Exhibit 10.58
AMENDED AND
RESTATED
AGENCY AGREEMENT
This A MENDED AND R ESTATED A GENCY A GREEMENT (“Agreement”) is effective as of
April 1, 2005 (the “Effective Date”), by and
between S PANSION LLC, a
Delaware limited liability company (“Spansion”), and
A DVANCED M ICRO D EVICES , I NC ., a
Delaware corporation (“AMD”). Spansion and AMD are
hereinafter also referred to as the “Parties” and
individually as a “Party.” Capitalized but undefined
terms shall have the meaning set forth in the Distribution
Agreement (as defined below).
WHEREAS, in connection with the formation of Spansion
LLC, AMD and Spansion entered into that certain AMD Distribution
Agreement, dated as of June 30, 2003 (the “Distribution
Agreement”), as amended, whereby Spansion appointed AMD as
one of Spansion’s sole initial distributors of
Products;
WHEREAS, as part of the restructuring of the relationship
between AMD and Spansion, Spansion agreed to hire the AMD sales
force that had been selling the Products to AMD customers and
assume AMD’s obligations under the Distribution Agreement and
effective as of the Effective Date of this Agreement, those former
AMD employees became employees of Spansion;
WHEREAS, the Parties contemplate terminating the
Distribution Agreement, but during a transition period beginning on
the Effective Date AMD will still have responsibilities to its
customers to supply Products and will still have the contractual
relationship with such Product customers; and
WHEREAS, the Parties will separately amend the
Distribution Agreement, in conjunction with other required
amendments to Spansion’s distribution agreement with Fujitsu
Limited of even date with the Distribution Agreement (the
“Fujitsu Agreement”), to address the wind-down of the
Distribution Agreement and the eventual termination of AMD’s
role as a distributor of the Products;
NOW THEREFORE,
the Parties agree as
follows:
1. Transition
Assistance. AMD hereby
authorizes Spansion, and Spansion hereby agrees, to assume and
fulfill AMD’s obligations under the Distribution Agreement
and to carry out AMD’s sales, marketing and customer support
activities regarding the Products on AMD’s behalf and in
AMD’s name with existing and new AMD Product customers.
Spansion is hereby authorized to communicate with existing and
potential Customers regarding the Products, and to accept and
fulfill Product purchase orders on AMD’s behalf from existing
Product customers, each on AMD’s behalf and in AMD’s
name; provided that the purchase order terms are consistent with
existing AMD policies and procedures. Spansion shall retain title
to all Products prior to sale and upon return from a customer, and
shall assume all inventory risk and any risk of loss associated
with the collection, shipping, delivery or return of Products. As
between the parties, Spansion shall establish all prices for the
Product and shall assume all credit risk for any and all
amounts billed to Customers for Product. AMD
shall have no right to set prices, to take title to inventory, or
to receive payment from AMD Customers for such sales without paying
Spansion all amounts received without deduction as commission or
other remuneration to AMD. Further, AMD relinquishes any right to
control Product Specifications that it may have had. Spansion is
not authorized to transact any other business in the name of AMD or
to assume or create any obligation or responsibility binding upon
AMD in any matter whatsoever except as expressly authorized under
this Agreement unless Spansion has received prior specific written
consent from AMD. Spansion agrees to use commercially reasonable
efforts to perform such sales, marketing and support activities in
a manner substantially consistent with the manner in which such
activities were performed by AMD prior to the Effective Date and to
assume the risks and liabilities set forth above. This Agreement
does not establish or constitute Spansion as AMD’s
representative or agent for any purpose other than the marketing,
sales and customer support of Products in furtherance of
AMD’s rights and responsibilities under the Distribution
Agreement. Except as expressly set forth above, the relationship of
the parties under this Agreement shall be, and shall at all times
remain, one of independent contractors and not that of employer and
employee, franchisor and franchisee or joint venturers.
2. New Customers.
Until such time as the Distribution
Agreement is terminated or is amended to permit Spansion to sell
Products directly, as the case may be , an
