Notwithstanding the foregoing, no failure on the part of any Party to exercise any power, right, privilege or remedy under this TSA, and no delay on the part of any Party hereto in exercising any power, right, privilege or remedy under this TSA, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have. Any waiver, permit, consent or approval of any kind or character of any breach or default under this TSA or any such waiver of any provision of this TSA must satisfy the conditions set forth in Section 12.3.1 and shall be effective only to the extent in such writing specifically set forth.

12.4 Severability. Any term or provision of this TSA which is invalid or unenforceable in any situation in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this TSA in any other jurisdiction or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If any provision of this TSA is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. If a final judgment of a court of competent jurisdiction declares that any term or provision of this TSA is invalid or unenforceable, the Parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this TSA shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

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12.5 Governing Law; Specific Performance; Forum; Waiver of Jury Trial.

12.5.1 This TSA and the consummation of the transactions contemplated hereby, and any Action (whether at law, in contract, in tort or otherwise) arising out of or relating to this TSA and the consummation of the transactions contemplated hereby, or the negotiation, validity, interpretation, performance, breach or termination of this TSA and the consummation of the transactions contemplated hereby, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof. In addition, each of the Parties irrevocably agrees that, subject (except in the case of any legal action or proceeding seeking specific performance) to prior compliance with Section 3.2, any legal action or proceeding with respect to this TSA and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this TSA and the rights and obligations arising hereunder, brought by any other Party or its respective successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this TSA or any of the transactions contemplated by this TSA in any court other than the aforesaid courts. Each of the Parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this TSA: (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 12.5; (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise); and (c) to the fullest extent permitted by applicable Legal Requirements, any claim that: (i) the suit, action or proceeding in such court is brought in an inconvenient forum; (ii) the venue of such suit, action or proceeding is improper; or (iii) this TSA, or the subject matter hereof, may not be enforced in or by such courts (other than by reason of, except in the case of any action or proceeding for specific performance, needing to first comply with the provisions of Section 3.2). The Parties agree that service of any court paper may be made in any manner as may be provided under the applicable Legal Requirements or court rules governing service of process in such court. The Parties agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Legal Requirements. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS TSA OR THE TRANSACTIONS CONTEMPLATED HEREBY.

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12.5.2 Each of the Parties acknowledges and agrees that any other Party to this TSA would be damaged irreparably and suffer unreasonable hardship in the event that any term or provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached or violated. Accordingly, each of the Parties agrees that, any other Party may, by posting a bond or other undertaking, without regard to compliance with Section 3.2, seek an injunction or injunctions to prevent breaches or violations of the provisions of this TSA and to seek to enforce specifically this TSA and the terms and provisions hereof and thereof in any claim instituted in any court with jurisdiction over the Parties or their assets in addition to any and all other rights and other remedies at law or in equity and all such rights and remedies will be cumulative.

12.6 Construction.

12.6.1 For purposes of this TSA, whenever the context requires: (i) the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include masculine and feminine genders.

12.6.2 The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this TSA.

12.6.3 As used in this TSA, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

12.6.4 As used in this TSA, the words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import shall refer to this TSA as a whole and not to any particular provision of this TSA.

12.6.5 The measure of a period of one (1) month or year for purposes of this TSA will be the date of the following month or year corresponding to the starting date; and, if no corresponding date exists, then the end date of such period being measured will be the next actual date of the following month or year (for example, one month following February 18 is March 18 and one month following March 31 is May 1).

12.6.6 As used in this TSA, the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”

12.6.7 As used in this TSA, the word “will” shall be deemed to have the same meaning and effect as the word “shall.”

12.6.8 As used in this TSA, the terms “or,” “any” or “either” are not exclusive and shall be deemed to be “and/or.”

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12.6.9 As used in this TSA, references to “written” or “in writing” include in electronic form.

12.6.10 As used in this TSA, references to the “date hereof” are to the date of this TSA.

12.6.11 Except as otherwise indicated, all references in this TSA to “Sections,” “Articles” and “Schedules” are intended to refer to Sections or Articles of this TSA and Schedules to this TSA.

12.6.12 The section and other headings and subheadings contained in this TSA are for convenience of reference only, shall not be deemed to be a part of this TSA and shall not be referred to in connection with the construction, meaning or interpretation of this TSA. The preamble and the recitals set forth at the beginning of this TSA are incorporated by reference into and made a part of this TSA.

12.6.13 Unless otherwise stated in the Service Schedules, any payment to be made pursuant hereto shall be made in U.S. dollars and by wire transfer of immediately available funds.

12.6.14 As used in this Agreement, references to “U.S. dollars” and “$” in this report are to the lawful currency of the United States of America.

12.7 Counterparts. This TSA may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. This TSA may be executed and delivered by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means. The exchange of a fully executed agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

12.8 Assignability; Binding Effect. This TSA shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns. Neither this TSA nor any Party’s rights, interests or obligations hereunder may be assigned or delegated by any such Party, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other Parties; provided, however, that (a) Service Provider may freely assign its rights under this TSA, in whole or in part, and its rights and obligations hereunder (x) to an Affiliate of Service Provider, or (y) in connection with a sale or restructuring of any of its businesses or assets to which this TSA relates, (b) the rights of Service Recipient hereunder may be assigned in part for a relevant

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Service to its Affiliate who is the intended recipient of such Services and (c) any Party may assign this TSA in whole in connection with a merger transaction in which such party is not the surviving entity. Except as set forth in the preceding sentence, any attempted assignment or delegation of this TSA or any of such rights or obligations by any Party without the prior written consent of the other Party shall be void and of no effect. Except as set forth in Section 12.9, nothing in this TSA, express or implied, is intended to or shall confer upon any Person (other than the Parties and their permitted successors and assigns) any power, right, privilege or remedy of any nature whatsoever under or by reason of this TSA.

12.9 No Third-Party Beneficiaries. Except for the provisions of Section 9 with respect to indemnification of indemnified parties, which is intended to benefit and be enforceable by the Persons specified therein as indemnified parties, this TSA is solely for the benefit of the Parties and their respective successors and permitted assigns, and is not intended, and shall not be deemed, to (x) create any agreement of employment with any person, (y) confer on third parties (including any employee of the Flash Business, the Service Recipient or Service Provider) any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this TSA, or (z) otherwise create any third-party beneficiary hereto.

[SIGNATURE PAGES FOLLOW]

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WITNESS WHEREOF, the duly authorized officers or representatives of the parties to this TSA have duly executed this TSA as of the date first written above.

Exhibit 10.2

FORM OF

TAX MATTERS AGREEMENT

by and between

Western Digital Corporation

and

Sandisk Corporation

Dated as of [•]

TABLE OF CONTENTS

i

ii

EXHIBITS

iii

TAX MATTERS AGREEMENT

This TAX MATTERS AGREEMENT (this “Agreement”), is entered into as of [•], between Western Digital Corporation, a Delaware corporation (“WDC”) and Sandisk, a Delaware corporation (“Spinco” and, together with WDC, the “Parties”). Capitalized terms used in this Agreement and not otherwise defined herein shall have the meanings ascribed to such terms in the Separation and Distribution Agreement, dated as of the date hereof, by and between the Parties (the “Separation Agreement”).

R E C I T A L S

WHEREAS, WDC, directly and indirectly through its wholly owned Subsidiaries, is engaged in the Flash Business;

WHEREAS, the board of directors of WDC (the “WDC Board”) has determined that it is in the best interests of WDC and WDC’s stockholders to separate the Flash Business from the other businesses of WDC (the “Separation” and such other businesses, collectively, the “Non-Flash Business”) and divest the Flash Business in the manner contemplated by the Separation Agreement and Ancillary Agreements;

WHEREAS, Spinco has been incorporated for these purposes and has not engaged in activities except those incidental to its formation and in preparation for the Separation;

WHEREAS, in order to effect the Separation, WDC has undertaken and will undertake the Internal Restructuring and, in connection therewith, effect the Spinco Contribution and, in exchange therefor, Spinco shall (i) issue to WDC additional shares of Spinco Common Stock and (ii) pay the Spinco Dividend to WDC;

WHEREAS, on the terms and subject to the conditions set forth in the Separation Agreement, following the completion of the Internal Restructuring and Spinco Contribution and payment of the Spinco Dividend, WDC shall own all of the issued and outstanding shares of Spinco Common Stock and shall effect the distribution of 80.1% of such outstanding shares of Spinco Common Stock to the holders of WDC Common Stock in accordance with Section 3.1 of the Separation Agreement (the “Distribution”);

WHEREAS, following the Distribution, WDC shall undertake one or more Subsequent Distributions with respect to the Retained Stock, each as defined and set forth in the Separation Agreement;

WHEREAS, for U.S. federal income Tax purposes, (i) it is intended that the Spinco Contribution, taken together with the Distribution, qualifies for non-recognition of gain and loss pursuant to Sections 355, 361 and 368(a)(1)(D) of the Code and (ii) the Separation Agreement constitutes a “plan of reorganization” within the meaning of Section 368 of the Code and Treasury Regulations § 1.368-2(g); and

WHEREAS, the Parties desire to (a) provide for the payment of Tax liabilities and entitlement to refunds thereof, allocate responsibility for, and cooperation in, the filing of Tax Returns, and provide for certain other matters relating to Taxes and (b) set forth certain covenants and indemnities relating to the preservation of the Tax-Free Status of the Transactions.

