EX-10.10 6 dex1010.htm FORM OF AMENDED AND RESTATED INFORMATION TECHNOLOGY SERVICES AGREEMENT FORM OF AMENDED AND RESTATED INFORMATION TECHNOLOGY SERVICES AGREEMENT
Exhibit 10.10
FORM OF AMENDED AND RESTATED
INFORMATION TECHNOLOGY SERVICES AGREEMENT
THIS AMENDED AND RESTATED INFORMATION TECHNOLOGY SERVICES AGREEMENT (this “Agreement”), is made and entered into as of , 2005, (the “Amendment Date”) by and between SPANSION INC., a Delaware corporation (“Spansion”), on behalf of itself and its Affiliates, and ADVANCED MICRO DEVICES, INC., a Delaware corporation (“AMD”), on behalf of itself and its Affiliates. Spansion and AMD are hereinafter collectively referred to as the “Parties” and individually as a “Party.”
WHEREAS, the Parties hereby desire to amend and restate that Information Technology Agreement.
NOW, THEREFORE, in consideration of the mutual representations, covenants and other terms and conditions contained herein, the Parties hereby amended and restate that Information Technology Services Agreement and agree as follows:
| 1. | DEFINITIONS |
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to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such statute or regulation. In addition, any references to “either Party” and/or the “other Party,” etc. shall be deemed to refer to AMD and Spansion, respectively, as the context indicates.
| 2. | TERM |
| 3. | MANAGEMENT, COMMUNICATION, INFORMATION AND ESCALATION RIGHTS |
3.1 In General. Spansion shall have day-to-day management control over its receipt of the Services and its implementation of Systems. Subject to the terms of this Agreement, this will include decisions regarding (a) its information technology budget, (b) the level of Services it requires, (c) the Systems it chooses to implement, and (d) the performance of its service providers, including its response to failures by AMD to provide Services in accordance with the Service Levels and any material breach by AMD of its obligations under this Agreement. To administer its receipt and use of these Services and Systems, Spansion will employ a Spansion Services Manager as described below, and will consult with the AMD Services Advisor and Fujitsu Services Advisor in Spansion’s reasonable judgment.
3.2 Spansion Services Manager. Spansion shall employ an individual reasonably knowledgeable about the provision of information technology services similar to those provided by AMD under this Agreement (the “Spansion Services Manager”). The Spansion Services Manager shall (a) have overall responsibility for managing and coordinating the performance of Spansion’s obligations under this Agreement and for monitoring the performance of obligations by AMD under this Agreement, (b) be authorized to act for and on behalf of Spansion with respect to all matters relating to this Agreement, and (c) shall be the primary contact with the AMD Services Advisor and Fujitsu Services Advisor. The Spansion Services Manager will report to and be supervised by a member of the senior management of Spansion.
3.3 AMD Services Advisor. AMD shall appoint at AMD’s expense an individual (the “AMD Services Advisor”) who will serve as the primary AMD representative under this Agreement. The AMD Services Advisor shall (a) have overall responsibility for managing and coordinating the performance of AMD’s obligations under this Agreement and (b) be authorized to act for and on behalf of AMD with respect to all matters relating to this Agreement, and (c) shall be the primary contact with the Spansion Services Manager and Fujitsu Services Advisor.
3.4 Fujitsu Services Advisor. Fujitsu shall appoint at Fujitsu’s expense an individual (the “Fujitsu Services Advisor”) who will serve as the primary Fujitsu representative to Spansion regarding Spansion’s receipt of the Services. The Fujitsu Services Advisor will serve
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in an advisory capacity to Spansion only and will not have independent veto rights or other day-to-day decision-making authority over Spansion’s receipt, use and oversight of the Services. The Fujitsu Services Advisor will act in the best interests of Spansion, not Fujitsu. Spansion shall make available to the Fujitsu Services Advisor office space and facilities upon the Fujitsu Services Advisor’s reasonable request as and when reasonably required by the Fujitsu Services Advisor to enable the Fujitsu Services Advisor to perform his or her responsibilities hereunder. In the event that Fujitsu’s Aggregate Ownership Interest falls below ten percent (10%) and Fujitsu no longer provides services to Spansion that are similar to the Services, either Spansion or Fujitsu may, but shall not be required to, by written notice to the other and AMD, terminate the role of the Fujitsu Services Advisor, and, upon such termination, the Fujitsu Services Advisor shall have no further rights or obligations hereunder.
3.5 Information Exchange and Information Rights. Spansion shall keep AMD informed about those aspects of Spansion’s business that could reasonably be expected to have an effect on the demand for, or provision of, the Services. AMD will provide to the Fujitsu Services Advisor copies of all reports and other written information relating specifically to the Services that AMD provides Spansion herein, at the same time AMD provides such reports and information to Spansion, including a copy of the monthly service reports provided Spansion under Section 4.8. At any time, upon the Fujitsu Services Advisor’s reasonable request, the Spansion Services Manager shall provide the Fujitsu Services Advisor additional information regarding the performance of the Services and the associated Fees. AMD and Spansion, through the AMD Services Advisor and the Spansion Services Manager, will give notice, and otherwise keep the Fujitsu Services Advisor informed, of all proposals and discussions between the Spansion Services Manager and the AMD Services Advisor, or their respective supervisors, relating to material aspects of this Agreement and the provision of the Services herein, including all Changes proposed under the Change Control Procedures set forth in Section 3.9, any Special Projects proposed pursuant to Section 5, all audits conducted by Spansion, and all budget meetings relating to the Services or Systems. Such notice shall be given by the Parties promptly upon initiation of such discussions. In addition, AMD and Spansion will, upon the Fujitsu Service Advisor’s request and subject to applicable confidentiality restrictions, grant access to the Fujitsu Service Advisor to any meeting, whether telephonic or in-person, between the Spansion Services Manager and the AMD Services Advisor regarding performance of the Services, the Fees, and any proposed Special Projects or Changes.
