Development

Development Schedule

Toshiba shall make commercially reasonable efforts to perform the development (“Development”) in accordance with the Development schedule and responsibility as specified in Exhibit A hereto. However, Toshiba’s compliance to the Development schedule is contingent upon Company’s compliance with its Development schedule and responsibilities as specified in Exhibit A.

If any Party anticipates any delay from the Development schedule, such Party shall promptly notify the other Parties in writing and the Parties shall discuss in good faith a solution.

Changes of Development

Inspection

Within five (5) days after the date the Parties exchange signature pages to this Agreement, Company shall inspect the deliverables specified in Exhibit A hereto (“Deliverables”) to determine whether they meet the Specifications. The Development shall be deemed completed upon TAEC and Toshiba’s receipt of written approval notice of the Deliverables provided by Company based on the template attached hereto as Exhibit C, which approval shall not be unreasonably withheld by Company. If Company does not provide either (i) written approval notice to TAEC and Toshiba or (ii) a written reason for rejection within such time frame, the Deliverables shall be deemed approved by Company, and the Development shall be completed.

If Company determines that the Deliverables do not meet the Specifications and rejects any or all of the Deliverables within the time frame set forth in Section 4.1 above, Company shall notify TAEC and Toshiba of the reason for the rejection in writing. If the Parties agree that such rejected Deliverable do not meet the Specifications, Company may return such rejected Deliverables to TAEC within two (2) weeks from such agreement among the Parties, and TAEC shall return such rejected Deliverables to Toshiba immediately. Also within six (6) months of such agreement, Toshiba shall repair or replace, at its sole option, such rejected Deliverables with conforming ones and provide an evaluation report related to the rejected Deliverables to Company. The Parties shall repeat the acceptance procedure as set forth in this Section 4.

Except as otherwise contemplated by this Agreement, the obligations of Toshiba and TAEC set forth in this Section 4 constitute their exclusive liability and obligation, and Company’s sole remedy, arising out of any defect of Deliverables.

Payment

Company shall pay to TAEC the fees as consideration for the Development (“Development Fees”) according to the payment schedule set forth in Exhibit A.

TAEC shall pay the Development Fees to Toshiba upon the terms and conditions separately agreed between TAEC and Toshiba.

All payments hereunder shall be made free and clear of, and without reduction for, any and all taxes, including, without limitation, sales, use, value added, withholding or similar taxes, excluding taxes which are imposed on the income of TAEC.

Cancellation

Confidential Information

For the purpose of this Agreement, “Confidential Information” means information disclosed in written, recorded, graphical or other tangible form which is marked as “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, and/or orally or in other intangible form, identified as confidential at the time of disclosure and confirmed as confidential information in writing within thirty (30) days of its initial disclosure.

The receiving Party agrees to safeguard the Confidential Information and to keep it in confidence and to use at least the same degree of care that is used in the protection of its own confidential information, which shall in no event be less than a reasonable standard of

is already known to the receiving Party at the time of its receipt from the disclosing Party as evidenced by the receiving Party’s records; or

is or becomes publicly available without breach of this Agreement or any other agreement or confidentiality obligation by the receiving Party; or

is rightfully received by the receiving Party from a third party without any obligation of confidentiality; or

is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.

The receiving Party shall not modify, alter, disassemble, recompile or reverse engineer such Confidential Information without the prior written consent of the disclosing Party.

If the receiving Party is required to disclose any Confidential Information pursuant to a judicial or governmental order or process, the receiving Party shall notify the disclosing Party promptly in advance and use reasonable efforts to preserve the confidentiality in complying with such required disclosure, including obtaining a protective order to limit such disclosure and use of the information so disclosed to the purposes for which the order is issued. Moreover, unless disclosure of Confidential Information pursuant to a judicial or governmental order or process results in such Confidential Information becoming publicly available, disclosure pursuant to a judicial or governmental order will not excuse subsequent disclosure of the Confidential Information so disclosed.

All Confidential Information shall remain the property of the disclosing Party. Upon request by the disclosing Party or upon expiration or termination of this Agreement, whichever is earlier, the receiving Party shall, at choice of the disclosing Party, return or destroy with submission of satisfactory proof of destruction all Confidential Information, including any and all copies thereof. Notwithstanding the foregoing, however, receiving Parties are not required to delete Confidential Information stored in a confidential and restricted manner on disaster recovery systems.

No Party shall disclose the terms and conditions of this Agreement other than as expressly provided in this Agreement without the prior written consent of the other Parties.

Subcontractors

Intellectual Property Right

If an invention is made solely by the employees of any of the Parties in the course of or in connection with the Development, the title and interest to any intellectual property rights for such invention shall belong solely to the Party whose employees made such invention.