NOW, THEREFORE, in consideration of the mutual agreements, provisions and covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

1.1 General. As used in this Agreement, the following terms shall have the following meanings:

“Accounting Firm” shall have the meaning set forth in Section 9.1.

“Action” shall have the meaning set forth in the Separation Agreement.

“Active Trade or Business” shall mean the active conduct (as defined in Section 355(b)(2) of the Code and the Treasury Regulations thereunder) of the Flash Business conducted by the Specified Spinco Group Member that is relied upon in the Tax Opinions for purposes of qualifying the Distribution, the First Internal Distribution, the Second Internal Distribution and the Third Internal Distribution as tax-free pursuant to Section 355 of the Code as set forth on Exhibit B hereto.

“Adjustment” shall mean an adjustment of any item of income, gain, loss, deduction, credit or any other item affecting Taxes of a taxpayer pursuant to a Final Determination.

“Affiliate” shall have the meaning set forth in the Separation Agreement.

“Agreement” shall have the meaning set forth in the preamble hereto.

“Ancillary Agreement” shall have the meaning set forth in the Separation Agreement.

“Business Day” shall have the meaning set forth in the Separation Agreement.

“Closing of the Books Method” means the apportionment of items between portions of a Tax Period based on a closing of the books and records on the close of the Distribution Date (in the event that the Distribution Date is not the last day of the Tax Period, as if the Distribution Date were the last day of the Tax Period), subject to adjustment for items accrued on the Distribution Date that are properly allocable to the Tax Period following the Distribution, except that in the case of any such Taxes attributable to an equity interest in any partnership or other “flowthrough” entity, the Taxes of the relevant owner of such equity interest shall be determined as if the Tax Period of such partnership or other “flowthrough” entity ended as of the close of business on the Distribution Date; provided that exemptions, allowances or deductions that are calculated on an annual basis (including, but not limited to, depreciation and amortization deductions) will be allocated between the period ending at the close of the Distribution Date and the period beginning after the Distribution Date in proportion to the number of days in each Tax Period.

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“Code” shall mean the Internal Revenue Code of 1986, as amended.

“Controlling Party” shall mean, with respect to a Tax Contest, the Party entitled to control such Tax Contest pursuant to Sections 6.2 and 6.3 of this Agreement.

“Distribution” shall have the meaning set forth in the recitals.

“Distribution Date” shall have the meaning set forth in the Separation Agreement.

“Distribution Taxes” means any Taxes incurred solely as a result of the failure of all or any portion of the Internal Restructuring, the Spinco Contribution or the Distribution to qualify for the Tax-Free Status of the Transactions.

“Employee Matters Agreement” shall have the meaning set forth in the Separation Agreement.

“Employment Tax” shall mean those Liabilities (as defined in the Separation Agreement) for Taxes which are allocable pursuant to the provisions of the Employee Matters Agreement.

“Excluded Asset” shall have the meaning set forth in the Separation Agreement.

“Excluded Liability” shall have the meaning set forth in the Separation Agreement.

“Final Determination” shall mean the final resolution of liability for any Tax for any Tax Period, by or as a result of (a) a final decision, judgment, decree or other order by any court of competent jurisdiction that can no longer be appealed, (b) a final settlement with the IRS, a closing agreement or accepted offer in compromise under Sections 7121 or 7122 of the Code, or a comparable agreement under the Laws of other jurisdictions, which resolves the entire Tax liability for any Tax Period, (c) any allowance of a refund or credit in respect of an overpayment of Tax, but only after the expiration of all periods during which such refund or credit may be recovered by the jurisdiction imposing the Tax, or (d) any other final resolution, including by reason of the expiration of the applicable statute of limitations or the execution of a pre-filing agreement with the IRS or other Taxing Authority.

“Flash Business” shall have the meaning set forth in the Separation Agreement.

“Group” shall mean either the Spinco Group or the WDC Group, as the context requires.

“Indemnifying Party” shall have the meaning set forth in Section 5.2.

“Indemnitee” shall have the meaning set forth in Section 5.2.

“Internal Restructuring” shall have the meaning set forth in the Separation Agreement.

“IRS” shall mean the United States Internal Revenue Service or any successor thereto, including, but not limited to its agents, representatives, and attorneys.

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“Joint Return” shall mean any Tax Return that actually includes, by election or otherwise, one or more members of the WDC Group together with one or more members of the Spinco Group.

“Law” shall have the meaning set forth in the Separation Agreement.

“Non-Controlling Party” shall mean, with respect to a Tax Contest, the Party that is not entitled to control such Tax Contest pursuant to Sections 6.2 and 6.3 of this Agreement.

“Non-Flash Business” shall have the meaning set forth in the recitals hereto.

“Parties” shall have the meaning set forth the in preamble hereto.

“Past Practices” shall have the meaning set forth in Section 3.5.

“Person” shall have the meaning set forth in the Separation Agreement.

“Post-Distribution Period” shall mean any Tax Period (or portion thereof) beginning after the Distribution Date, including for the avoidance of doubt, the portion of any Straddle Period beginning after the Distribution Date.

“Post-Distribution Ruling” shall mean a favorable private letter ruling from a Taxing Authority (including the IRS) to the effect that a transaction will not affect the Tax-Free Status of the Transactions.

“Pre-Distribution Period” shall mean any Tax Period (or portion thereof) ending on or before the Distribution Date, including for the avoidance of doubt, the portion of any Straddle Period ending at the end of the day on the Distribution Date.

“Preparing Party” shall mean, with respect to a Tax Return, the Party that is required to prepare and file any such Tax Return pursuant to this Agreement.

“Proposed Acquisition Transaction” shall mean a transaction or series of transactions (or any agreement, understanding or arrangement, within the meaning of Section 355(e) of the Code and Treasury Regulation Section 1.355-7, or any other regulations promulgated thereunder, to enter into a transaction or series of transactions), whether such transaction is supported by Spinco management or shareholders, is a hostile acquisition, or otherwise, as a result of which Spinco (or any successor thereto) would merge or consolidate with any other Person or as a result of which one or more Persons would (directly or indirectly) acquire, or have the right to acquire, from Spinco (or any successor thereto) and/or one or more holders of stock of Spinco, respectively, any amount of stock of Spinco, that would, when combined with any other direct or indirect changes in ownership of the stock of Spinco pertinent for purposes of Section 355(e) of the Code and the Treasury Regulations promulgated thereunder, comprise fifty percent (50%) or more of (i) the value of all outstanding shares of Spinco as of the date of such transaction, or in the case of a series of transactions, the date of the last transaction of such series, or (ii) the total combined voting power of all outstanding shares of voting stock of Spinco as of the date of the such transaction, or in the case of a series of transactions, the date of the last transaction of such series. For purposes of determining whether a transaction constitutes an indirect acquisition, any

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recapitalization or other transaction resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders. This definition and the application thereof is intended to monitor compliance with Section 355(e) of the Code and the Treasury Regulations promulgated thereunder and shall be interpreted accordingly. Any clarification of, or change in, the statute or Treasury Regulations promulgated under Section 355(e) of the Code shall be incorporated in this definition and its interpretation.

“Refund” shall mean any refund (or credit in lieu thereof) of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied against other Taxes payable), including any interest paid on or with respect to such refund of Taxes; provided, however, that the amount of any refund of Taxes shall be net of any Taxes imposed by any Taxing Authority on, related to, or attributable to, the receipt of or accrual of such refund, and shall further be net of all accounting, legal and other professional fees, and court costs incurred in connection with obtaining such refund, as well as any other out-of-pocket costs incurred in connection with obtaining such refund.

“Restricted Period” shall mean the period which begins with the Distribution Date and ends two (2) years thereafter.

“Reverse Carve-out Transaction” shall mean any sale, transfer, distribution, conveyance, assumption or other disposition of any Excluded Asset or Excluded Liability from any member of the Spinco Group to or by any member of the WDC Group pursuant to the Separation Plan.

“Reviewing Party” shall mean, with respect to a Tax Return, the Party that is not the Preparing Party.

“Separate Return” shall mean a WDC Separate Return or a Spinco Separate Return, as the case may be.

“Separation” shall have the meaning set forth in the recitals.

“Separation Agreement” shall have the meaning set forth in the preamble hereto.

“Separation Plan” shall have the meaning set forth in the Separation Agreement.

“Separation Time” shall have the meaning set forth in the Separation Agreement.

“Specified Spinco Group Member” shall mean SanDisk Storage Malaysia Sdn. Bhd.