3.6 Services Advisor Escalation Rights. If at any time, the Fujitsu Services Advisor believes in good faith that (a) the Services being provided to Spansion under this Agreement are not being provided in accordance with the applicable Service Levels, (b) AMD is in material breach under this Agreement, (c) an audit pursuant to Section 10.12 should be conducted, or (d) Spansion is not being charged fairly for the Services it is receiving under this Agreement, then the Fujitsu Services Advisor will notify the Spansion Services Manager in writing. If after a reasonable period of time the Fujitsu Services Advisor does not believe that the concern raised has been adequately addressed, the Fujitsu Services Advisor shall be entitled to notify Spansion’s Board of Directors (the “Board of Directors”) of the Fujitsu Service Advisor’s concerns. Any such notice shall be in writing and shall be provided to all Board members simultaneously, with a copy also provided simultaneously to Spansion’s chief financial officer and the AMD Services
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3.7 Contract Amendments.
(a) Spansion and AMD may only amend this Agreement upon the approval of the Board of Directors. The Board of Directors may delegate its decision-making authority to Spansion management as it deems appropriate; provided, however, that any Special Project, or Systems or Services purchase of greater than Five Hundred Thousand Dollars ($500,000) payable in any Contract Year will require specific approval from the Board of Directors.
(b) For so long as Fujitsu maintains at least a ten percent (10%) Aggregate Ownership Interest, AMD and Spansion may not amend this Agreement without the prior written consent of Fujitsu (such consent not to be unreasonably conditioned, delayed or withheld) to the extent an amendment: (i) reduces the rights of the Fujitsu Services Advisor; (ii) reduces Fujitsu’s right to consent to amendments set forth in this Section; (iii) establishes a basis for charging Spansion for the Services which is different than AMD’s reasonable, good faith estimates of actual costs plus five percent (5%), as set forth in Section 10.7, or materially alters the cost allocation methodologies described in Section 10.7; (iv) eliminates or reduces AMD’s obligation to treat Spansion on par with other AMD divisions and Affiliates (taking into account that this Agreement provides for a cost plus allocation budgeting structure that may not apply to other AMD divisions or Affiliates); or (v) materially affects Spansion’s rights under this Agreement (e.g., eliminates the requirement that all Changes require Spansion’s consent). Notwithstanding any of the foregoing, changes to Fees or Services resulting from the Change Order Procedures, the Annual Budget Process or the Fee reconciliation process described in Section 10.9 do not constitute amendments of the Agreement for purposes of this Section 3.7.
3.8 Approvals. Spansion shall reasonably cooperate with AMD by making available, as requested by AMD, management decisions, information, approvals or disapprovals, and acceptances or rejections in a reasonably timely manner so that AMD may fulfill its obligations under this Agreement.
3.9 Change Control Procedures. The Parties shall use the following procedures (the “Change Control Procedures”) to implement Changes.
(a) General.
(i) Changes. Changes shall be implemented only by mutual agreement of the Parties through these Change Control Procedures, except as may be necessary on an emergency, temporary basis to maintain the continuity of the Services. The Parties acknowledge and agree that the implementation of a Change does not necessarily require an increase in the Fees or other fees payable by Spansion or a reduction in the scope of Services or in Service Levels provided hereunder, and that any change in the Fees or other amounts payable by Spansion as a result of a Change will be an adjustment in accordance with the provisions of Section 10. All decisions regarding Changes are subject to the approval by the Board of Directors, which may delegate its decision-making authority to Spansion management as it deems appropriate. The Parties acknowledge and agree that not all modifications to the Services
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or Systems may constitute Changes; as part of the routine operation of Spansion and AMD, modifications that are not material or significant, as determined by AMD in its reasonable judgment, may be conducted without recourse to the Change Control Procedures; provided that the Spansion Services Manager is notified — on a regular basis consistent with AMD’s internal processes — of the modifications being implemented on Spansion’s behalf or that affect Spansion Systems, with a copy of such report provided to the Fujitsu Services Advisor.
(ii) Schedule. Unless otherwise agreed by Spansion, with respect to all Changes, AMD shall (a) schedule Changes so as not to unreasonably interrupt Spansion’s business operations, other than those Changes made on a emergency basis to maintain the continuity of the Services, (b) prepare and deliver to Spansion each month a rolling schedule for ongoing and planned agreed upon Changes for the next thirty (30) day period, and (c) monitor the status of Changes against the applicable schedule. AMD shall implement and maintain a continuously updated, electronic log of such emergency Changes that will be accessible to the Spansion Services Manager and the Fujitsu Services Advisor at all times.
(b) Requests for Changes. Requests for Changes shall be submitted for review in accordance with the Change Control Procedures, and shall include a reasonably detailed description of the requested Change together with the basis for such Change. All requests for Changes by Spansion shall be communicated to AMD through the Spansion Services Manager, his or her supervisor, or his or her authorized designee.
(i) Changes Initiated by Spansion. Within ten (10) business days after AMD receives a request from Spansion for a Change, either AMD or a joint project team working on the Service to be impacted, as appropriate, shall prepare and provide to Spansion an initial written proposal for the Change (a “Change Proposal”), which proposal will include AMD’s initial proposals regarding (A) the Services and the applicable schedule for performing the Services, including but not limited to Spansion’s related obligations, to effect the Change, (B) the applicable Service Levels resulting from the Change, (C) the resources required to perform Services effecting the Change and resulting from the Change, (D) the Fees for Services, and (E) any additional Systems or areas that are reasonably likely to be impacted by the proposed Change. The Change Proposal shall also contain a description of any other anticipated costs that Spansion will incur as a result of the Change that it would otherwise not have incurred. AMD will also indicate the areas of the Change Proposal where additional analysis may be required to complete the Change Proposal. On a schedule to be agreed upon by the Parties in the circumstances, but presumed not to exceed thirty (30) days after receipt of Spansion’s request, AMD will deliver to Spansion a completed Change Proposal. Within ten (10) business days after receiving such Change Proposal, Spansion shall either approve the Change Proposal, notify AMD that Spansion desires to discuss the Change Proposal further, or withdraw the request for such Change. Spansion’s failure to approve the Change Proposal or notify AMD that Spansion
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desires to discuss the Change Proposal further within this ten (10) business day period shall be deemed a rejection of the Change Proposal, and the Change shall not be implemented.