If an invention is jointly made by the employees of both Company and Toshiba in the course of or in connection with the Development, Company and Toshiba shall jointly own the title and interest to any intellectual property rights for such invention, and each Party shall be entitled to use and exploit such jointly owned invention and intellectual property rights without obtaining any consent from or payment to the other Party. In the event that a Party intends to grant a license for such jointly owned inventions and/or intellectual property rights to any third parties, the Party shall obtain prior written consent from the other Party; provided, however that any consent shall not be unreasonably withheld in the case of a license to an Affiliate. All expenses incurred in obtaining and maintaining the jointly owned patent shall be equally shared by both Parties except as otherwise agreed in writing.

Unless expressly provided for in this Agreement, no right or license to each Parties’s intellectual property is granted or implied to any of the other Parties under this Agreement. Notwithstanding any other provisions of this Agreement, all disputes, controversies or differences which may arise between Company and Toshiba in connection with the ownership of intellectual property rights contemplated by Section 9.1 and 9.2 above shall be determined and settled under the principles of US intellectual property law and practice.

Supply Relationship

No later than [***], Company shall order from TAEC [***] units of Product (“Agreed Quantity”) at a price of [***], and TAEC shall use its commercially reasonable efforts to deliver such [***] units of Product in accordance with the delivery schedule as follows:

Amount (Units)

Date to delivery at the principal place of business of
Company

[***]

[***]

[***]

[***]

[***]

[***]

After delivery of the Agreed Quantity, Company shall provide a [***] rolling forecast to TAEC every month. If TAEC believes that TAEC may not be able to timely fulfill such forecast except for the quantity covered by POs (hereinafter defined)„ then the Company and TAEC shall promptly discuss in good faith a delivery schedule of Products that is mutually agreeable to both Parties. TAEC shall use its commercially reasonable efforts to deliver Products to Company within [***] lead time from TAEC’s receipt of purchase order placed by Company for the Products in accordance with the terms and conditions separately agreed upon by the Parties (“PO(s)”), provided, however, that Company and TAEC agree that (a) other than the specific PO terms agreed to in writing by the Parties, the terms of this Agreement shall control over terms included in purchase order or purchase order acknowledgment documentation not specifically agreed to by the parties; and (b) TAEC may adjust the delivery schedule of Products so long as (i) the adjustment will not affect Company’s production schedule solely as determined in good faith by Company and (ii) TAEC provides prompt written notice to Company that such adjustment is necessary for TAEC to optimize its production process. The Parties hereby agree that the purchase price of any Products sold or purchased pursuant to this Section 10.2 shall be $[***] per unit of Product and any deficiency or delay by the Company with respect to the forecast shall not be deemed a material breach of this Agreement. The Parties also agree that the use of Product contemplated by this Agreement shall not be an “unintended use” under any PO or other agreement applicable to the Products. The terms and conditions for the purchase and sale for the quantity of Products exceeding the Agreed Quantity shall be separately agreed between TAEC and Company in writing

In case TAEC intends to discontinue the manufacture of Product, TAEC shall provide Company with twelve (12) months prior notice which informing Company the last day of the supply of the Product and obtain an approval from Company for the discontinuation. Notwithstanding the foregoing, in case Company does not place PO which orders more than [***] units of Product to TAEC for consecutive twelve (12) month, TAEC may discontinue the supply of Product with written notice.

Warranty

THE DELIVERABLES ARE PROVIDED AS IS”. EXCEPT AS SET FORTH IN THIS AGREEMENT, TOSHIBA AND TAEC DISCLAIM ALL WARRANTIES AND REPRESENTATIONS RELATING TO THE PRODUCT, DELIVERABLES, OR DEVELOPMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING OR INDUSTRY PRACTICE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.

COMPANY WARRANTS THAT COMPANY SHALL USE THE DELIVERABLES ONLY FOR THE PURPOSE OF ITS INTERNAL EVALUATION FOR ITS PRODUCTS WHICH INCORPORATE THE DELIVERABLES.

Indemnification

Toshiba shall defend, hold harmless and indemnify Company at Toshiba’s cost and expense against any claim or suit brought against Company alleging that Products or Deliverables infringe patent, copyright, trade secret or any other intellectual property rights of any third party with regard to Product or Deliverables in such claim or suit, provided that Company gives Toshiba prompt written notice of such claim or suit, the right to maintain sole control of the defense and all negotiations for settlement of such claim or suit as long as such settlement does not require a payment by Company or adversely affect Company’s business or prospects, and reasonably cooperates with Toshiba, if requested, in the defense of such a claim or suit.

Company shall defend, hold harmless and indemnify Toshiba and TAEC at Company’s cost and expense against any claim or suit brought against Toshiba or TAEC for infringement of patent, copyright, trade secret or any other intellectual property rights of any third party with regard to Product or Deliverables in such claim or suit to the extent that (i) such claim or suit arises from Toshiba’s or TAEC’s compliance with or implementation of any of Company’s designs or written requirements or written specifications ; or (ii) such claim or suit is based on the intellectual property rights which Company or customer of Company has an interest or a license (other than any interest or license associated with Toshiba or TAEC), provided that Toshiba and TAEC give Company prompt written notice of such claim or suit, the right to maintain sole control of the defense and all negotiations for settlement of such claim or suit as long as such settlement does not require a payment by Toshiba or adversely affect Toshiba’s business or prospects, and reasonably cooperates with Company, if requested, in the defense of such a claim or suit.