“Spinco” shall have the meaning set forth in the preamble hereto.

“Spinco Common Stock” shall have the meaning set forth in the Separation Agreement.

“Spinco Contribution” shall have the meaning set forth in the Separation Agreement.

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“Spinco Disqualifying Action” means (a) any action (or the failure to take any action) by any member of the Spinco Group after the Distribution (including entering into any agreement, understanding or arrangement or any negotiations with respect to any transaction or series of transactions), (b) any event (or series of events) after the Distribution involving the capital stock of Spinco or any assets of any member of the Spinco Group or (c) any breach by any member of the Spinco Group after the Distribution of any representation, warranty or covenant made by them in this Agreement, that, in each case, would adversely affect the Tax-Free Status of the Transactions; provided, however, that the term “Spinco Disqualifying Action” shall not include any action required by any Ancillary Agreement (other than this Agreement) or that is undertaken pursuant to the Internal Restructuring, Spinco Contribution or Distribution.

“Spinco Dividend” shall have the meaning set forth in the Separation Agreement.

“Spinco Group” shall mean Spinco and each Person that will be a Subsidiary of Spinco as of immediately after the consummation of the Distribution.

“Spinco Separate Return” shall mean any Tax Return of or including any member of the Spinco Group (including any consolidated, combined or unitary return) that does not include any member of the WDC Group.

“Straddle Period” shall mean any taxable year or other Tax Period that begins on or before the Distribution Date and ends after the Distribution Date.

“Subsidiary” shall have the meaning set forth in the Separation Agreement.

“Tax” or “Taxes” shall mean (i) all taxes, charges, fees, duties, levies, imposts, rates or other assessments or governmental charges of any kind imposed by any federal, state, local or non-United States Taxing Authority, including, without limitation, income, gross receipts, employment, estimated, excise, severance, stamp, occupation, premium, windfall profits, environmental, custom duties, property, sales, use, license, capital stock, transfer, franchise, registration, payroll, withholding, social security, unemployment, disability, value added, alternative or add-on minimum or other taxes, whether disputed or not, and including any interest, penalties, charges or additions attributable thereto, (ii) liability for the payment of any amount of the type described in clause (i) above arising as a result of being (or having been) a member of any group or being (or having been) included or required to be included in any Tax Return related thereto, and (iii) liability for the payment of any amount of the type described in clauses (i) or (ii) above as a result of any express or implied obligation to indemnify or otherwise assume or succeed to the liability of any other Person.

“Tax Attribute” shall mean net operating losses, capital losses, research and experimentation credit carryovers, investment tax credit carryovers, earnings and profits, foreign tax credit carryovers, overall foreign losses, overall domestic losses, previously taxed income, separate limitation losses and any other losses, deductions, credits or other comparable items that could affect a Tax liability for a past or future Tax Period.

“Tax Certificates” shall mean any certificates of officers of WDC and/or Spinco, provided to Skadden, Arps, Slate, Meagher & Flom LLP or any other law or accounting firm in connection with any Tax Opinion issued in connection with the Internal Restructuring, Spinco Contribution or Distribution.

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“Tax Contest” shall have the meaning set forth in Section 6.1.

“Tax-Free Status of the Transactions” shall mean the qualification of (i) the Spinco Contribution and the Distribution, taken together, (a) as a reorganization described in Sections 368(a)(1)(D) and 355(a) of the Code, (b) as a transaction in which the stock distributed thereby is “qualified property” for purposes of Sections 355(c) and 361(c) of the Code, (c) as a transaction in which WDC will recognize no income or gain for U.S. federal income tax purposes with respect to the receipt of the Spinco Dividend by reason of Sections 355 and 361 of the Code, except to the extent the amount of the Spinco Dividend exceeds WDC’s adjusted tax basis in Spinco Common Stock and assuming WDC transfers to creditors or distributes to shareholders the cash received in the Spinco Dividend in pursuance of the plan of reorganization within the meaning of Section 361(b)(1) of the Code and (d) as a transaction in which WDC, Spinco and the holders of WDC Common Stock recognize no income or gain for U.S. federal income tax purposes pursuant to Sections 355, 361 and 1032 of the Code, other than, in the case of WDC and Spinco, intercompany items or excess loss accounts taken into account pursuant to the Treasury Regulations promulgated pursuant to Section 1502 of the Code and (ii) the transactions described on Exhibit B for the Tax treatment set forth therein.

“Tax-Free Status Tax Contest” shall have the meaning set forth in Section 6.4.

“Tax Item” shall mean any item of income, gain, loss, deduction, expense, or credit, or other attribute that may have the effect of increasing or decreasing any Tax.

“Tax Law” shall mean the law of any Taxing Authority or political subdivision thereof relating to any Tax.

“Tax Materials” shall have the meaning set forth in Section 4.1(a).

“Tax Matter” shall have the meaning set forth in Section 7.1.

“Tax Opinion” shall mean any written opinion of Skadden, Arps, Slate, Meagher & Flom LLP or any other law or accounting firm delivered to WDC, regarding certain tax consequences of certain transactions executed as part of the Internal Restructuring, Spinco Contribution and Distribution.

“Tax Period” shall mean, with respect to any Tax, the period for which the Tax is reported as provided under the Code or other applicable Tax Law.

“Tax Records” shall have the meaning set forth in Section 8.1.

“Tax-Related Losses” shall mean (i) all federal, state, local and foreign Taxes imposed pursuant to any settlement, Final Determination, judgment or otherwise; (ii) all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes, as well as any other out-of-pocket costs incurred in connection with such Taxes; and (iii) all costs, expenses and damages associated with stockholder litigation or controversies and any amount paid by WDC (or any of its Affiliates) or Spinco (or any of its Affiliates) in respect of the liability of shareholders, whether paid to shareholders or to the IRS or any other Taxing Authority, in each case, resulting from the failure of the Internal Restructuring, Spinco Contribution, Distribution, or any transaction associated therewith to qualify for the Tax-Free Status of the Transactions.

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“Tax Return” shall mean any return, report, certificate, form or similar statement or document (including any related supporting information or schedule attached thereto and any information return, amended tax return, claim for refund or declaration of estimated tax) supplied to or filed with, or required to be supplied to or filed with, a Taxing Authority, or any bill for or notice related to ad valorem or other similar Taxes received from a Taxing Authority, in each case, in connection with the determination, assessment or collection of any Tax or the administration of any laws, regulations or administrative requirements relating to any Tax.

“Taxing Authority” shall mean any governmental authority or any subdivision, agency, commission or entity thereof or any quasi-governmental or private body having jurisdiction over the assessment, determination, collection or imposition of any Tax (including the IRS).

“Transaction Taxes” shall mean all (i) sales, use, transfer, real property transfer, intangible, recordation, registration, documentary, stamp or similar Taxes imposed with respect to the Internal Restructuring, Spinco Contribution or Distribution and (ii) any income Taxes imposed with respect to the steps taken pursuant to the Separation Plan, including in each case, any withholding in respect of such Taxes; provided, however, that Transaction Taxes shall not include any Taxes incurred as a result of (x) Spinco’s breach of any obligation under the Separation Agreement, this Agreement, or any Ancillary Agreement, (y) Spinco undertaking any action described in Section 4.2(a) or Section 4.2(b), without regard to whether an Unqualified Tax Opinion or Post-Distribution Ruling may have been provided or whether WDC consented to any such action, or (z) a Spinco Disqualifying Action. For the avoidance of doubt, “Transaction Taxes” shall not include any value added, goods and services or similar Taxes.

“Transactions” shall have the meaning set forth in the Separation Agreement.

“Transfer Pricing Adjustment” shall mean any proposed or actual allocation by a Taxing Authority of any Tax Item between or among any member of the WDC Group and any member of the Spinco Group with respect to any Tax Period ending prior to or including the Distribution Date.

“Treasury Regulations” shall mean the regulations promulgated from time to time under the Code as in effect for the relevant Tax Period.

“Unqualified Tax Opinion” shall mean a “will” opinion, without substantive qualifications, of a nationally recognized law or accounting firm, to the effect that a transaction will not affect the Tax-Free Status of the Transactions.

“WDC” shall have the meaning set forth in the preamble hereto.

“WDC Common Stock” shall have the meaning set forth in the Separation Agreement.

“WDC Consolidated Tax Return” shall mean any U.S. federal income Tax Return required to be filed by WDC (or any member of the WDC Group) as the “common parent corporation” of an “affiliated group” (in each case, within the meaning of Section 1504 of the Code and the Treasury Regulations promulgated thereunder) filing a U.S. federal consolidated income Tax Return.

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“WDC Group” shall mean WDC and each Person that is a Subsidiary of WDC (other than Spinco and any other member of the Spinco Group).

“WDC Separate Return” shall mean any Tax Return of or including any member of the WDC Group (including any consolidated, combined or unitary return) that does not include any member of the Spinco Group.