(ii) Changes Initiated by AMD. Concurrent with the submission of a request for a Change by AMD, either AMD or a joint project team working on the impacted Service, as appropriate, shall provide to Spansion a Change Proposal containing the information specified in subparagraph (i) above. Within ten (10) business days after receiving such proposal, Spansion shall either approve the Change Proposal, notify AMD that Spansion desires to discuss the Change Proposal further, or reject the requested Change. Spansion’s failure to approve the Change Proposal or notify AMD that Spansion desires to discuss the Change Proposal further within this ten (10) business day period shall be deemed a rejection of such request, and the Change shall not be implemented. If Spansion rejects the request or does not respond to the request, then the AMD Services Advisor may notify all members of the Board of Directors by simultaneous notice, with a copy to the Spansion chief financial officer (or other officer who supervises the Spansion Services Manager, if applicable) and to the Fujitsu Services Advisor, of the rejection of the Change Proposal and may request that the Board of Directors determine whether the Change should be made by or for Spansion.
(c) Further Discussion of Changes. If within ten (10) business days after receipt of a Change Proposal, Spansion notifies AMD that Spansion desires to discuss the proposed Change further, the Spansion Services Manager and AMD Services Advisor will promptly consider the Change Proposal in person or by telephone and will attempt in good faith to develop a mutually acceptable Change Proposal. The Spansion Services Manager will notify the Fujitsu Services Advisor of the proposed meeting and the Fujitsu Services Advisor may attend any such meeting.
(d) Outside Bids. Notwithstanding any discussions regarding Change Proposals, Spansion shall have the right to request, evaluate and accept proposals from third parties regarding Changes; provided that such Changes are only for Location Based Services and not for Enterprise Services and such Changes do not relate to AMD-proprietary Software or Systems, do not affect the AMD Infrastructure, the provision of Services, and would not result in the breach of an obligation that AMD may have with a third party. Spansion will notify AMD when Spansion is considering seeking proposals from third parties regarding Changes and provide AMD the first opportunity to perform the Change. In the event AMD rejects such Change Proposal, and the Parties, after reasonable negotiations, fail to come to an agreement in connection therewith, Spansion shall have the right to escalate the issue to the Board of Directors.
(e) Implementation of Changes. All Changes are subject to the written approval of the Parties. Only following receipt of each Party’s written approval may AMD begin to implement the approved Change. Costs and fees for performance of additional work to implement the Change, if any, will be invoiced and paid in accordance with the schedule set forth in the agreed-upon Change Proposal; however, any Fee adjustments resulting from the Change will be implemented as part of the quarterly budget reconciliation process set forth in Section 10.9.
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(f) Emergency Changes. If a Service Level failure, reasonable safety concern, Governmental Authority or change in Applicable Law, requires an immediate Change to a System or Service, then AMD may implement such Change immediately upon notice to Spansion, with a copy to the Fujitsu Services Advisor. Any change in Fees, any System purchases for which AMD seeks reimbursement from Spansion, or any long-term, material degradation in Service Levels resulting from such Change, unless such degradation is unavoidably required in the circumstances (in which event AMD shall use all reasonable efforts to mitigate the impact of such degradation), shall be subject to the Change Control Procedures.
| 4. | SERVICES |
4.1 Services; Parity. AMD, either itself or through its Affiliates or subcontractors (subject to Section 4.6), shall provide the Systems and perform the services, functions, and responsibilities for Spansion identified in Exhibit 4.1 (the “Services”). Exhibit 4.1 may be updated by the Parties from time to time upon mutual agreement pursuant to the Change Control Procedures or the annual review of the Spansion IT budget and the Services described in Section 10.8 (the “Annual Budget Process”). The Services will include those services and Systems that AMD will also provide Spansion that AMD also provides on an enterprise-wide basis for AMD facilities generally (“Enterprise Services”) as well as Spansion Service Location-specific services and Systems that may be unique to any such Service Location (“Location Based Services”). AMD will provide Spansion the Services under terms (including those related to charges, cost allocation, service levels and technology) that are at least as favorable as those it provides any other AMD business unit, division or AMD Affiliate receiving similar services from AMD (or an AMD subcontractor), subject to any deviations agreed to by the Parties to address Spansion’s specific requirements as communicated to AMD and taking into account that this Agreement provides for a cost plus allocation budgeting structure that may not apply to other AMD divisions or Affiliates. The Services (including any new Services or Systems added pursuant to mutual agreement by the Parties) will evolve and be supplemented, modified, enhanced or replaced, reduced or eliminated over time as agreed upon by the Parties pursuant to the Change Control Procedures or as part of the Annual Budget Process. Fees are subject to the quarterly budget reconciliation process described in Section 10.9.
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assist Spansion’s return to compliance. AMD agrees to notify Spansion upon AMD’s discovery of any such non-compliance and will continue to provide all Services to the extent unaffected by such non-compliance. AMD will provide Spansion advance notice of any AMD Infrastructure changes, including technology upgrades, that may require Spansion to make changes to its own technical architecture.
