EXHIBIT 10.30
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SHOWA DENKO / WESTERN DIGITAL TECHNOLOGIES
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "AGREEMENT") is made and entered into as of
August 17, 2005 ("EFFECTIVE DATE"), by and between SHOWA DENKO K.K.("SHOWA
DENKO"), with offices located at Chiba, Ichihara, Japan, and Western Digital
Technologies, Inc., a Delaware corporation ("WESTERN DIGITAL"), with offices
located at 20511 Lake Forest Drive, Lake Forest, California 92630.
RECITALS
WHEREAS, SHOWA DENKO and its affiliates manufacture and design Media; and
WHEREAS, WESTERN DIGITAL, its affiliates or subsidiaries incorporate such
Media into WESTERN DIGITAL'S hard disk drives ("HDD"); and
WHEREAS, WESTERN DIGITAL desires to purchase Media and SHOWA DENKO desires
to sell such Media, subject to the terms and conditions herein stipulated.
NOW, THEREFORE, in consideration of the above recitals, premises and the
mutual promises hereinafter contained, and other good and valuable
consideration, the parties hereto agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms in this
Agreement shall be given the meaning ascribed to them below:
"BUSINESS DAY" means any day other than a Saturday, Sunday or national
holiday in United States.
"FISCAL QUARTER" means Western Digital's fiscal quarters as identified
in EXHIBIT 3.2.
"NDA" means that certain Non-Disclosure Agreement by and between
WESTERN DIGITAL and SHOWA DENKO dated as of April 8, 2003.
"PURCHASE ORDER" means documents in EDI, email, or fax, issued by
WESTERN DIGITAL with quantities and/or shipping information, including
blanket orders of Products and JIT HUB pull signals.
"SPECIFICATIONS" means designs, drawings, prints and written
descriptions, specification reviews and requirements for the Products,
including any changes or updates thereto.
"MEDIA" means a blank substrate of glass or aluminum which has been
manufactured through multiple process steps to form a completed magnetic
rotating disc which is used in combination with magnetic heads.
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"MATERIAL DEFAULT" shall mean the occurrence of any of the following,
provided that in the event any of the following conditions are cured within
the time periods set forth therein, then no Material Default shall have
occurred:
(i) a failure of SHOWA DENKO to deliver in a given Fiscal Quarter the
Volume Requirements (subject to Section 5.1), or the failure of SHOWA DENKO
to accept a Purchase Order issued in accordance with Section 4.4, and the
failure by SHOWA DENKO to remedy such condition within ten (10) Business
Days after SHOWA DENKO has received notice thereof;
(ii) a failure of WESTERN DIGITAL to meet its payment obligations
under Section 3.5, and the failure by WESTERN DIGITAL to remedy such
condition within ten (10) Business Days after WESTERN DIGITAL has received
notice thereof; or
(iii) a material breach by either party of any obligation, covenant,
or condition under this Agreement that is susceptible of cure, and the
failure by the breaching party to cure such breach within thirty (30)
Business Days after the breaching party has received notice of such
default, provided that if the cure requires more than thirty (30) Business
Days, a Material Default will be deemed to exist if the breaching party
fails to (i) promptly take action to cure such breach as quickly as
reasonably possible; or (ii) cure such breach within sixty (60) days after
the breaching party has received notice of such default;
(iv) an assignment or attempted assignment in violation of Section 13.
"WDM" means Western Digital (Malaysia) Sdn Bhd.
"WDTH" means Western Digital (Thailand) Company Limited.
2. PURCHASE AND SALE OF PRODUCTS; TERM
2.1 Term. The term of this agreement shall commence on the Effective
Date and expire on December 31, 2007 (the "TERM"). During the Term WESTERN
DIGITAL shall designate SHOWA DENKO as a qualified supplier for Media and
SHOWA DENKO shall supply to WESTERN DIGITAL the Volume Requirements,
subject to the terms and conditions of this Agreement. To fulfill the
Volume Requirements, SHOWA DENKO may supply to WESTERN DIGITAL or its
Affiliates the Media manufactured by its owned and controlled affiliates,
SHOWA DENKO HD TRACE CORPORATION, SHOWA DENKO HD K.K. and/or SHOWA DENKO HD
SINGAPORE PTD., LTD., (each, a "Showa Affiliate"), provided that each
location of each Showa Affiliate can produce Media that meets WD's
Specifications and performance and reliability standards as set forth
herein. In the event any Showa Affiliate does not meet such Specifications
and standards, then SHOWA DENKO must meet the Volume Requirements with
Media from a different Showa Affiliate.