ARTICLE II

PAYMENTS AND TAX REFUNDS

2.1 Allocation of Tax Liabilities. Except as otherwise provided in this Article II and Section 5.1 or as set forth on Exhibit A, Taxes shall be allocated as follows:

(a) Allocation of Taxes Relating to Joint Returns.

(i) In the case of any Joint Return that relates solely to a Pre-Distribution Period, Spinco and WDC shall each pay and be responsible for fifty percent (50%) of any and all Taxes that are due with respect to or required to be reported on any such Joint Return (including any increase in such Taxes as a result of a Final Determination).

(ii) In the case of any Joint Return that relates to a Straddle Period and with respect to which a member of the WDC Group is the common parent: (A) Spinco shall pay and be responsible for fifty percent (50%) of any and all Taxes that are (I) due with respect to or required to be reported on any such Joint Return and (II) allocable to a Pre-Distribution Period in accordance with Section 2.1(c) (including any increase in such Taxes as a result of a Final Determination), and (B) WDC shall pay and be responsible for all other Taxes that are due with respect to or required to be reported on any such Joint Return (including any increase in such Taxes as a result of a Final Determination).

(iii) In the case of any Joint Return that relates to a Straddle Period and with respect to which a member of the Spinco Group is common parent: (A) WDC shall pay and be responsible for fifty percent (50%) of any and all Taxes that are (I) due with respect to or required to be reported on any such Joint Return and (II) allocable to a Pre-Distribution Period in accordance with Section 2.1(c) (including any increase in such Taxes as a result of a Final Determination), and (B) Spinco shall pay and be responsible for all other Taxes that are due with respect to or required to be reported on any such Joint Return (including any increase in such Taxes as a result of a Final Determination).

(iv) Notwithstanding anything herein to the contrary, in the case of any Joint Return that relates to a Straddle Period with respect to which (A) a member of the WDC Group is the common parent, WDC shall be responsible for one hundred percent (100%) of any Taxes reflected on such Joint Return that are imposed with respect to amounts required to be included in income under Section 951(a) or Section 951A of the Code; and (B) a member of the Spinco Group is the common parent, Spinco shall be responsible for one hundred percent (100%) of any Taxes reflected on such Joint Return that are imposed with respect to amounts required to be included in income under Section 951(a) or Section 951A of the Code.

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(b) Allocation of Taxes Relating to Separate Returns. Except as otherwise provided herein:

(i) Spinco shall pay and be responsible for any and all Taxes due with respect to or required to be reported on any Spinco Separate Return (including any increase in such Taxes as a result of a Final Determination) for all Tax Periods.

(ii) WDC shall pay and be responsible for any and all Taxes due with respect to or required to be reported on any WDC Separate Return (including any increase in such Taxes as a result of a Final Determination) for all Tax Periods.

(c) In the case of any Joint Return for any Straddle Period:

(i) The amount of any Tax with respect to such Straddle Period that is based on or measured by income, sales, use, receipts, or other similar items shall be allocated between the Pre-Distribution Period and Post-Distribution Period based on the Closing of the Books Method.

(ii) The amount of any Tax with respect to a Straddle Period other than Taxes described in Section 2.2(c)(i) shall be allocated between the Pre-Distribution Period and the Post-Distribution Period by multiplying the total amount of such Tax for the entire Straddle Period by a fraction, the numerator of which is the number of calendar days in the Straddle Period ending on, and including, the Distribution Date, and the denominator of which is the number of calendar days in the entire Straddle Period, and allocating the result to the Pre-Distribution Period and the remainder of such Tax to the Post-Distribution Period.

(d) The amount of Taxes allocable to Spinco or WDC pursuant to Section 2.1(a) with respect to any Joint Return for any Tax Period shall not be less than zero. For the avoidance of doubt, WDC shall not be required to make any payment to Spinco, nor shall Spinco be required to make any payment to WDC, to the extent that Tax Items of a member of the WDC Group or of the Spinco Group, as the case may be, may reduce the aggregate Taxes owed with respect to any Joint Return.

(e) Taxes described on Exhibit A shall be allocable among WDC and Spinco in the manner set forth therein.

2.2 Certain Transaction Taxes. Notwithstanding the provisions set forth in Sections 2.1, (i) Spinco shall pay and be responsible for any Transaction Taxes resulting from or attributable to a Reverse Carve-Out Transaction, and (ii) WDC shall pay and be responsible for all other Transaction Taxes.

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2.3 Allocation of Employment Taxes. Liability for Employment Taxes shall be determined pursuant to the Employee Matters Agreement.

2.4 Tax Refunds.

(a) To the extent that a Party is allocated the liability for a given Tax pursuant to Exhibit A, such Party shall be entitled to any Refunds arising in a Pre-Distribution Period directly or indirectly from the Adjustment giving rise to the liability for such Tax, computed on a “with and without” basis.

(b) Except as set forth in Section 2.4(a), WDC shall be entitled to all Refunds of Taxes the liability for which is allocated to WDC pursuant to this Agreement, and Spinco shall be entitled to all Refunds of Taxes the liability for which is allocated to Spinco pursuant to this Agreement. This Section 2.4(b) shall be applied looking solely to the allocation of the Tax for which a Refund is received, regardless of whether an Adjustment to a separate Tax may have impacted the presence or amount of such Refund.

(c) Spinco shall pay to WDC any Refund received by Spinco or any member of the Spinco Group that is allocable to WDC pursuant to this Section 2.4 no later than fifteen (15) Business Days after the receipt of such Refund. WDC shall pay to Spinco any Refund received by WDC or any member of the WDC Group that is allocable to Spinco pursuant to this Section 2.4 no later than fifteen (15) Business Days after the receipt of such Refund. For purposes of this Section 2.4, any Refund that arises as a result of an offset, credit, or other similar benefit in respect of Taxes other than a receipt of cash shall be deemed to be received on the earlier of (i) the date on which a Tax Return is filed claiming such offset, credit, or other similar benefit and (ii) the date on which payment of the Tax which would have otherwise been paid absent such offset, credit, or other similar benefit is due (determined without taking into account any applicable extensions).

(d) In the event that Refund received after the date hereof is later disallowed or reduced in whole or in part, resulting in a Tax liability, such Tax shall be allocated amongst the Parties in the same manner as such underlying Refund was allocated.

2.5 Prior Agreements. Except as set forth in this Agreement and in consideration of the mutual indemnities and other obligations of this Agreement, any and all prior Tax sharing or allocation agreements or practices between any member of the WDC Group and any member of the Spinco Group shall be terminated with respect to the Spinco Group and the WDC Group as of the Distribution Date. No member of either the Spinco Group or the WDC Group shall have any continuing rights or obligations under any such agreement.

ARTICLE III

PREPARATION AND FILING OF TAX RETURNS

3.1 WDC’s Responsibility. WDC shall prepare and file when due (taking into account any applicable extensions), or shall cause to be prepared and filed, all Joint Returns for which a member of the WDC Group is the common parent and all WDC Separate Returns, including any amended Joint Returns or amended WDC Separate Returns. WDC shall be the “Preparing Party” with respect to Tax Returns described in this Section 3.1.

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3.2 Spinco’s Responsibility. Spinco shall prepare and file when due (taking into account any applicable extensions), or shall cause to be prepared and filed, all Tax Returns required to be filed by or with respect to members of the Spinco Group other than those Tax Returns which WDC is required to prepare and file under Section 3.1, including any amended Tax Returns. Spinco shall be the “Preparing Party” with respect to Tax Returns described in this Section 3.2.

3.3 Right to Review Tax Returns. To the extent that the positions taken on any Tax Return (i) reasonably relate to matters for which the Reviewing Party has an indemnification obligation to the Preparing Party or (ii) would reasonably be expected to materially affect the Tax position of the Reviewing Party, the Preparing Party shall (x) prepare the portions of such Tax Return that relate to such indemnification obligation or Tax position and (y) provide a draft of such portion of such Tax Return to the Reviewing Party for its review and comment at least thirty (30) Business Days prior to the due date for such Tax Return. The Reviewing Party shall thereafter have fifteen (15) Business Days to review such portion of such Tax Return and provide reasonable comments, if any, on such portion of such Tax Return to the Preparing Party, provided, however, that the Reviewing Party shall provide any comments it may have to the Preparing Party no later than two (2) Business Days prior to the due date for such Tax Return (taking into account any applicable extensions). The Parties shall negotiate in good faith to resolve any disputes relating to the review of a Tax Return pursuant to this Section 3.3. Any disputes that the Parties are unable to resolve shall be resolved by the Accounting Firm pursuant to Article IX. In the event that any dispute is not resolved (whether pursuant to good faith negotiations among the Parties or by the Accounting Firm) prior to the due date for the filing of any Tax Return (taking into account any applicable extensions), such Tax Return shall be timely filed by the Preparing Party and the Parties shall amend such Tax Return as necessary to reflect the resolution of such dispute in a manner consistent with such resolution. Notwithstanding the foregoing, in the case of a WDC Consolidated Tax Return, the covenants and obligations set forth in this Section 3.3 shall not apply.