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Spansion. AMD will promptly notify Spansion if Fujitsu or any Spansion Agent act or omission will cause, or has caused, a problem or delay in providing the Services. AMD will be excused from failure to meet a Service Level or otherwise perform its obligations under this Agreement only to the extent that a failure to meet such Service Level or otherwise perform its obligations was caused by the interference of a Spansion Agent or Fujitsu; provided such interference was not at the direction of AMD; and provided that AMD continues to use reasonable efforts to perform despite such interference and works with Spansion to resolve the problem and resume conformance with the Service Levels and performance of AMD’s obligations under this Agreement as soon as practicable.
| 5. | SPECIAL PROJECTS |
(a) a description of the services, functions and responsibilities AMD anticipates performing in connection with such Special Project;
(b) any impact on Service Levels, Spansion Systems, the AMD Infrastructure or the Enterprise Services, if any, associated with such Special Project;
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(c) a description of obligations of Spansion, if any, required for AMD to perform such Special Project;
(d) a schedule for commencing and completing such Special Project;
(e) AMD’s prospective Fees for such Special Project, either on a fixed fee or time and materials basis; and
(f) when appropriate, a description of any new software or equipment required in connection with such Special Project.
AMD shall not begin performing any Special Project until the Parties have agreed in writing upon the specifications, requirements, schedule and Fees for such Special Project pursuant to the Change Control Procedures. If AMD reasonably believes that a proposed Special Project would negatively affect the Services, the AMD Infrastructure, any AMD proprietary Software or AMD’s implementation of third party Software, either by reducing its performance or functionality, or increasing the cost to AMD, and Spansion still desires to continue with the Special Project despite AMD’s objections, the AMD Services Advisor may submit the matter to the Board of Directors for resolution; provided that any such notice to the Board of Directors must be in writing, must be submitted to all members of the Board of Directors simultaneously, and must also be provided to the Spansion chief financial officer (or other officer supervising the Spansion Services Manager, if applicable) and to the Fujitsu Services Advisor.
| 6. | SERVICE LEVELS |
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6.4 Remedies for Failure to Meet Service Levels.
(a) Spansion agrees that the remedies available to it in the event of a failure of AMD to provide the Services in accordance with the Service Levels should be addressed to correcting problems that resulted in such failure, rather than to penalizing AMD. In recognition of this, (1) a single instance of a failure to meet a Service Level shall not automatically be deemed a material breach by AMD and (2) the Parties agree to follow to procedures set forth in this Section 6.4 as well as Section 6.5 to rectify such failures.
(b) For failures to meet the Service Levels or for any other material failure of an AMD-maintained System, AMD will provide the error correction and workaround services detailed in Exhibit 6.4 in accordance with the terms and timelines set forth therein.
(c) If, despite the remediation efforts being undertaken as set forth in Exhibit 6.4, the affected Service or Spansion System continues to fail to comply with the applicable Service Level or continues to suffer from a material defect after fifteen (15) days of remediation efforts, then the Parties shall undertake the corrective action process outlined in Section 6.5 below. If no reasonable, mutually-acceptable resolution is achieved after the conclusion of these processes, then Spansion may terminate the affected Service pursuant to Section 16.1.
6.5 Dispute Escalation Process.
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deficiency, and if necessary may submit a Change Proposal regarding a corrective action plan in accordance with the Change Control Procedures. Upon such contact, the Spansion Services Manager and AMD Services Advisor will promptly consider the corrective action plan in person or by telephone and will attempt in good faith to agree to a mutually acceptable corrective action plan. The Spansion Services Manager will invite the Fujitsu Services Advisor to attend any such meetings. If the Parties cannot agree upon a corrective action plan within a fifteen (15) day business day period, the issue will be escalated in accordance with clause (b) below.
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such credit will offset the next payment obligation of Spansion (to the extent of the credit) which follows AMD’s accrual of such credit. AMD will promptly notify Spansion of any such credits.
| 7. | SERVICE LOCATIONS AND SECURITY |
(a) The Services shall be provided to Spansion from (i) the Spansion Service Locations and (ii) the AMD Service Locations as established on the Effective Date or subsequently changed in accordance with the terms hereof. In the event AMD desires to establish or move Services to a Spansion Service Location, such action must go through the Change Order Procedure or be approved in writing by the Spansion Services Manager.
(b) Except as provided in Section 10 and unless otherwise agreed by Spansion, any incremental expenses incurred by Spansion or AMD and any costs incurred in connection with the performance or use of the Services, in each case as a result of AMD’s relocation to, or use of, any different Service Locations at AMD’s request, shall be paid by AMD or reimbursed to Spansion by AMD. Any incremental expenses incurred by Spansion or AMD as a result of a relocation to, or use of, any different Service Locations at Spansion’s request or direction shall be paid by Spansion or reimbursed to AMD by Spansion.
(i) For so long as AMD requires the same for the performance of the Services, subject to Spansion’s agreement (not to be unreasonably conditioned, delayed or withheld), Spansion shall provide to AMD at no charge access to and the use of the space in the Spansion Service Locations, together with personal computers, workstations, terminals, printers, and other equipment utilized by Spansion, office furnishings, telephone equipment, janitorial services, utilities, and other reasonable resources, in connection with AMD’s performance of the Services. Use of Spansion Service Locations by AMD does not constitute a leasehold interest in favor of AMD, and AMD shall not have exclusive access or control of the space provided to AMD under this Agreement.
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(ii) AMD and AMD Agents shall not commit or permit waste or damage to such facilities, nor use such facilities for any unlawful purpose or act, and shall comply with all of Spansion’s general and site-specific policies and procedures generally applicable to the applicable Spansion Service Location (as in effect from time to time and of which Spansion has provided notice to AMD), including procedures for the physical security of the Spansion Service Locations.
(iii) AMD shall permit Spansion and Spansion Agents to enter into those portions of the Spansion Service Locations occupied by AMD’s staff at any time to perform facilities-related services. Spansion shall ensure that Spansion and Spansion Agents shall not interfere with AMD’s performance of Services while exercising access rights under this Agreement, and AMD shall not be liable under this Agreement for its non-performance or its failure to meet the applicable Service Levels to the extent such non-performance or failure is caused by interference by Spansion or Spansion Agents.
7.4 Safety and Security Procedures.
(a) AMD agrees to comply with Spansion’s physical safety and security procedures for all Services it provides at Spansion Service Locations.