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2.2 Qualified Supplier. Upon completing qualification requirement for
each Product, SHOWA DENKO will be a qualified supplier of the particular
Product.
2.3 Conditions. WESTERN DIGITAL'S obligation to purchase any Products
from SHOWA DENKO under this Agreement is contingent on such Products,
including all components thereof and the manufacturing process thereto,
being qualified to WESTERN DIGITAL'S standards and Specifications (the
"Condition"). In the event that this Condition is not met or is breached
for any reason, WESTERN DIGITAL shall have the right to (A) waive such
unsatisfied Condition, or (B) to terminate this Agreement in part with
respect to any Product for which such Condition is not satisfied.
2.4 Limitations. Unless and until such Condition is satisfied, WESTERN
DIGITAL shall not be obligated under this Agreement to designate SHOWA
DENKO as a qualified supplier of any Product for which the Conditions have
not been satisfied or purchase any such Products under this Agreement.
2.5 Design Qualifications. When WESTERN DIGITAL and/or its affiliates
intend to obtain a new design qualification from its OEM and Distribution
customers with respect to hard disk drives, WESTERN DIGITAL and its
affiliates shall [***].
3. [***]; INVOICES AND PAYMENT.
3.1 Products. In accordance with the terms set forth in this
Agreement, WESTERN DIGITAL shall purchase from SHOWA DENKO the MEDIA
products set forth on Exhibit 3.1 hereto as may be amended in writing from
time to time by mutual agreement of the parties (the "PRODUCTS"). WESTERN
DIGITAL may authorize its affiliates to purchase Product and place Purchase
Orders under the terms and conditions of this Agreement.
3.2 Volume. The minimum quantities of the Products sold and purchased
hereunder for each Fiscal Quarter is set forth on Exhibit 3.2 hereto (the
"VOLUME REQUIREMENTS"). Purchases by WESTERN DIGITAL'S affiliates shall be
included in the total Volume Requirements.
3.3 [***]. [***] for the Products and payment terms is set forth on
EXHIBIT 3.3 hereto (the "[***]") which is incorporated herein by reference.
a. [***] In the event that WESTERN DIGITAL elects to challenge the
[***] of the Products under this clause, the parties shall
follow the procedures set forth in Section 3.3(b) below.
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b. [***]. With respect to [***] clause in Section 3.3(a) above and
Exhibit 3.3 hereto, [***].
c. In the event the parties [***] as described in this Section 3.3,
either party may, upon written notice to the other, submit such
dispute to the Chief Executive Officer of SHOWA DENKO and the
Chief Operating Officer of WESTERN DIGITAL, or their respective
designees, who shall meet to attempt to resolve the dispute by
good faith negotiations. In the event the parties are unable to
come to agreement upon [***] within five (5) Days after such
notice is given, either party may proceed with arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association and each party shall appoint one
arbitrator, and the two arbitrators thus appointed will appoint a
third arbitrator.
3.4 Submission of Invoices. WESTERN DIGITAL shall order Products under
this Agreement by submitting Purchase Orders in accordance with Section 4.4
hereof. SHOWA DENKO will submit invoices to WESTERN DIGITAL or its
affiliates no earlier than (i) with respect to direct shipments to
WDM/WDTH, the date of receipt of Products by WDM/WDTH's third party
transporter at the airport in the country where WDM/WDTH's plant is
located; (ii) with respect to direct shipments to WESTERN DIGITAL or its
affiliates other than WDM/WDTH, the date of shipment of Products to WESTERN
DIGITAL or its affiliates; and (iii) with respect to Products pulled from a
JIT Hub, the date of withdrawal from the JIT Hub.
3.5 Payment of Invoices. The Price for Product shall be paid in United
States currency. Payment from WESTERN DIGITAL for undisputed amounts due
under an appropriately submitted invoice shall be made within [***] days
(or such longer period as mutually agreed upon by the parties) after the
date of the invoice issued in accordance with Section 3.4.