3.4 Cooperation. The Parties shall provide, and shall cause their Affiliates to provide, assistance and cooperation to one another in accordance with Article VII with respect to the preparation and filing of Tax Returns, including providing information required to be provided in Article VIII. Notwithstanding anything to the contrary in this Agreement, WDC shall not be required to disclose to Spinco any consolidated, combined, unitary, or other similar Joint Return of which a member of the WDC Group is the common parent or any information related to such a Joint Return other than information relating solely to the Spinco Group; provided that WDC and Spinco shall each provide such additional information to the other Party as is reasonably required for such other Party to determine the Taxes for which it is liable pursuant to Article II.

3.5 Tax Reporting Practices. Except as provided in Section 3.6 or as otherwise agreed among the Parties, with respect to any Separate Return including matters for which the Reviewing Party has an indemnification obligation to the Preparing Party, such Tax Return shall be prepared in a manner consistent with past practices, accounting methods, elections and conventions (“Past Practices”) used with respect to the Tax Returns in question, and to the extent any items are not covered by Past Practices, in accordance with reasonable Tax accounting practices selected by the Preparing Party.

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3.6 Reporting of the Transactions. The Tax treatment of any step in or portion of the Internal Restructuring, Spinco Contribution, and Distribution shall be reported on each applicable Tax Return consistently with the Tax-Free Status of the Transactions, taking into account the jurisdiction in which such Tax Returns are filed. If WDC determines, in its sole discretion, that a protective election under Section 336(e) of the Code shall be made with respect to the Distribution, Spinco agrees to take any such action that is necessary to effect such election, including any corresponding election with respect to any of its Subsidiaries, as determined by WDC. If such a protective election is made, this Agreement shall be amended in such a manner as is determined by WDC in its good faith discretion to compensate WDC for any Tax benefits realized by Spinco as a result of such election.

3.7 Payment of Taxes.

(a) With respect to any Tax Return required to be filed pursuant to this Agreement, the Preparing Party shall remit or cause to be remitted to the applicable Taxing Authority in a timely manner any Taxes due in respect of any such Tax Return.

(b) In the case of any Tax Return for which the Party that is not the Preparing Party is obligated pursuant to this Agreement to pay all or a portion of the Taxes reported as due on such Tax Return, the Preparing Party shall notify the other Party, in writing, of its obligation to pay such Taxes and, in reasonably sufficient detail, its calculation of the amount due by such other Party and the Party receiving such notice shall pay such amount to the Preparing Party upon the later of five (5) Business Days prior to the date on which such payment is due and fifteen (15) Business Days after the receipt of such notice.

(c) With respect to any estimated Taxes, the Party that is or will be the Preparing Party with respect to any Tax Return that will reflect (or otherwise give credit for) such estimated Taxes shall remit or cause to be remitted to the applicable Taxing Authority in a timely manner any estimated Taxes due. In the case of any estimated Taxes for which the Party that is not the Preparing Party is obligated pursuant to this Agreement to pay all or a portion of the Taxes that will be reported as due on any Tax Return that will reflect (or otherwise give credit for) such estimated Taxes, the Preparing Party shall notify the other Party, in writing, of its obligation to pay such estimated Taxes and, in reasonably sufficient detail, its calculation of the amount due by such other Party and the Party receiving such notice shall pay such amount to the Preparing Party upon the later of five (5) Business Days prior to the date on which such payment is due and fifteen (15) Business Days after the receipt of such notice.

3.8 Amended Returns and Carrybacks.

(a) Spinco shall not, and shall not permit any member of the Spinco Group to, file or allow to be filed any request for an Adjustment for any Tax Period (or portion thereof) ending on or before the Distribution Date (including for the avoidance of doubt, the portion of any Straddle Period ending at the end of the day on the Distribution Date) without the prior written consent of WDC, such consent to be exercised in WDC’s sole discretion.

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(b) Spinco shall, and shall cause each member of the Spinco Group to, make any available elections to waive the right to carry back any Tax Attribute (i) from a Tax Period or portion thereof ending after the Distribution Date to a Joint Return in respect of a Tax Period or portion thereof ending on or before the Distribution Date and (ii) from a Tax Period or portion thereof ending after the Distribution Date to a Joint Return in respect of a Tax Period or portion thereof ending on or before the Distribution Date.

(c) Spinco shall not, and shall cause each member of the Spinco Group not to, without the prior written consent of WDC, make any affirmative election to carry back any Tax Attribute (i) from a Tax Period or portion thereof ending after the Distribution Date to a Joint Return in respect of a Tax Period or portion thereof ending on or before the Distribution Date or (ii) from a Tax Period or portion thereof ending after the Distribution Date to a Joint Return in respect of a Tax Period or portion thereof ending on or before the Distribution Date, in each case, such consent to be exercised in WDC’s sole discretion.

(d) Receipt of consent by Spinco or a member of the Spinco Group from WDC pursuant to the provisions of this Section 3.8 shall not limit or modify Spinco’s continuing indemnification obligation pursuant to Article V.

3.9 Tax Attributes. WDC shall in good faith advise Spinco in writing of the amount, if any of any Tax Attributes, which WDC determines, in its good faith discretion, shall be allocated or apportioned to the Spinco Group under applicable Law. Spinco and all members of the Spinco Group shall prepare all Tax Returns in accordance with such written notice. Spinco agrees that it shall not dispute WDC’s allocation or apportionment of Tax Attributes. For the avoidance of doubt, WDC shall not be required to create or cause to be created any books and records or reports or other documents based thereon (including, without limitation, “earnings & profits studies,” “basis studies” or similar determinations) that it does not maintain or prepare in the ordinary course of business in order to comply with this Section 3.9.

ARTICLE IV

TAX-FREE STATUS OF THE DISTRIBUTION

4.1 Representations and Warranties.

(a) WDC, on behalf of itself and all other members of the WDC Group, hereby represents and warrants that (i) it has examined the Tax Opinion, the Tax Certificates, the Separation Plan, and any other materials delivered or deliverable in connection with the rendering of the Tax Opinion (collectively, the “Tax Materials”) and (ii) the facts presented and representations that have been or will be made therein, to the extent descriptive of or otherwise relating to WDC or any member of the WDC Group or the Non-Flash Business, were or will be, at the time presented or represented and from such time until and including the Distribution Date, true, correct, and complete in all material respects. WDC, on behalf of itself and all other members of the WDC Group, hereby confirms and agrees to comply with any and all covenants and agreements in the Tax Materials applicable to WDC or any member of the WDC Group or the Non-Flash Business.

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(b) Spinco, on behalf of itself and all other members of the Spinco Group, hereby represents and warrants that (i) it has examined the Tax Materials and (ii) the facts presented and representations that have been or will be made therein, to the extent descriptive of or otherwise relating to Spinco or any member of the Spinco Group or the Flash Business, were or will be, at the time presented or represented and from such time until and including the Distribution Date, true, correct, and complete in all material respects. Spinco, on behalf of itself and all other members of the Spinco Group, hereby confirms and agrees to comply with any and all covenants and agreements in the Tax Materials applicable to Spinco or any member of the Spinco Group or the Flash Business.

(c) Each of WDC, on behalf of itself and all other members of the WDC Group, and Spinco, on behalf of itself and all other members of the Spinco Group represents and warrants that it knows of no fact (after due inquiry) that may cause the Tax treatment of the Internal Restructuring, Spinco Contribution or Distribution to be other than the Tax-Free Status of the Transactions.

(d) Each of WDC, on behalf of itself and all other members of the WDC Group, and Spinco, on behalf of itself and all other members of the Spinco Group represents and warrants that it has no plan or intent to take any action which is inconsistent with any statements or representations made in the Tax Materials.

4.2 Restrictions Relating to the Distribution .

(a) Spinco, on behalf of itself and all other members of the Spinco Group, hereby covenants and agrees that no member of the Spinco Group will take, fail to take, or permit to be taken: (i) any action where such action or failure to act would be inconsistent with or cause to be untrue any statement, information, covenant or representation in the Tax Materials or (ii) any action which constitutes a Spinco Disqualifying Action.