Company shall defend, hold harmless and indemnify Toshiba and TAEC at Company’s cost and expense against any claim or suit brought against Toshiba and/or TAEC caused by any use and application of Deliverables to human body by Company.

The Indemnification provisions set forth in this Section 12 shall apply to the Product sold for commercial purpose as provided in Section 10 in accordance with the limitation of liability set forth in the purchase and sales agreement for the quantity of Products and supersedes any prior agreements concerning the foregoing Product between or among the Parties.

Limitation of Liability

Discontinuance

Export Control

Term

This Agreement shall commence on the Effective Date and continue in full force and effect until the date on which the payment is completed pursuant to Section 5 which specified in Exhibit A, unless otherwise earlier terminated according to the terms and conditions herein.

Notwithstanding the foregoing, the provisions of Section 7 shall remain effective for three (3) years after termination or expiration of this Agreement, and the provisions of Sections 9, 10, 11, 12, 13, 14, 15, 16 and 17 shall survive any termination or expiration of this Agreement.

Miscellaneous

The terms and conditions of this Agreement shall be subject to and construed in accordance with the laws of the state of New York, U.S.A., without reference to rules or principles of its conflict of laws. All disputes, controversies or differences which may arise between the Parties in connection with the interpretation or performance of this Agreement, that cannot be resolved by a mutual amicable arrangement between the Parties hereto, shall be finally settled by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by three (3) arbitrators appointed in accordance with the Rules. Arbitration proceedings shall be conducted in the English language and shall take place in the state of New York, U.S.A.. The decision of the arbitration proceedings shall be final and binding upon all Parties, and may be entered and enforced in any court of competent jurisdiction.

No Party shall be liable in any way for failure or delay in performing its obligations under this Agreement when such failure or delay is directly or indirectly due to Acts of God, war, threat of war, hostilities, sanctions, mobilization, blockade, embargo, detention, revolution, riot, looting, striking, lockout, accident, fire, explosion, flood, inability to obtain fuel, power, raw materials, labor, container or transportation facilities, breakage of machinery or apparatus, government order or regulation, or any other cause beyond its reasonable control (hereinafter referred to as “Force Majeure”) provided that the Party relying upon this provision gives prompt written notice thereof and takes all steps reasonably necessary to mitigate the effects of the Force Majeure event. Notwithstanding the foregoing, the occurrence of any event of Force Majeure shall not relieve Company of its obligation to make payment of the amount due to TAEC hereunder. If a Force Majeure event extends for a period in excess of 30 days in the aggregate, then any Party may immediately terminate this Agreement upon written notice to the other Parties. In the event of the termination of this Agreement by Company due to Force Majeure, Toshiba shall be entitled to invoice for the its costs of Development up to the point of termination which shall not exceed the total Development Fees and Company shall pay such invoice in accordance with the provisions herein.

It is understood by Company that Toshiba and TAEC are engaged in the development business throughout the world and may, in the normal course of their business, develop devices similar to Product for other customers. Further, the Parties agree that this Agreement shall not limit the independent development by any Party of any products involving technology or information of a similar nature to that disclosed hereunder. Toshiba and TAEC agree to sell Products developed under this Agreement through Toshiba Corporation Semiconductor & Storage Products Company and not to sell such Products to any third party, including Toshiba’s internal company except for Toshiba Corporation Semiconductor & Storage Products Company, without Company’s prior written consent.

If any provision of this Agreement or the application of any such provision to any person or circumstance shall be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof.

Neither this Agreement (including any exhibits hereto) nor any of the rights and obligations arising hereunder may be assigned or transferred in whole or in part to any third party by any Party hereto without the prior written consent of the other Parties, and any attempted assignment in violation of this provision shall be void; provided, however, that no consent shall be required for any assignment or transfer effected in connection with a change of control of Company. Notwithstanding the foregoing, Toshiba may assign without the Company’s consent its obligations under this Agreement to a purchaser of substantially all the business to which this Agreement relates so long as such purchaser is not, directly or indirectly, a competitor of the Company which develops, manufactures, sells or distributes any endoscope products.

This Agreement (which includes in all cases Exhibit A hereto) supersedes all prior discussions and agreement between the Parties with respect to the subject matter hereof, and may not be changed, altered or amended except in writing signed by duly authorized representatives of the Parties hereto. In the event of any inconsistency among this Agreement and purchase order or other documents, the provisions of this Agreement shall prevail.

: /s/ Johnny Wang

: /s/ Tomoharu Watanabe

: General Manager,

  Memory Division,

  Semiconductor & Storage

  Products Company

: /s/ Shardul Kazi

/s/