4. FORECASTS AND ORDERS.
4.1 Long-Term Forecast. In order to assist SHOWA DENKO in planning
production, WESTERN DIGITAL shall provide SHOWA DENKO on a calendar month
basis with a four quarter rolling forecast of the quantities and
configurations of Products required by WESTERN DIGITAL and its affiliates,
including projected volumes by program (the "WD QUARTERLY FORECASTS"). The
rolling WD Quarterly Forecasts shall be by week for first quarter of each
forecast and by month for the second, third and fourth quarters of each
forecast. In addition, WESTERN DIGITAL will provide SHOWA DENKO with a
forecast at least annually of its anticipated Product needs extending for a
one year period after the then applicable WD Quarterly Forecast (the
"LONG-TERM FORECASTS"). The parties understand and agree that the WD
Quarterly Forecasts and the Long-Term Forecasts are intended to be
estimates for planning purposes only and shall not be binding upon WESTERN
DIGITAL.
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4.2 13-Week Forecasts. WESTERN DIGITAL shall use commercially
reasonable efforts to provide SHOWA DENKO with a thirteen (13) week rolling
forecast (the "13 WEEK FORECAST") of its Product requirements, updated
weekly on or before the close of business, California time, on an
agreed-upon Business Day of each week. The parties understand and agree
that all 13 Week Forecasts are intended to be estimates for planning
purposes only and shall not be binding upon both Parties.
4.3 SHOWA DENKO will procure and maintain all necessary equipment,
personnel, facilities, and other materials required to manufacture Products
in volumes sufficient to meet the Volume Requirements.
4.4 Order. WESTERN DIGITAL (or its affiliates) shall, if it desires to
purchase Products from SHOWA DENKO, furnish to SHOWA DENKO a quarterly firm
Purchase Order for the purchase of such Products not later than [***]
before such Fiscal Quarter. Purchase Orders will include (i) Product's
description, and (ii) the ship-to and bill-to addresses.
4.5 Order Reschedule; Cancellation. WESTERN DIGITAL or its affiliates
may reschedule the shipment date of any undelivered Products multiple times
within any Fiscal Quarter, and may reschedule up to [***]% of the Volume
Requirements for any Fiscal Quarter in the subsequent Fiscal Quarter,
without charge or liability under this Agreement. WESTERN DIGITAL shall be
responsible for reasonable charges for rescheduling shipment dates other
than in accordance with the preceding sentence. WESTERN DIGITAL may
redirect shipments of Products under any Purchase Order to alternate
locations, and WESTERN DIGITAL shall be responsible only for the difference
(if any) between the shipping costs to the original shipment location and
the new location. WESTERN DIGITAL may cancel a Purchase Order within [***]
of a scheduled delivery date only with consent from SHOWA DENKO. If SHOWA
DENKO consents, then WESTERN DIGITAL or its affiliates may be liable for
certain "ORDER CANCELLATION FEES" (unless such cancellation was for cause).
Such Order Cancellation Fees shall include only the cost of materials that
SHOWA DENKO cannot cancel, return to its supplier for credit, sell or
divert to another use. In addition, such Order Cancellation Fees shall not
in any event exceed the Price for any finished goods inventory manufactured
by SHOWA DENKO consistent with the 13 Week Forecast that is attributable to
such cancellation, modification or termination, and in no event more than
[***] of finished goods inventory of Products.
4.6 Direct Order Acknowledgement. If Products are not ordered by
WESTERN DIGITAL or its affiliates through the JIT Hub, and WESTERN DIGITAL
or its affiliates instead issues to SHOWA DENKO a direct purchase order for
Product, then an order acknowledgement shall be provided by SHOWA DENKO to
WESTERN DIGITAL or its affiliates within ninety-six (96) hours of receipt
of the purchase order for Product from WESTERN DIGITAL or its affiliates.
Failure by SHOWA DENKO to send an order acknowledgement shall not be deemed
to signify SHOWA DENKO'S objection to or disapproval of a purchase order
for a Product (as defined in this Agreement), but shall be deemed to be
SHOWA DENKO'S acknowledgement thereof.