(b) During the Restricted Period, Spinco:

(i) shall continue and cause to be continued the Active Trade or Business, taking into account Section 355(b)(3) of the Code, as conducted immediately prior to the Distribution;

(ii) shall not voluntarily dissolve or liquidate itself (including any action that is a liquidation for U.S. federal income tax purposes);

(iii) shall not (1) enter into any Proposed Acquisition Transaction or, to the extent Spinco has the right to prohibit any Proposed Acquisition Transaction, permit any Proposed Acquisition Transaction to occur, (2) redeem or otherwise repurchase (directly or through an Affiliate) any stock, or rights to acquire stock except to the extent such repurchases satisfy Section 4.05(1)(b) of Revenue Procedure 96-30 (as in effect prior to the amendment of such Revenue Procedure by Revenue Procedure 2003-48), (3) amend its certificate of incorporation (or other organizational documents), or take any other action, whether through a stockholder vote or otherwise, affecting the relative voting rights of its capital stock (including through the conversion of any capital stock into another class of capital stock), (4) merge or consolidate with any other Person or

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(5) take any other action or actions (including any action or transaction that would be reasonably likely to be inconsistent with any representation made in the Tax Certificates) which in the aggregate would, when combined with any other direct or indirect changes in ownership of Spinco capital stock pertinent for purposes of Section 355(e) of the Code, have the effect of causing or permitting one or more Persons (whether or not acting in concert) to acquire directly or indirectly stock representing a fifty-percent or greater interest in Spinco or would reasonably be expected to result in a failure to preserve the Tax-Free Status of the Transactions;

(iv) shall not and shall not permit any member of the Spinco Group, to sell, transfer, or otherwise dispose of or agree to, sell, transfer or otherwise dispose (including in any transaction treated for federal income tax purposes as a sale, transfer or disposition) of assets (including, any shares of capital stock of a Subsidiary) that, in the aggregate, constitute more than 20% of the consolidated gross assets of Spinco or the Spinco Group. The foregoing sentence shall not apply to (1) sales, transfers, or dispositions of assets in the ordinary course of business, (2) any cash paid to acquire assets from an unrelated Person in an arm’s-length transaction, (3) any assets transferred to a Person that is disregarded as an entity separate from the transferor for federal income tax purposes or (4) any mandatory or optional repayment (or pre-payment) of any indebtedness of Spinco or any member of the Spinco Group. The percentages of gross assets or consolidated gross assets of Spinco or the Spinco Group, as the case may be, sold, transferred, or otherwise disposed of, shall be based on the fair market value of the gross assets of Spinco and the members of the Spinco Group as of the Distribution Date. For purposes of this Section 4.2(b)(iv), a merger of Spinco or one of its Subsidiaries with and into any Person that is not a wholly owned Subsidiary of Spinco shall constitute a disposition of all of the assets of Spinco or such Subsidiary; and

(v) shall not take, and shall not permit any Affiliate to take, any action in violation of the restrictions set forth on Exhibit B.

(c) Notwithstanding the restrictions imposed by Sections 4.2(a) and 4.2(b), Spinco or a member of the Spinco Group may take any of the actions or transactions described therein if Spinco either (i) obtains an Unqualified Tax Opinion or Post-Distribution Ruling, in each case, in form and substance reasonably satisfactory to WDC or (ii) obtains the prior written consent of WDC waiving the requirement that Spinco obtain an Unqualified Tax Opinion or Post-Distribution Ruling, such waiver to be provided in WDC’s sole and absolute discretion. WDC’s evaluation of an Unqualified Tax Opinion or Post-Distribution Ruling may consider, among other factors, the appropriateness of any underlying assumptions, representations, and covenants made in connection with such opinion. Spinco shall bear all costs and expenses of securing any such Unqualified Tax Opinion or Post-Distribution Ruling and shall reimburse WDC for all reasonable out-of-pocket expenses that WDC or any of its Affiliates may incur in good faith in seeking to obtain or evaluate any such Unqualified Tax Opinion or Post-Distribution Ruling. Neither the delivery of an Unqualified Tax Opinion or Post-Distribution Ruling nor WDC’s waiver of Spinco’s obligation to deliver an Unqualified Tax Opinion or Post-Distribution Ruling shall limit or modify Spinco’s continuing indemnification obligation pursuant to Article V.

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ARTICLE V

INDEMNITY OBLIGATIONS

5.1 Indemnity Obligations.

(a) WDC shall indemnify and hold harmless Spinco from and against, and will reimburse Spinco for, without duplication: (i) all liability for Taxes allocated to WDC pursuant to Article II, together with WDC’ allocable portion of all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes or any other out-of-pocket costs incurred in connection with such Taxes, (ii) all Taxes and Tax-Related Losses arising out of, based upon, or relating or attributable to any breach of or inaccuracy in, or failure to perform, as applicable, any representation, covenant, or obligation of any member of the WDC Group pursuant to this Agreement, (iii) the amount of any Refund received by any member of the WDC Group that is allocated to Spinco pursuant to Section 2.4(a) and (iv) any Distribution Taxes and Tax-Related Losses, except to the extent attributable to a Spinco Disqualifying Action.

(b) Spinco shall indemnify and hold harmless WDC from and against, and will reimburse WDC for, without duplication: (i) all liability for Taxes allocated to Spinco pursuant to Article II, together with Spinco’s allocable portion of all accounting, legal and other professional fees, and court costs incurred in connection with such Taxes or any other out-of-pocket costs incurred in connection with such Taxes, (ii) all Taxes and Tax-Related Losses arising out of, based upon, or relating or attributable to any breach of or inaccuracy in, or failure to perform, as applicable, any representation, covenant, or obligation of any member of the Spinco Group pursuant to this Agreement, (iii) the amount of any Refund received by any member of the Spinco Group that is allocated to WDC pursuant to Section 2.4(a) and (iv) any Distribution Taxes and Tax-Related Losses attributable to a Spinco Disqualifying Action (regardless of whether the conditions set forth in Section 4.2(c) are satisfied).

(c) To the extent that any Tax or Tax-Related Loss is subject to indemnity pursuant to both Sections 5.1(a) and 5.1(b), responsibility for such Tax or Tax-Related Loss shall be shared by WDC and Spinco according to relative fault. For purposes of Section 5.1(a)(i) and Section 5.1(b)(i), a Party’s allocable portion of fees or costs shall be equal to the percentage allocation of the underlying Tax to such Party under Article II.

5.2 Indemnification Payments.

(a) Except as otherwise provided in this Agreement, if either Party (the “Indemnitee”) is required to pay to a Taxing Authority a Tax or to another Person a payment in respect of a Tax that the other Party (the “Indemnifying Party”) is liable for under this Agreement, including as the result of a Final Determination, the Indemnitee shall notify the Indemnifying Party, in writing, of its obligation to pay such Tax and, in reasonably sufficient detail, its calculation of the amount due by such Indemnifying Party to the Indemnitee, including any Tax-Related Losses attributable thereto. The Indemnifying Party shall pay such amount, including any Tax-Related Losses attributable thereto, to the Indemnitee no later than the later of (i) five (5) Business Days prior to the date on which such payment is due to the applicable Taxing Authority or (ii) fifteen (15) Business Days after the receipt of notice from the other Party.

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(b) If, as a result of any change or redetermination made with respect to Sections 2.1 or 2.2, any amount previously allocated to and borne by one Party pursuant to the provisions of Article II is thereafter allocated to the other Party, then, no later than fifteen (15) Business Days after such change or redetermination, such other Party shall pay to such Party the amount previously borne by such Party which is allocated to such other Party as a result of such change or redetermination.

5.3 Payment Mechanics.

(a) All payments under this Agreement shall be made by WDC directly to Spinco and by Spinco directly to WDC; provided, however, that if the Parties mutually agree with respect to any such indemnification payment, any member of the WDC Group, on the one hand, may make such indemnification payment to any member of the Spinco Group, on the other hand, and vice versa. All indemnification payments shall be treated in the manner described in Section 5.4.

(b) In the case of any payment of Taxes made by a Preparing Party or Indemnitee pursuant to this Agreement for which such Preparing Party or Indemnitee, as the case may be, has received a payment from the other Party, such Preparing Party or Indemnitee shall provide to the other Party a copy of any official government receipt received with respect to the payment of such Taxes to the applicable Taxing Authority (or, if no such official governmental receipts are available, executed bank payment forms or other reasonable evidence of payment).

5.4 Treatment of Payments. In the absence of any change in Tax treatment under the Code or except as otherwise required by other applicable Tax Law, any Tax indemnity payments made under this Agreement shall be reported for Tax purposes by the payor and the recipient as distributions or capital contributions, as appropriate, occurring immediately before the Distribution (but only to the extent the payment does not relate to a Tax allocated to the payor in accordance with Section 1552 of the Code or the Treasury Regulations thereunder or Treasury Regulation Section 1.1502-33(d) (or under corresponding principles of other applicable Tax Laws)) or as payments of an assumed or retained liability. Any Tax indemnity payment made under this Agreement shall be increased as necessary so that after making all payments in respect to Taxes imposed on or attributable to such indemnity payment, the recipient receives an amount equal to the sum it would have received had no such Taxes been imposed.

ARTICLE VI

TAX CONTESTS

6.1 Notice. Each Party shall notify the other Party in writing within fifteen (15) days after receipt by such Party or any member of its Group of a written communication from any Taxing Authority with respect to any pending or threatened audit, claim, dispute, suit, action, proposed assessment or other proceeding (a “Tax Contest”) concerning any Taxes for which the other Party may be liable pursuant to this Agreement, and thereafter shall promptly forward or make available to such Party copies of notices and communications relating to such Tax Contest.

