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EXHIBIT 10.45
SUPPLY AGREEMENT
BETWEEN
STORMEDIA INCORPORATED
AND
SEAGATE TECHNOLOGY, INC.
This Supply Agreement ("Agreement") is entered into by and between StorMedia
Incorporated, a Delaware corporation ("StorMedia") and Seagate Technology, Inc.,
a Delaware corporation ("Seagate"). This agreement is effective as of January 1,
1997.
WHEREAS, Seagate makes and sells computer storage devices which utilize
thin film disks, and
WHEREAS, StorMedia is a manufacturer of thin film disks for hard disk
drives and wishes to sell such thin film disks to Seagate.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 Products. 2.5 inch and 3.5 inch aluminum and
glass/ceramic substrate thin film disks and such other disk products as the
parties shall hereafter agree in writing manufactured by StorMedia.
1.2 Shipment Date. The date as of which Product is
shipped by StorMedia for delivery to Seagate.
2. PURCHASE COMMITMENT
2.1 Purchase Commitment. StorMedia shall perform Product
qualification in a timely manner to ensure that Product meets Seagate
specifications. Seagate shall purchase, from any qualified StorMedia facility,
[*] disks each fiscal month. The [*] disks per month is based on the assumption
that Seagate purchases [*] 3.5 inch aluminum disks and [*] 2.5 inch aluminum
disks each fiscal month and that StorMedia has qualified Product in a timely
manner. The purchase commitment is, therefore, contingent upon timely Product
qualification.
2.2 Supply Commitment. During the term of this Agreement,
and for so long as Seagate is not in breach of this Agreement, StorMedia shall
reserve for Seagate [*] disks per month capacity subject to Paragraphs 3.1 and
3.2.
[*] Confidential treatment has been requested.
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3. FORECASTS AND PURCHASE ORDERS
3.1 Forecasts. The parties shall periodically agree to a
reasonable forecasting procedure.
3.2 Purchase Orders. Seagate shall order Products by
issuing written purchase orders ("Purchase Orders"). StorMedia shall ship
Products in accordance with such Purchase Orders. Purchase Orders must be placed
thirty (30) days in advance of the Shipment Date set forth in the applicable
Purchase Order. Seagate may request a Shipment Date with a shorter lead time and
StorMedia shall use its best efforts to meet such date.
3.3 Terms of Purchase Orders. Purchase Orders shall
include the Products being purchased, quantity requested, price to be paid under
the invoice and destination address and requested Shipment Date(s).
3.4 General Terms and Conditions. Purchase Orders will be
governed by the terms of this Agreement notwithstanding any contrary terms and
conditions contained in the Purchase Order or Order Acknowledgment unless
otherwise mutually agreed in writing.
3.5 Shipment. StorMedia shall deliver the Products to
Seagate F.O.B., StorMedia's facility. Seagate shall bear all freight, insurance,
duty and associated shipping and delivery charges from the Facility.
4. PRODUCT PRICE
Price. Prices will be set [*], in U.S. dollars, once every [*]
StorMedia represents that the prices charged will be the lowest price offered by
StorMedia, with terms no less favorable than accorded to any other similarly
situated customer. If StorMedia offers any customer lower prices and/or more
favorable terms and conditions, it shall make those same prices, terms and
conditions available to Seagate effective as of the date they were available to
the other customer.
5. TERM AND TERMINATION
5.1 Term. This Agreement shall terminate on March 31,
1999.
5.2 Termination. This Agreement may be terminated prior
to the end of its term by either party if the other party is in material default
of this Agreement and such default is not corrected within thirty (30) days of
receipt of written notice setting forth such default. Such termination shall be
effected by delivery to the defaulting party of written notice of termination.
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*Confidential treatment requested.
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6. CONFIDENTIAL INFORMATION
6.1 Disclosure. The parties intend to disclose to each
other certain Confidential Information (as defined below) in the course of the
relationship established hereunder.
6.2 Definition. As used herein, "Confidential
Information" shall include all proprietary information, technical data, trade
secrets or know-how disclosed by StorMedia or Seagate hereunder, (including
without limitation, research results, product plans, products, services,
software, inventions, processes, formulas, technology, designs, drawings,
hardware configuration information, and marketing, finance or other business
information), which will be marked or labeled clearly as "CONFIDENTIAL" or with
a similar legend. Any proprietary or confidential disclosure that is made orally
or by visual inspection of equipment or parts shall be promptly confirmed and
summarized in writing within thirty (30) days of disclosure by the disclosing
party if such disclosure is to be included within the Confidential Information
under this Agreement. Confidential Information shall not include information
which the receiving party demonstrates is: (a) already in the possession of the
receiving party at or before the time of disclosure hereunder as shown by the
receiving party's files existing at the time of disclosure; or (b) publicly
known prior to or after the time of disclosure through no wrongful act of the
receiving party; or (c) lawfully received by the receiving party from a third
party without obligation of confidence; or (d) independently developed by the
receiving party without use of the Confidential Information of the disclosing
party; (e) approved for release by written authorization of the disclosing
party; or (f) ordered disclosed by the valid legal process of a court or
governmental agency having jurisdiction; provided, however, that the receiving
party shall notify the disclosing party in advance of any such disclosure and
shall use its reasonable best efforts to obtain confidential treatment of any
such disclosure.