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4.7 Obligation to Fulfill Orders. SHOWA DENKO must accept all Purchase
Orders for Products issued by WESTERN DIGITAL or its affiliates, if the
offered volumes of the Products in such Purchase Orders do not exceed the
Volume Requirements. In the event that a Purchase Order for such Products
issued by an WESTERN DIGITAL or its affiliates offers a volume of the
Products in excess of the Volume Requirements and if SHOWA DENKO does not
desire to accept such Purchase Order, SHOWA DENKO shall promptly (and in no
event later than ninety-six (96) hours from the time SHOWA DENKO receives
such Purchase Order) notify the WESTERN DIGITAL or its affiliates so that
the parties may discuss to attempt to avoid disruption in the supply chain.
Notwithstanding the foregoing, WESTERN DIGITAL shall have the opportunity
to amend any Purchase Order to be consistent with the Volume Requirements
and SHOWA DENKO shall at all times be required to supply WESTERN DIGITAL
the Volume Requirements.
5. DELIVERY.
5.1 General. SHOWA DENKO shall deliver the Volume Requirements to
WESTERN DIGITAL or its affiliates in during each Fiscal Quarter in
accordance with Purchase Orders in amounts equal to (i) a minimum of [***]
percent ([***]%) of the Volume Requirements for each of the first two
months of the then applicable Fiscal Quarter and (ii) [***] percent
([***]%) of the Volume Requirements by the end of the eleventh (11th) week
of the applicable Fiscal Quarter and (iii) [***] percent ([***]%) of the
Volume Requirements by the end of the last week of the applicable Fiscal
Quarter. Delivery terms are DDU WESTERN DIGITAL or its affiliates facility
or JIT Hub. SHOWA DENKO shall fulfill Purchase Orders in exact quantities,
provided, however if the difference between actual SHOWA DENKO Product
deliveries and the Volume Requirements for a Fiscal Quarter is not more
than [***] percent ([***]%) of the Volume Requirements for such Fiscal
Quarter, SHOWA DENKO may increase the Volume Requirement for the subsequent
Fiscal Quarter by a number of Products equal to such shortfall. In the
event of an incomplete shipment, and provided that WESTERN DIGITAL or its
affiliates has not notified SHOWA DENKO that WESTERN DIGITAL or its
affiliates will not accept an additional partial shipment to complete the
incomplete shipment, SHOWA DENKO shall promptly make up any incomplete
shipments as soon as possible (and in no event later than [***] days),
using expedited means of transportation at SHOWA DENKO'S sole expense.
5.2 Just-in-Time Hub. SHOWA DENKO will provide just-in-time delivery
using hubs located at or near WESTERN DIGITAL'S manufacturing or
distribution facilities in Malaysia and Thailand ("JIT HUBS"). SHOWA DENKO
will: (i) bear all costs associated with warehousing Products in the JIT
Hub(s); (ii) ensure that WESTERN DIGITAL or its affiliates may withdraw
Products from the JIT Hub(s) as needed; (iii) retain title to Products
until they are physically delivered to WESTERN DIGITAL or its affiliates or
its carrier upon withdrawal from the JIT Hub(s); (iv) fully insure or
require the JIT Hub(s) operator to fully insure all Products in transit to
or stored at a Hub against all risk of loss or damage until such time as
WESTERN DIGITAL or its affiliates
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takes title to them; and (v) require that the Hub operator take all steps
necessary to protect all Products in a JIT Hub consistent with good
commercial warehousing practice.
5.3 JIT Hub Inventory Levels. SHOWA DENKO will maintain inventory of
Products at the JIT Hub(s) of not less than [***], and not more than [***],
of the WESTERN DIGITAL or its affiliates scheduled pulls based on the 13
Week Forecasts consistent with the relevant Volume Requirements in effect
at the lead time necessary for SHOWA DENKO to manufacture the Products (the
"JIT HUB INVENTORY"). As WESTERN DIGITAL or its affiliates purchase Product
from the JIT Hub(s), SHOWA DENKO will replenish the inventory in accordance
with the 13 Week Forecast consistent with the relevant Volume Requirements
in effect at the lead time necessary for SHOWA DENKO to manufacture such
replenishing inventory.