(b) AMD will promptly notify Spansion if any Spansion failure to maintain and enforce (except for enforcement with respect to AMD Personnel) physical safety and security procedures at Spansion Service Locations will cause, or has caused, a material problem or delay for AMD in providing the Services. AMD will be excused from failure to meet a Service Level or otherwise perform its obligations under this Agreement only to the extent that a failure to meet such Service Level or otherwise perform its obligations was caused by the Spansion failure to maintain and enforce (except for enforcement with respect to AMD Personnel) physical safety and security procedures at Spansion Service Locations; provided that AMD continues to use reasonable efforts to perform despite such failure and works with Spansion to resolve the failure and resume conformance with the Service Levels and performance of AMD’s obligations under this Agreement as soon as practicable.
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(a) AMD shall establish and maintain for Spansion environmental, security, and other safeguards against the destruction, loss or alteration of Spansion Data in the possession of AMD and during the electronic transmission, storage, and shipping thereof (the “Data Safeguards”) that (i) with respect to the Spansion Service Locations shall be consistent with (A) AMD’s data security policies and procedures adopted for AMD in effect as of the Amendment Date or any updated policies and procedures as AMD may subsequently adopt, and (B) the safeguards required to meet any higher standard otherwise agreed by the Parties; and (ii) with respect to the AMD Service Locations shall be no less rigorous than (A) the data security policies and procedures in effect as of the Amendment Date at any of the AMD Service Locations or any updated policies and procedures as AMD may subsequently adopt, and (B) the safeguards required to meet any higher standard otherwise agreed upon by the Parties.
(b) AMD will monitor the activities of third parties who are party to Spansion Third Party Contracts and will enforce the provisions of such Spansion Third Party Contracts as they relate to Data Safeguards and resolve any disputes related thereto.
(c) In the event AMD or AMD Agents discover or are notified of a breach or potential breach of security relating to Spansion Data (whether by AMD or third parties), AMD shall immediately (i) notify the Spansion Services Manager of such breach or potential breach and (ii) if the applicable Spansion Data was in the possession of AMD or AMD Agents at the time of such breach or potential breach, AMD shall investigate and remediate the effects of the breach or potential breach. As a part of AMD’s remediation efforts, if AMD reasonably believes that recurrences of the breach of security could be prevented by a Change, AMD may propose the Change.
| 8. | CONTINUED PROVISION OF SERVICES |
8.1 Disaster Recovery Plan. AMD will maintain a mutually-accepted disaster recovery plan (“DRP”) having the charactersistics (including targeted time periods) set forth in Exhibit 8.1. Without limiting AMD’s other obligations under this Agreement, including the Service Levels, in the event of an interruption in Services, AMD shall use reasonable efforts to reinstate the Services as promptly as possible.
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reasonable detail the nature of the Force Majeure Event. The occurrence of a Force Majeure Event does not excuse, limit or otherwise affect AMD’s obligation to provide either normal recovery procedures or any other disaster recovery services described in Section 8.1, except to the extent AMD is prevented, hindered or delayed from such performance by a Force Majeure Event and AMD continues to use reasonable efforts to recommence performance whenever and to whatever extent possible without delay. If a Service cannot be resumed as a result of a Force Majeure Event for a period of time sufficient to materially hinder Spansion’s ability to continue to operate, but in no event less than thirty (30) days, Spansion may obtain such needed Services from a third party; provided however, that if AMD is thereafter able to resume providing such Service, Spansion will again retain AMD to provide such Service in accordance with this Agreement.
| 9. | ASSIGNED AND MANAGED AGREEMENTS |
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grant any consents or waivers under, any Managed Agreements without the consent of the Spansion Services Manager. Other Spansion agreements may be managed by AMD and become Managed Agreements governed by this Section 9.3 upon the mutual agreement of the Parties. Spansion shall provide AMD with complete copies of all Managed Agreements, including any modifications to such agreements as required for AMD to manage such agreements.
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of the Effective Date. Any Spansion Consents obtained by AMD pursuant to this Section 9.7 shall be prepared in a manner that permits re-assignment to Spansion of the underlying consent, permission, agreement, or license, as the case may be upon any termination or the expiration of this Agreement.
| 10. | PAYMENTS AND INVOICING |
(a) In consideration of AMD providing the Services, Spansion shall pay to AMD the Fees in accordance with the budget allocations and amounts listed on Exhibit 10 and in accordance with Section 10.3. The Fees are subject to change annually in accordance with the Annual Budget Process, as well as in accordance with the Change Control Procedures and the quarterly budget reconciliation process described in Section 10.9.
(b) As of the Amendment Date, the Parties acknowledge that there are no Assigned Agreements or Managed Agreements and accordingly Spansion shall not be charged any Managed Agreement Fees and the Assigned Agreement Fees. In the event that either Party identifies agreements that are proposed to become either Assigned Agreements or Managed Agreements, it shall notify the other Party in advance of each such agreement, including information regarding the nature of each agreement and any proposed Managed Agreement Fees or Assigned Agreement Fees. Any transfer or subcontracting of Assigned Agreements or Managed Agreements is subject to the Annual Budget Process. The Managed Agreement Fees and Assigned Agreement Fees actually charged to Spansion shall reflect the application of any discounts, including discounts for prompt or early payment.
10.3 Pass-Through Expenses. Exhibit 10.3 sets forth all Pass-Through Expenses payable by Spansion in conjunction with receipt and use of the Services. Any Pass-Through Expenses not identified in Exhibit 10.3 as of the Amendment Date must be approved through the Change Control Procedures, the quarterly reconciliation process or the Annual Budget Process. AMD shall pay all Pass-Through Expenses directly to the applicable suppliers and shall invoice Spansion for amounts paid to such suppliers.
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were provided or the expenses incurred. Any other sum due AMD pursuant to this Agreement shall be due and payable within forty-five (45) days after receipt by Spansion of an invoice from AMD. All payments will be made via wire transfer or other mutually-acceptable means.