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6.2 Separate Returns. In the case of any Tax Contest with respect to any Separate Return, the Party having the liability pursuant to Article II hereof for the Tax that is the subject of such Tax Contest shall have the sole responsibility and right to control the prosecution of such Tax Contest, including the exclusive right to communicate with agents of the applicable Taxing Authority and to control, resolve, settle, or agree to any deficiency, claim, or adjustment proposed, asserted, or assessed in connection with or as a result of such Tax Contest.

6.3 Joint Returns. Subject to Section 6.6, in the case of any Tax Contest with respect to any Joint Return, (a) WDC shall have the sole responsibility and right to control the prosecution of such Tax Contest to the extent it relates to a Joint Return for which a member of the WDC Group is the common parent and (b) Spinco shall have the sole responsibility and right to control the prosecution of such Tax Contest to the extent it relates to a Joint Return for which a member of the Spinco Group is the common parent, in each case, including the exclusive right to communicate with agents of the applicable Taxing Authority and to control, resolve, settle, or agree to any deficiency, claim, or adjustment proposed, asserted, or assessed in connection with or as a result of such Tax Contest.

6.4 Tax Contests Related to the Tax-Free Status of the Transactions. Notwithstanding Section 6.2 or Section 6.3, WDC shall have the sole responsibility and right to control the prosecution of any Tax Contest that relates to the Tax-Free Status of the Transactions (each, a “Tax-Free Status Tax Contest”).

6.5 Obligation of Continued Notice. During the pendency of any Tax Contest or threatened Tax Contest, each of the Parties shall provide prompt notice to the other Party of any written communication received by it or a member of its respective Group from a Taxing Authority regarding any Tax Contest for which it is indemnified by the other Party hereunder or for which it may be required to indemnify the other Party hereunder. Such notice shall attach copies of the pertinent portion of any written communication from a Taxing Authority and contain factual information (to the extent known) describing any asserted Tax liability in reasonable detail and shall be accompanied by copies of any notice and other documents received from any Taxing Authority in respect of any such matters. Such notice shall be provided in a reasonably timely fashion; provided, however, that in the event that timely notice is not provided, a Party shall be relieved of its obligation to indemnify the other Party only to the extent that such delay results in actual increased costs or actual prejudice to such other Party.

6.6 Settlement Rights. Notwithstanding anything herein to the contrary, unless waived by the Parties in writing, in connection with any potential adjustment in a Tax Contest as a result of which adjustment the Non-Controlling Party may reasonably be expected to become liable to make any indemnification payment to the Controlling Party under this Agreement: (i) the Controlling Party shall keep the Non-Controlling Party informed in a timely manner of all actions taken or proposed to be taken by the Controlling Party with respect to such potential adjustment in such Tax Contest; (ii) the Controlling Party shall timely provide the Non-Controlling Party with copies of any correspondence or filings submitted to any Tax Authority or judicial authority in connection with such potential adjustment in such Tax Contest; (iii) the

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Controlling Party shall defend such Tax Contest diligently and in good faith; (iv) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party a reasonable opportunity to comment before submitting any written materials prepared or furnished in connection with such potential adjustment in such Tax Contest; and (v) the Controlling Party shall not settle such Tax Contest without the Non-Controlling Party’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed). In the case of a Tax-Free Status Tax Contest, Spinco (at its sole expense) shall have the right to attend, any formally scheduled meetings with Tax Authorities or hearings or proceedings before any judicial authorities in connection with any potential adjustment in a Tax-Free Status Tax Contest pursuant to which the Spinco may reasonably be expected to become liable to make any indemnification payment to WDC under this Agreement. The failure of the Controlling Party to take any action specified in the preceding sentence with respect to the Non-Controlling Party shall not relieve the Non-Controlling Party of any liability and/or obligation which it may have to the Controlling Party under this Agreement except to the extent that the Non-Controlling Party was actually harmed by such failure, and in no event shall such failure relieve the Non-Controlling Party from any other liability or obligation which it may have to the Controlling Party.

ARTICLE VII

COOPERATION

7.1 General.

(a) Each Party shall fully cooperate, and shall cause all members of such Party’s Group to fully cooperate, with all reasonable requests in writing from the other Party, or from an agent, representative or advisor to such Party, in connection with the preparation and filing of any Tax Return, claims for Refunds, the conduct of any Tax Contest, and calculations of amounts required to be paid pursuant to this Agreement, in each case, related or attributable to or arising in connection with Taxes of either Party or any member of either Party’s Group covered by this Agreement and the establishment of any reserve required in connection with any financial reporting (a “Tax Matter”). Such cooperation shall include the provision of any information reasonably necessary or helpful in connection with a Tax Matter and shall include, without limitation, at each Party’s own cost:

(i) the provision of any Tax Returns of either Party or any member of either Party’s Group, books, records (including information regarding ownership and Tax basis of property), documentation and other information relating to such Tax Returns, including accompanying schedules, related work papers, and documents relating to rulings or other determinations by Taxing Authorities;

(ii) the execution of any document (including any power of attorney) in connection with any Tax Contest of either Party or any member of either Party’s Group, or the filing of a Tax Return or a Refund claim of either Party or any member of either Party’s Group;

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(iii) the use of the Party’s reasonable best efforts to obtain any documentation in connection with a Tax Matter; and

(iv) the use of the Party’s reasonable best efforts to obtain any Tax Returns (including accompanying schedules, related work papers, and documents), documents, books, records or other information in connection with the filing of any Tax Returns of any of either Party or any member of either Party’s Group.

Each Party shall make its employees and facilities available, without charge, on a mutually convenient basis to facilitate such cooperation. In the event that a member of the WDC Group, on the one hand, or a member of the Spinco Group, on the other hand, suffers a Tax detriment as a result of a Transfer Pricing Adjustment, the Parties shall cooperate pursuant to this Section 7 to seek any competent authority relief that may be available with respect to such Transfer Pricing Adjustment.

7.2 Consistent Treatment. Unless and until there has been a Final Determination to the contrary, each Party agrees not to take any position on any Tax Return, in connection with any Tax Contest or otherwise that is inconsistent with (a) the treatment of payments between the WDC Group and the Spinco Group as set forth in Section 5.4, or (b) the Tax-Free Status of the Transactions.

ARTICLE VIII

RETENTION OF RECORDS; ACCESS

8.1 Retention of Records. For so long as the contents thereof may become material in the administration of any matter under applicable Tax Law, but in any event until the later of (i) sixty (60) days after the expiration of any applicable statutes of limitation (including any waivers or extensions thereof) and (ii) seven years after the Distribution Date, the Parties shall retain records, documents, accounting data and other information (including computer data) necessary for the preparation and filing of all Tax Returns (collectively, “Tax Records”) in respect of Taxes of any member of either the WDC Group or the Spinco Group for any Pre-Distribution Period, Straddle Period, or Post-Distribution Period or for any Tax Contests relating to such Tax Returns. At any time after the Distribution Date that the WDC Group proposes to destroy such records or documents, it shall first notify the Spinco Group in writing and the Spinco Group shall be entitled to receive such records or documents proposed to be destroyed. At any time after the Distribution Date that the Spinco Group proposes to destroy such records or documents, it shall first notify the WDC Group in writing and the WDC Group shall be entitled to receive such records or documents proposed to be destroyed. The Parties will notify each other in writing of any waivers or extensions of the applicable statute of limitations that may affect the period for which the foregoing records or other documents must be retained.

8.2 Access to Tax Records. The Parties and their respective Affiliates shall make available to each other for inspection and copying during normal business hours upon reasonable notice all Tax Records (and, for the avoidance of doubt, any pertinent underlying data accessed or stored on any computer program or information technology system) in their possession and shall permit the other Party and its Affiliates, authorized agents and representatives and any

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representative of a Taxing Authority or other Tax auditor direct access, during normal business hours upon reasonable notice to any computer program or information technology system used to access or store any Tax Records, in each case to the extent reasonably required by the other Party in connection with the preparation of Tax Returns or financial accounting statements, audits, litigation, or the resolution of items pursuant to this Agreement. The Party seeking access to the records of the other Party shall bear all costs and expenses associated with such access, including any professional fees.

ARTICLE IX

DISPUTE RESOLUTION

In the event of any dispute between the Parties as to any matter covered by this Agreement, the Parties shall appoint a nationally recognized independent public accounting firm (the “Accounting Firm”) to resolve such dispute. In this regard, the Accounting Firm shall make determinations with respect to the disputed items based solely on representations made by WDC and Spinco and their respective representatives, and not by independent review, and shall function only as an expert and not as an arbitrator and shall be required to make a determination in favor of one Party only. The Parties shall require the Accounting Firm to resolve all disputes no later than thirty (30) days after the submission of such dispute to the Accounting Firm, but in no event later than the due date for the payment of Taxes or the filing of the applicable Tax Return, if applicable, and agree that all decisions by the Accounting Firm with respect thereto shall be final and conclusive and binding on the Parties. The Accounting Firm shall resolve all disputes in a manner consistent with this Agreement and, to the extent not inconsistent with this Agreement, in a manner consistent with the Past Practices of WDC and its Subsidiaries, except as otherwise required by applicable Law. The Parties shall require the Accounting Firm to render all determinations in writing and to set forth, in reasonable detail, the basis for such determination. The fees and expenses of the Accounting Firm shall be borne equally by the Parties.