5.4 On-Time Delivery. TIME IS OF THE ESSENCE as to the delivery of
Products. In the event SHOWA DENKO anticipates that it will not be able to
make shipments in conformance with a Purchase Order, without limiting
WESTERN DIGITAL'S rights or remedies under this Agreement, SHOWA DENKO will
promptly notify the WESTERN DIGITAL or its affiliates and will work with
the WESTERN DIGITAL or its affiliates to remedy the issues giving rise to
such nonconformance and to limit the impact of such nonconformance in
accordance with the following procedures:
a. SHOWA DENKO shall use its best efforts to provide WESTERN DIGITAL
with a remedy/corrective action plan within twenty four (24)
hours after notice to the WESTERN DIGITAL or its affiliates and
WESTERN DIGITAL;
b. In the event SHOWA DENKO is unable to provide a remedy/corrective
action plan within twenty four (24) hours, SHOWA DENKO will
provide daily updates until a remedy/corrective action plan is
identified;
c. If WESTERN DIGITAL is not satisfied with SHOWA DENKO' progress on
the remedy/corrective action plan, WESTERN DIGITAL may initiate a
management level discussion;
d. If the managers are unable to agree on a satisfactory resolution,
the management may initiate a vice president level discussion to
resolve WESTERN DIGITAL'S concerns; and
e. If the parties are unable to reach a mutually agreeable
resolution within five (5) days of the commencement of the
escalation process described in (c) above, then each party shall
be entitled to enforce its rights and remedies under this
Agreement and pursuant to applicable law.
5.5 Process Management Plans. If requested by WESTERN DIGITAL in
writing, SHOWA DENKO shall provide Process Management Plans ("PMP'S") for
all
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parts or processes as they relate to the production of Products within five
(5) days after receipt of the request.
5.6 Supply Chain Management. Quarterly, or as requested by WESTERN
DIGITAL, SHOWA DENKO shall provide to WESTERN DIGITAL supply chain
information including worldwide inventory volumes of the Products sold or
to be sold to WESTERN DIGITAL or its affiliates and pull rates for such
Products.
5.7 Process and Design Changes. The parties will agree upon a
qualification process or plan for process or design changes that will
provide WESTERN DIGITAL with modeling (where applicable), prototyping,
testing and approval by WESTERN DIGITAL prior to cut-in on WESTERN
DIGITAL'S production or development lines. SHOWA DENKO shall respond in
writing to WESTERN DIGITAL within five (5) Business Days after receiving a
WESTERN DIGITAL requested process or design change. SHOWA DENKO response
shall confirm the nature of the change, analyze the impact of the change on
both SHOWA DENKO and WESTERN DIGITAL and identify a plan of action. SHOWA
DENKO will not modify the Products, any of their components or materials,
or any related manufacturing processes without obtaining WESTERN DIGITAL'S
prior written consent.
5.8 Quarterly Business Reviews. WESTERN DIGITAL and SHOWA DENKO shall
meet on a quarterly basis for a quarterly business review. The parties
shall review SHOWA DENKO'S performance during the preceding quarter,
identify areas for improvement and recommend actions to be taken by either
party to satisfy the parties' business goals. In addition, each quarterly
business review will allocate time to review future product roadmap plans
between the parties, and also product, process, cost and quality
improvements.
6. WARRANTY.
6.1 Warranty Period. The warranty period for the Products is for a
period of one (1) year commencing upon the date of delivery of the Products
(or the date pulled from the JIT Hub, as applicable) (the "WARRANTY
PERIOD").
6.2 Warranties. SHOWA DENKO represents and warrants to WESTERN DIGITAL
and its affiliates the following (the "MEDIA WARRANTY"):
a. During the Warranty Period, the Products conform to all
applicable Specifications; and
b. During the Warranty Period, the Products will be free from
defects in material and workmanship; and
c. The Products do not infringe any patent rights, copyrights,
trademarks, trade secret, mask work right or other
intellectual property right of any third party; and
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d. The Products are new and comprised of new materials, are not
misbranded, falsely labeled or invoiced.
6.3 WESTERN DIGITAL'S acceptance, testing or approval of the goods,
design or materials will not relieve supplier of any warranty obligations.
6.4 EXCLUSIVE WARRANTIES; THIRD PARTY BENEFICIARIES. THE WARRANTIES
SET FORTH ABOVE ARE EXCLUSIVE, AND NEITHER PARTY MAKES ANY OTHER WARRANTY,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. EACH
WESTERN DIGITAL AFFILIATE IS A THIRD PARTY BENEFICIARY OF THE RIGHTS AND
REMEDIES AFFORDED WESTERN DIGITAL AS CONTAINED IN THIS SECTION 6, AND
NEITHER SHOWA DENKO NOR ANY WESTERN DIGITAL AFFILIATE MAY ABRIDGE,
TERMINATE, WAIVE OR OTHERWISE DEROGATE THE BENEFITS AFFORDED TO WESTERN
DIGITAL OR ITS AFFILIATES PURSUANT TO THIS SECTION 6.