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reconciliation process, adjustments to budgeted Fees and Pass-Through Expenses, whether resulting in an increase or decrease in Fees and Pass-Through Expenses, will be mutually agreed upon by AMD and Spansion and will apply prospectively only.
| 11. | TAXES |
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payments made under this Agreement. As part of this Agreement, Spansion shall issue AMD such valid tax exemption certificate(s) for the various state and local taxing authorities as Spansion may legally issue and AMD may legally and reasonably request to cover Transaction Taxes legally imposed upon the transactions arising out of this Agreement. In the event that a Transaction Tax is assessed against AMD on the provision of the Services by AMD to Spansion or on the Fees, however levied or assessed, Spansion shall reimburse AMD for or provide acceptable proof that Spansion has paid said amounts directly to the appropriate taxing authority. Spansion shall accrue and pay the appropriate amount of Taxes due to any state or local taxing authority for Transaction Taxes. Spansion will be responsible for the proper reporting of Transaction Taxes to the taxing authorities, and any charges associated with such filings, including but not limited to, interest or penalties due to the taxing authorities. AMD and Spansion agree to mutually cooperate in a reasonable manner for the purpose of minimizing all Transaction Taxes that are to be paid directly or indirectly by Spansion. AMD grants Spansion the right to pursue a separate action against any governmental unit which asserts Transaction Taxes and AMD agrees to cooperate in a reasonable manner with Spansion if such action is taken.
11.4 New Equipment. Spansion shall bear sole responsibility for all sales, use, gross receipts, excise, value-added or personal property taxes attributable to New Equipment and any third party maintenance thereon procured by AMD on behalf of Spansion (with the consent of Spansion in connection with the Change Order Procedures) in connection with AMD’s performance of Services under this Agreement (provided Spansion obtains unencumbered title to such equipment). With respect to any Software to be delivered to Spansion within the State of California, for so long as there is a tax benefit to Spansion in the delivery methods hereinafter described, AMD shall use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause any third party vendor to, deliver any Software by means that minimize the tax attributable to the delivery of such Software to Spansion.
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| 12. | PROPRIETARY RIGHTS. |
| 13. | CONFIDENTIALITY |
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those required by the Receiving Party for its own confidential information. The Receiving Party shall, and shall cause its employees to, retain in confidence and not disclose to any third party (including any of its sub-contractors) any Confidential Information without the Disclosing Party’s express prior written consent, and the Receiving Party shall not use such Confidential Information except to exercise the rights and perform its obligations under this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same procedures and degree of care which it uses to protect its own confidential information of like importance, and in no event less than reasonable care. The Receiving Party shall be fully responsible for compliance by its employees with the foregoing, and any act or omission of an employee of the Receiving Party shall constitute an act or omission of the Receiving Party. The confidentiality obligations set forth in this Section 13.1 shall apply and continue, with regard to all Confidential Information disclosed hereunder, during the Term and for a period of ten (10) years from the date of termination of this Agreement.
| 14. | REPRESENTATIONS AND WARRANTIES. |
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| 15. | DISPUTE RESOLUTION |
15.1 The Parties hereby agree that claims, disputes or controversies of whatever nature, arising out of, in connection with, or in relation to the interpretation, performance or breach of this Agreement shall be resolved first in accordance with any dispute escalation procedures set forth in Section 6.5 above, and, to the extent not resolved after such procedures, in accordance with the dispute resolution procedure set forth in Schedule A attached hereto.
| 16. | TERMINATION |
(a) If AMD defaults in the performance of any of its material obligations under this Agreement, and does not cure such default within ninety (90) days after receipt of a notice of default from Spansion, then Spansion may, without limiting Spansion’s other rights or remedies under this Agreement, by giving notice to AMD, terminate this Agreement, in whole or in affected part, as of the termination date specified in the notice.
(b) If Spansion fails to make payments due to AMD under this Agreement and does not cure such default within ninety (90) days after receipt of a notice of default from AMD, then AMD may, by giving notice to Spansion, terminate this Agreement in its entirety as of the termination date specified in the notice of default.
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documentation and materials still in its possession and owned by the other Party, other than reports, documentation and materials licensed to the Party possessing the same after the expiration or termination of this Agreement in accordance with the terms of this Agreement.
(a) Upon Spansion’s request, with respect to (i) any agreements for maintenance, disaster recovery services, or other third party services, or any AMD Systems leased by AMD and being used by AMD or AMD Agents solely to provide the Services as of the End Date and (ii) the Assigned Agreements then in effect, AMD shall, and shall cause AMD Agents to, transfer or assign such agreements to Spansion or Spansion’s designees, on terms and conditions acceptable to all applicable parties. If AMD cannot make such transfer after the exercise of reasonable efforts to do so, AMD shall provide to Spansion at Spansion’s expense equivalent and sufficient rights in replacement of the agreements that cannot be transferred. The applicable assignment and assumption agreement governing such transfer or assignment shall include an indemnity by Spansion protecting AMD from any liability under such third-party agreements arising after the date of transfer or assignment thereof to the extent AMD is not otherwise released from liability. Upon Spansion’s request, AMD will assist Spansion in obtaining directly from third parties any third party services for which Spansion does not elect to assume the applicable third party agreements.
(b) Upon Spansion’s request, AMD shall sell to Spansion or its designee, on an “as is, where is basis,” (i) the AMD Systems (other than AMD Systems leased by AMD) being used by AMD or AMD Agents solely to perform the Services as of the End Date and (ii) any assets transferred by Spansion to AMD or AMD Agents, free and clear of all liens, security interests or other encumbrances at the lesser of the fair market value, as shall be determined by an agreed-upon appraiser, or book value. AMD shall also furnish to Spansion all user and other documentation in its possession that relates to such Systems.
Where any of the foregoing rights may be requested by Spansion, Spansion may request such rights on or before the End Date, but not after the End Date.