ARTICLE X

MISCELLANEOUS PROVISIONS

10.1 Effective Date. This Agreement shall be effective as of the date hereof. For the avoidance of doubt, this Agreement shall not apply to payments of Taxes (including estimated Taxes) made, or Tax Returns filed, prior to the date hereof, except as expressly set forth herein.

10.2 Entire Agreement. This Agreement, including any exhibits and amendments hereto, and the other agreements and documents expressly referred to herein, shall together constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and shall supersede all prior negotiations, agreements and understandings, both written and oral, among or between any of the Parties with respect to such subject matter hereof.

10.3 Governing Law. This Agreement and the consummation of the Transactions, and any Action (whether at law, in contract, in tort or otherwise) arising out of or relating to this Agreement and the consummation of the Transactions, or the negotiation, validity, interpretation, performance, breach or termination of this Agreement and the consummation of the Transactions, shall be governed by and construed in accordance with the internal law of the State of Delaware, regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.

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10.4 Specific Performance; Jurisdiction.

(a) Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Party shall be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such party, and the exercise by a Party of any one remedy shall not preclude the exercise of any other remedy. Nothing in this Agreement shall be deemed a waiver by any Party of any right to specific performance or injunctive relief. The Parties understand and agree that the covenants and agreements on each of their parts herein contained are uniquely related to the desire of the Parties and their respective Affiliates to consummate the Transactions, that the Transactions are a unique business opportunity at a unique time for each of WDC and Spinco and their respective Affiliates, and further agree that irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with its specific terms, and further agree that, although monetary damages may be available for the breach of such covenants and agreements, monetary damages would be an inadequate remedy therefor. It is accordingly agreed that, in addition to any other remedy that may be available to it, including monetary damages, each of the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties further agrees that no Party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 9.4 and each Party waives any objection to the imposition of such relief or any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.

(b) Each of the Parties irrevocably agrees that, subject (except in the case of any legal action or proceeding seeking specific performance) to prior compliance with Article IX, any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder, brought by any other Party or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the Parties hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement: (i) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve

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in accordance with this Section 10.4; (ii) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise); and (iii) to the fullest extent permitted by the applicable Law, any claim that: (x) the suit, action or proceeding in such court is brought in an inconvenient forum; (y) the venue of such suit, action or proceeding is improper; or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts (other than by reason of, except in the case of any action or proceeding for specific performance, needing to first comply with the provisions of Article IX). In the event that any suit or action is instituted to enforce any provision in this Agreement, the prevailing Party in such dispute shall be entitled to recover from the losing Party all fees, costs and expenses of enforcing any right of such prevailing Party under or with respect to this Agreement, including, without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals. The Parties agree that service of any court paper may be made in any manner as may be provided under the applicable Laws or court rules governing service of process in such court. The Parties agree that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.

10.5 Waiver of Jury Trial. EACH OF THE PARTIES IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING (WHETHER AT LAW, IN CONTRACT, IN TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

10.6 Notices. All notices and other communications hereunder shall be in writing and shall be deemed duly delivered: (a) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid; (b) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service; (c) if sent by email transmission prior to 6:00 p.m. recipient’s local time, upon transmission when receipt is confirmed; or (d) if sent by email transmission after 6:00 p.m. recipient’s local time, the Business Day following the date of transmission when receipt is confirmed:

(a) If to WDC:

c/o Western Digital Corporation

[Address]

Attn:  [•]

Email: [•]

(b) If to Spinco:

c/o Sandisk Corporation

[Address]

Attn:  [•]

Email: [•]

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10.7 Amendments and Waivers.

(a) This Agreement may be amended or supplemented in any and all respects and any provision of this Agreement may be waived and any such waiver shall be binding upon a Party, only if such waiver is set forth in a writing executed by such waiving Party bound thereby, and any such amendment or supplement shall be effective only if set forth in a writing executed by each of the Parties; and any such waiver, amendment or supplement shall not be applicable or have any effect except in the specific instance in which it is given. No course of dealing between or among any Persons having any interest in this Agreement shall be deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any Party under or by reason of this Agreement.

(b) Notwithstanding the foregoing, no failure on the part of any Party to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. The rights and remedies hereunder are cumulative and not exclusive of any rights or remedies that any Party would otherwise have. Any waiver, permit, consent or approval of any kind or character of any breach or default under this Agreement or any such waiver of any provision of this Agreement must satisfy the conditions set forth in Section 10.7(a) and shall be effective only to the extent in such writing specifically set forth.

10.8 Termination. This Agreement shall terminate without further action upon termination of the Separation Agreement. If so terminated, no Party shall have any Liability of any kind to the other Parties or any other Person on account of this Agreement, except as provided in the Separation Agreement.

10.9 No Third-Party Beneficiaries. Except as specifically provided in the Separation Agreement or any Ancillary Agreement, this Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and is not intended, and shall not be deemed, to (a) create any agreement of employment with any person, (b) confer on third parties (including any employees of the Parties and their respective Groups) any remedy, claim, reimbursement, claim of action or other right in addition to those existing without reference to this Agreement, or (c) otherwise create any third-party beneficiary hereto.

10.10 Assignability; Binding Effect. This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the Parties and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any Party’s rights, interests or obligations hereunder may be assigned or delegated by any such Party, in whole or in part (whether by operation of law or otherwise), without the prior written consent of the other Party, and any attempted assignment or delegation of this Agreement or any of such rights or obligations by any Party without the prior written consent of the other Party shall be void and of no effect. Except as set forth in Section 10.9, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person (other than the Parties and their permitted successors and assigns) any power, right, privilege or remedy of any nature whatsoever under or by reason of this Agreement.

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10.11 Survival. The representations, warranties, covenants, and agreements set forth in this Agreement shall be unconditional and absolute and shall remain in effect without limitation as to time.

10.12 Construction.

(a) For purposes of this Agreement, whenever the context requires: (i) the singular number shall include the plural, and vice versa; (ii) the masculine gender shall include the feminine and neuter genders; (iii) the feminine gender shall include the masculine and neuter genders; and (iv) the neuter gender shall include masculine and feminine genders.

(b) The Parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be applied in the construction or interpretation of this Agreement.

(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”

(d) As used in this Agreement, the words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

(e) The measure of a period of one (1) month or year for purposes of this Agreement will be the date of the following month or year corresponding to the starting date; and, if no corresponding date exists, then the end date of such period being measured will be the next actual date of the following month or year (for example, one month following February 18 is March 18 and one month following March 31 is May 1).

(f) As used in this Agreement, the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.”

(g) As used in this Agreement, the word “will” shall be deemed to have the same meaning and effect as the word “shall.”

(h) As used in this Agreement, the terms “or,” “any” or “either” are not exclusive and shall be deemed to be “and/or.”

(i) As used in this Agreement, references to “written” or “in writing” include in electronic form.

(j) As used in this Agreement, references to the “date hereof” are to the date of this Agreement.

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(k) Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement.

(l) The table of contents and the section and other headings and subheadings contained in this Agreement and the Exhibits hereto are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction, meaning or interpretation of this Agreement. The preamble and the recitals set forth at the beginning of this Agreement are incorporated by reference into and made a part of this Agreement.

(m) Any payment to be made pursuant hereto shall be made in U.S. dollars and by wire transfer of immediately available funds.

(n) As used in this Agreement, references to “U.S. dollars” and “$” in this report are to the lawful currency of the United States of America.

10.13 Severability. Any term or provision of this Agreement which is invalid or unenforceable in any situation in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable. If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties agree that the court making such determination shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.

10.14 Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument and shall become effective when counterparts have been signed by each of the Parties and delivered to the other Party, it being understood that all Parties need not sign the same counterpart. This Agreement may be executed and delivered by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by a combination of such means. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or electronic transmission shall be treated in all manner and respects as an original agreement and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

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At the request of any Party, the other Party shall re-execute original forms thereof and deliver them to the requesting Party. No Party shall raise the use of a facsimile machine or other electronic means to deliver a signature or the fact that any signature was transmitted or communicated through the use of a facsimile machine or other electronic means as a defense to the formation of a contract, and each such Party forever waives any such defense.

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IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of the day and year first above written.

Exhibit 10.3

FORM OF EMPLOYEE MATTERS AGREEMENT

between

WESTERN DIGITAL CORPORATION

and

SANDISK CORPORATION

dated as of

[·], 2024

i

ii