EXHIBIT 10.37
SUPPLY AGREEMENT
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SUPPLY AGREEMENT dated as of March 9, 2000 by and between DRIVEWAY
CORPORATION, a Delaware corporation (the "Company"), and EMC CORPORATION, a
Massachusetts corporation ("EMC").
In connection with EMC's acquisition of Series D Preferred Stock of the
Company, pursuant to the Series D Preferred Stock Purchase Agreement dated as of
March 9, 2000 by and among the Company and EMC, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company and EMC hereby agree as follows:
1. Sole Supplier.
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(a) During the term of this Agreement, EMC shall produce and sell to
the Company, and the Company shall purchase from EMC, as the
Company's sole supplier, all of the Company's requirements for
Products, or other products having functionality substantially
similar to that of the Products. For purposes of this Agreement,
the term "Products" shall mean enterprise storage and enterprise
storage software products.
[***]
2. Customer Agreement. All Company purchases of Products hereunder
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shall be made pursuant to the EMC Customer Agreement, a form of which is
attached hereto as Annex A. [***]
3. Term. The initial term of this Agreement shall be for a period of
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three (3) years commencing on the date hereof. Upon expiration of such initial
term, the term hereof shall automatically renew for a period of one (1) year
unless either EMC or the Company shall, by written notice given to the other
party not less thirty (30) days prior to
CONFIDENTIAL TREATMENT **Confidential treatment has been
HAS BEEN REQUESTED FOR requested with respect to the
CERTAIN PORTIONS OF THIS information contained within the
DOCUMENT "[**]" markings. Such marked portions
have been omitted from this filing and
have been filed separately with the
Securities and Exchange Commission
such expiration, elect not so to renew the term, in which event this Agreement
shall expire at the end of the then current term.
4. Notices. All notices required by this Agreement must be in
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writing and sent by certified mail, return receipt requested, or by overnight
courier. The date of notice is the date it is received. Notices hereunder
shall be sent as follows:
If to the Company: Driveway Corporation
380 Brannan Street
San Francisco, CA 94107
Attn: Chris Logan, Chief Executive Officer
with a copy to: William Kushner, Esq.
Perkins Coie LLP
135 Commonwealth Drive
Suite 250
Menlo Park, CA 94025-1105
If to EMC: EMC Corporation
35 Parkwood Drive
Hopkinton, MA 01748
Attention: Bob Sliney,
Director of Finance,
New Business Development
with a copy to:
EMC Corporation
35 Parkwood Drive
Hopkinton, MA 01748
Attention: Office of the General Counsel
A party may, by written notice, designate a different address for
notices or different or additional persons to be notified.
5. No Assignment. Neither party may assign any of its rights
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hereunder without the prior written consent of the other party; provided,
however, that no consent shall be required for any assignment (i) to any
business entity controlling, controlled by or under common control with a party
or (ii) to the purchaser of all or substantially all of a party's assets or
stock through merger, consolidation or otherwise.
6. Law. This Agreement shall be governed by the laws of the Commonwealth
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of Massachusetts, without reference to the conflicts of laws provisions thereof.
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7. Entire Agreement. This Agreement, together with any Annexes
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hereto, constitutes the entire agreement of EMC and the Company with respect to
the subject matter hereof.
8. Severability. If any provision of this Agreement is invalid or
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unenforceable, then the other provisions shall remain enforceable and a court of
competent jurisdiction shall reform this Agreement to permit enforcement of the
invalid or unenforceable provision to the maximum extent permitted by law.
9. Public Announcements. EMC and the Company shall consult with each
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other before issuing any press release or making any public statement with
respect to this Agreement, EMC's acquisition of Series D Preferred Stock and any
matters related hereto or thereto and shall not issue any such press release or
make any such public statement without the prior written consent of the other
party, which shall not be unreasonably withheld.
10. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be considered one and the same agreement and
shall become effective when two or more counterparts have been signed by each of
the parties and delivered to the other parties.
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IN WITNESS WHEREOF, EMC and the Company have caused this Agreement to
be executed under seal as of the date first written above.
EMC CORPORATION
By: /s/ Michael J. Cody
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Name: Michael J. Cody
Title: Vice President
DRIVEWAY CORPORATION
By: /s/ Christopher S. Logan
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Name: Christopher S. Logan
Title: CEO
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