16.5 Survival. Sections 10, 11, 13, 14, 15, 16.4, 16.5, 17, and 18 shall survive any termination or expiration of this Agreement.
| 17. | DAMAGES |
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| 18. | MISCELLANEOUS PROVISIONS. |
18.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, United States of America, as applied to agreements among California residents entered into and wholly to be performed within the State of California (without reference to any choice or conflicts of laws rules or principles that would require the application of the laws of any other jurisdiction and without regard to the United Nations Convention on Contracts for the International Sale of Goods).
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Agreement must be in writing to be effective. Failure, neglect or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No single or partial exercise of any right, power or privilege granted under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and are not exclusive of any rights or remedies provided by law.
If to Spansion:
Spansion Inc.
000 XxXxxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000 000-0000
Facsimile: (000) 000-0000
If to AMD:
Advanced MicroDevices, Inc.
One AMD Place M/S 150
X.X. Xxx 0000
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Fujitsu:
Fujitsu Limited
Akiruno Technology Center
00 Xxxxxxxxx, Xxxxxxx
Xxxxx, 000-0000, Xxxxx
Attention: General Manager
Device Business Systems Div.
Corporate IT Group
Telephone: x00-00-000-0000
Facsimile: x00-00-000-0000
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or to such other address or facsimile number as a Party may have specified to the other Parties in writing delivered in accordance with this Section 18.6.
[Signature page follows]
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| Spansion Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
| Advanced Micro Devices, Inc. | ||
| By: | ||
| Name: | ||
| Title: |
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EXHIBIT 1
DEFINITIONS
“Affiliate” of a person or Entity means any other person or Entity which, directly or indirectly, controls, is controlled by, or is under common control with, such person or Entity. The term “control” (including, with correlative meaning, the terms “controlled by” and “under common control with”), as used with respect to any person or Entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person or Entity, whether through the ownership of voting securities, by contract or otherwise. A person or Entity shall be deemed an Affiliate of another person or Entity only so long as such control relationship exists. Notwithstanding the foregoing, neither Spansion nor any of its directly or indirectly majority owned subsidiaries (whether organized as corporations, limited liability companies or other legal entity) shall be deemed to be an Affiliate of AMD, except to the extent expressly provided in this Agreement.
“Aggregate Ownership Interest” has the meaning set forth in Spansion’s Certificate of Incorporation.
“AMD Agents” means the agents, subcontractors, and representatives of AMD, including AMD Affiliates.
“AMD Consents” means all licenses, consents, permits, approvals and authorizations that are necessary to (a) allow AMD and AMD Agents to use, in providing Services during the Term and the Termination Assistance Period, in accordance with the terms of this Agreement (i) any AMD Software, (ii) any assets owned or leased by AMD (including the AMD Systems), and (iii) any third-party services retained by AMD to provide the Services; and (b) allow Spansion to access, during the Term and thereafter, the AMD Software.
“AMD Infrastructure” means, collectively the AMD methodologies, processes, Systems and Software that AMD uses in its own business to provide the Services or equivalent services within AMD or by AMD to its business units, Affiliates or subsidiaries, as well as the associated telecommunications infrastructure and technical environment at the AMD Service Locations.
“AMD Personnel” means the personnel of AMD and AMD Agents who provide the Services.
“AMD Service Location(s)” means any AMD service location and any other service location owned, leased, or operated by AMD, or used by AMD with the consent of a third party other than Spansion, from which AMD provides Services.
“Background Technology” means any patents, trade secrets, copyright rights, trademark rights, service xxxx rights, mask work rights and any and all other intellectual property or proprietary rights now known or hereafter recognized in any jurisdiction in any and all media which is (a) owned by AMD as of the Effective Date or (b) conceived, developed, written, or otherwise created or acquired by AMD on or after the Effective Date.
“Change(s)” means any material change to (a) the Services, (b) the Software used to provide the Services, (c) the Systems used to provide the Services, or (d) the technical environment of the Services that, in each case, would materially alter the service content, scope, or performance standards of the Services, or materially alter the cost to Spansion of the Services. Examples of Changes would include replacing a Software application from one vendor with that from another vendor, but not day-to-day operational issues normally handled by IT staff in the routine performance of their activities, such as implementing a software patch to correct a Software error, or updating a field in an application.
“Consents” means, collectively, the Spansion Consents and AMD Consents.
“Contract Year” means June 30, 2003 to December 28, 2003, and thereafter each fiscal year during the remainder of the Initial Term.
“Developed Software” means any Software, modifications or enhancements to Software, and Related Documentation, developed pursuant to this Agreement by or on behalf of (a) AMD, (b) AMD Agents, (c) AMD and/or AMD Agents and Spansion and/or Spansion Agents jointly, or (d) AMD and/or AMD Agents and Spansion and/or Spansion Agents jointly.
“Effective Date” means June 30, 2003.
“Entity” means a corporation, partnership, limited liability company, or other enterprise, association, organization, or entity.
“Fees” means the fees for the Services set forth in Exhibit 10, but not any Assigned Agreement Fees and Managed Agreement Fees.
“Fujitsu” means Fujitsu limited, a company organized under the laws of Japan.
“Governmental Approvals” means all licenses, consents, permits, approvals and authorizations of any Governmental Authority, or any notice to any Governmental Authority, the granting of which is required by Law, for the consummation of the transactions contemplated by this Agreement.
“Governmental Authority” means any Federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial or administrative body, whether domestic, foreign or international.
“Intellectual Property Contribution and Ancillary Matters Agreement” means that certain Amended and Restated Intellectual Property Contribution and Ancillary Matters Agreement, dated as of , 2005, by and among AMD, AMD Investments, Inc., a Delaware corporation, Fujitsu and Spansion.
“Law” means any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority.
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“Licensed Parent Software” has the meaning set forth in the Intellectual Property Contribution and Ancillary Matters Agreement.
“Managed Agreement Invoice(s)” means any invoice submitted by third parties in connection with the Managed Agreements.