6.3 Use of Confidential Information. StorMedia and
Seagate each agree that at all times, and notwithstanding any termination,
expiration, or cancellation hereunder, it will hold in strict confidence and not
disclose to any third party Confidential Information of the other, except as
approved in writing by the other party to this Agreement, and it will use the
Confidential Information for no purpose other than pursuing the transactions and
relationship contemplated by this Agreement. The parties shall maintain
reasonable procedures to prevent accidental or other loss of any Confidential
Information of the other party and shall exert at least the same degree of care
as it uses to protect its own Confidential Information.
6.4 Return of Materials. Upon termination, cancellation
or expiration of this Agreement, or upon written request of the other party,
each party shall promptly return to the other all documents or other tangible
materials representing the other's Confidential Information and all copies
thereof.
6.5 No License. The parties recognize and agree that
nothing contained in this Agreement shall be construed as granting any property
rights, by license or otherwise, to any Confidential Information of the other
party disclosed pursuant to this Agreement, or to any invention or any patent
right that has issued or that may issue, based on such Confidential Information.
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6.6 Term of Nondisclosure Obligation. Notwithstanding the
term of this Agreement, the obligations of the Company and Recipient hereunder
with respect to any Confidential Information shall continue for a period of
three (3) years from the date such Confidential Information was disclosed to it
hereunder.
7. NOTICES
All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, or otherwise delivered by hand, by telecopy (with receipt
confirmed), or by commercial express courier service, addressed as follows:
To StorMedia: StorMedia Incorporated
000 Xxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
With a copy to: Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. X'Xxxxx
To Seagate: Seagate Technology, Inc.
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
With a copy to: Seagate Technology, Inc.
000 Xxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attn: Corporate Contracts
Such notices shall be deemed to have been served when delivered or, if delivery
is not accomplished by reason of some fault of the addressee, when tendered.
8. GENERAL PROVISIONS
8.1 Governing Law. The substantive laws of the State of
California govern this Agreement.
8.2 Severability. If any section or subsection of this
Agreement is found by competent judicial authority to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of any
such section or subsection in every other respect and the remainder of this
Agreement shall continue in effect.
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8.3 Amendment. This written Agreement may be modified
only by a written amendment signed by persons authorized to so bind Seagate and
StorMedia.
8.4 Survival. The provisions of Section 7 and all other
obligations and duties which by their nature survive the expiration or
termination of this Agreement shall remain in effect beyond any expiration or
termination.
8.5 Force Majeure. Neither party shall be responsible for
failure to fulfill its obligations under this Agreement due to fire, flood, war
or other such cause beyond its control and without its fault or negligence
provided it promptly notifies the other party.
8.6 Assignment. Neither party shall assign this Agreement
or any rights hereunder without the prior written consent of the other party,
except that either may assign the Agreement to a wholly-owned subsidiary without
the other's consent if the original party remains liable for such assignee's
performance hereunder.
8.7 Waiver. The waiver by either party of any instance of
the other party's noncompliance with any obligation or responsibility herein
shall not be deemed a waiver of subsequent instances or of either party's
remedies for such noncompliance.
8.8 Compliance with Laws. Each party will comply with all
applicable federal, state and local laws, regulations and ordinances including,
but not limited to, the regulations of the U.S. Government relating to the
export or re-export of machines, commodities, software and technical data
insofar as they relate to the activities under this Agreement. Seagate agrees
that Products provided under this Agreement are subject to restrictions under
the export control laws and regulations of the United States of America,
including but not limited to the U.S. Export Administration Act and the U.S.
Export Administration Regulations and Seagate agrees to comply with all
applicable laws and regulations.
8.9 Entire Agreement. This Agreement constitutes the
entire and exclusive Agreement between the parties hereto with respect to the
subject matter hereof and supersedes and cancels all previous registrations,
agreements, commitments and writings in respect thereof including but not
limited to the supply agreement effective as of June 29, 1995.
8.10 Arbitration.
(a) All disputes which may arise hereunder shall be
resolved by binding arbitration, and without resort
to the courts (except to compel arbitration or to
enter judgment in accordance therewith). The
arbitrators shall be appointed as follows: each party
shall appoint one arbitrator; the two arbitrators
thus appointed shall choose the third arbitrator who
shall act as the presiding arbitrator of the
tribunal. The parties agree that all arbitrators
shall be governed by the Rules of the American
Arbitration Association; that such arbitration
proceedings
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shall be conducted in Santa Xxxxx County, California,
and that the result of such arbitration shall be
binding upon the parties, and may be entered as a
judgment in any court or tribunal with jurisdiction
over any party with the same force and effect as a
judgment rendered by such a court or tribunal.
(b) The arbitration proceedings and all pleadings and
written evidence shall be in the English language.
Any written evidence originally in a language other
than English shall be submitted in English
translation accompanied by the original or a true
copy thereof.
(c) The prevailing party in such proceeding shall be
entitled to collect reasonable attorneys fees from
the other party.
STORMEDIA INCORPORATED SEAGATE TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxx
Title: Chief Executive Officer Title: Executive VP, CAO and CFO
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Dated: May 30, 1997 Date: June 4, 1997
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