“Measurement Period” means the period over which performance against a Service Level will be measured, as set forth in the applicable Exhibit.
“New Equipment” means any Systems obtained by AMD on behalf of Spansion, as requested by Spansion pursuant to the procurement provisions of Exhibit 4.1.
“Other Software” means all Software which is used by AMD in the provision of the Services, or Software used by Spansion in the receipt of the Services, excluding any AMD Licensed Parent Software.
“Pass-Through Expenses” shall mean the expenses for telephone services, and allocated costs (in conformity with Section 10.7 of the Agreement) for report distributions to Spansion which are listed in Exhibit 10.3, and for any other expenses which Spansion has agreed in advance to be financially responsible, in accordance with Section 10.3 of this Agreement.
“Reimbursable Expenses” means reasonable out-of-pocket travel and travel-related expenses reasonably agreeable to Spansion and to the extent such expenses are reimbursable under the expense reimbursement policy attached to Exhibit 10.
“Related Documentation” means, with respect to Software and Systems, all materials, documentation, specifications, technical manuals, user manuals, flow diagrams, file descriptions and other written information that describe the function and use of such Software or Systems, as applicable.
“Service Location(s)” means any Spansion Service Location or AMD Service Location, or both, as applicable.
“Services” has the meaning set forth in Section 4.1.
“Software” means the executable code and, if applicable and supplied by AMD, source code, versions of any applications programs, operating system software, computer software languages, utilities, other computer programs and Related Documentation, in whatever form or media, including the tangible media upon which such applications programs, operating system software, computer software languages, utilities, other computer programs and Related Documentation are recorded or printed, together with all corrections, improvements, updates and releases thereof.
“Spansion Agents” means the agents, employees, contractors, and representatives of Spansion, other than AMD and AMD Agents.
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“Spansion Consents” means all licenses, consents, permits, approvals and authorizations that are necessary to allow (a) AMD and AMD Agents to use in providing Services during the Term and Termination Assistance Period in accordance with the terms of this Agreement (i) Spansion owned and leased assets (including the Spansion Systems), (ii) Spansion facilities, (iii) the services provided for the benefit of Spansion under Spansion’s third party service contracts, (iv) the Spansion Software, and (v) Spansion third party Software; (b) AMD to manage and administer the Managed Agreements pursuant to Section 9.3; and (c) Spansion to assign to AMD the Assigned Agreements.
“Spansion Data” means all data and information (i) submitted to AMD or AMD Agents by Spansion, or (ii) otherwise obtained by AMD or AMD Agents from Spansion pursuant to the performance of the Services.
“Spansion Service Location(s)” means any Spansion service location identified in Exhibit 7.1 and any other service location requested or approved by Spansion (but excluding AMD Service Locations).
“Spansion Software” means Software owned or licensed by Spansion for which Spansion has the right to provide access to AMD for provision of the Services without incurring additional costs.
“Spansion System” means a System owned by Spansion and used by or on behalf of Spansion.
“Spansion Third Party Contracts” means the Managed Agreements and the Assigned Agreements, collectively.
“Special Project” means any service that is outside the scope of the Services generally provided by AMD and listed on Exhibit 4.1.
“Special Project Fees” means the fees for a Special Project agreed upon by the Parties.
“Systems” means computers and related equipment, including central processing units and other processors, controllers, modems, communications and telecommunications equipment (voice, data and video), cables, storage devices, printers, terminals, other peripherals and input and output devices, and other tangible mechanical and electronic equipment intended for the processing, input, output, storage, manipulation, communication, transmission and retrieval of information and data, as well as any Software installed on such machines.
“Tax” or “Taxes” means all taxes, levies, imposts and fees imposed by any Governmental Authority (domestic or foreign) of any nature including but not limited to federal, state, local or foreign net income tax, alternative or add-on minimum tax, profits or excess profits tax, franchise tax, gross income, adjusted gross income or gross receipts tax, employment related tax (including employee withholding or employer payroll tax, FICA or FUTA), real or personal property tax or ad valorem tax, sales or use tax, excise tax, stamp tax or duty, any withholding or back up withholding tax, value added tax, severance tax, prohibited transaction tax, premiums
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tax, occupation tax, together with any interest or any penalty, addition to tax or additional amount imposed by any Governmental Authority (domestic or foreign) responsible for the imposition of any such tax.
“Term” means the Initial Term and the Extension Periods (if any).
“Termination Assistance Period” means a period of time designated by Spansion, commencing on the earlier of (i) the date six (6) months prior to the expiration of the Term or such earlier date as Spansion may request and (ii) the date of notice by either Party that there will be a termination of this Agreement and, in the case of each of clause (i) and (ii), continuing for up to twelve (12) months after the effective date of expiration or termination of this Agreement; in the case of each of clause (i) and (ii), during which AMD shall provide the Termination Assistance Services in accordance with Section 16.
“Termination Assistance Services” means (a) the Services being performed (and required under this Agreement to be performed) by AMD as of the date of expiration or termination of this Agreement, to the extent Spansion requests such Services during the applicable Termination Assistance Period; (b) AMD’s cooperation with Spansion, or another service provider designated by Spansion in the transfer of the Services (or portion thereof, as applicable) to Spansion or such other service provider in order to facilitate the smooth and orderly transition of the Services (or portion thereof, as applicable) to Spansion or such other service provider; (c) AMD developing, with the cooperation of Spansion, and subject to the approval of Spansion, a plan for the smooth and orderly transition of the performance of the Services (or portion thereof, as applicable) from AMD to Spansion or to a third party designated by Spansion; (d) AMD providing reasonable training for personnel of Spansion or Spansion’s designee in the performance of the Services then being transitioned to Spansion; and (e) AMD performing the other services, functions, and responsibilities described in Section 16.
“Work Product” means literary work or other works of authorship created under this Agreement, including manuals, training materials, reports, deliverables, and documentation, but excluding Software and Related Documentation.
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