7. WARRANTY REMEDIES.
7.1 Defective Products. If a Product (either individually or by lot)
(i) fails to meet any of the MEDIA Warranties set forth in Section 6.2,
(ii) fails to meet its intended capacity either due to poor cumulative
performance of the Product within the drive or the non-performance of an
individual Product and therefore ships at a lower capacity than originally
contemplated by the parties hereto or (iii) fails to meet WESTERN DIGITAL
requirements for quality, reliability or factory performance, which
requirements must be disclosed and confirmed by SHOWA DENKO in advance,
(either (i), (ii) or (iii), a "DEFECTIVE PRODUCT"), then WESTERN DIGITAL
shall be entitled to return for replacement or 100% full credit of the
purchase price of such Defective Product, at its election. The decision to
rework drives and return Products for credit or replacement or to exercise
the option of applying an alternate format (alt format) or waterfall shall
be at WESTERN DIGITAL'S sole discretion.
7.2 RMA. WESTERN DIGITAL or its affiliates must notify SHOWA DENKO of
any Defective Product in writing within the applicable Warranty Period.
SHOWA DENKO will promptly issue a return materials authorization number
("RMA NUMBER") for such Defective Product. SHOWA DENKO shall issue the RMA
Number within [***] after receipt of a proper request therefor and its
confirmation the Products in question are Defective Products.
7.3 Corrective Action. Within [***] of receiving written request from
WESTERN DIGITAL or its affiliates to respond to a Defective Product, or a
customer complaint, request for assistance or stop order relating to
Product, SHOWA DENKO shall send a written response to WESTERN DIGITAL or
its affiliates identifying proposed containment actions, field impact,
failure analysis schedule and an estimated completion date for root cause
analysis and recovery action plans.
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7.4 Epidemic Failure. If at any time:
(a) the Annual Failure Rate ("AFR") of a WESTERN DIGITAL HDD
product rises to a level that triggers an "Excessive
Defect," "Epidemic Defect," or "Excessive Failure" clause,
or a similar clause, in a contract, agreement or purchase
order between WESTERN DIGITAL and a WESTERN DIGITAL customer
(collectively, "Epidemic Failure"), and (ii) the defect
causing the hard disk drive failures is attributable to a
Defective Product, or
(b) the AFR of the Product exceeds [***] percent ([***]%);
then SHOWA DENKO shall reimburse WESTERN DIGITAL for all
expenses that WESTERN DIGITAL incurs in good faith to
diagnose the defect, develop tests and remedies, promptly
respond to customer inquiries and complaints, promptly
return and replace such defective Product at WESTERN DIGITAL
or its affiliates facilities, at JIT Hubs, or otherwise
positioned for use or consumption by WESTERN DIGITAL or its
affiliates, replace the hard disk drive in which the
defective Product is located, and transport to a repair or
returns center the hard disk drive in which the defective
Product is located, provided, that SHOWA DENKO'S
responsibilities under this Agreement for Epidemic Failure
in no event shall exceed the total price paid by WESTERN
DIGITAL for Products in the [***] period immediately prior
to the claim.
7.5 SHOWA DENKO agrees to promptly notify WESTERN DIGITAL if it has
reason to believe that Products are likely to present a safety risk to
WESTERN DIGITAL personnel or its customers, or the AFR of the Products is
expected to exceed [***] percent ([***]%).
8. INDEMNIFICATION.
SHOWA DENKO shall defend, indemnify and hold WESTERN DIGITAL or its
affiliates harmless from any claims of, or damages arising out of (or
alleged to have arisen out of) the following (any of the following being
referred to as a "CLAIM"): (i) the breach of SHOWA DENKO' representations
and warranties contained in Section 6.2 of this Agreement, (ii)
infringement of any third party's patent, copyright, trademark, trade
secret, mask work right or other intellectual property right, on their own
or in combination with other goods, (provided that the infringement would
not have occurred but for the incorporation of the Product in WESTERN
DIGITAL disk drive products); (iii) the misappropriation by SHOWA DENKO of
any third party's trade secrets as a result of information used by SHOWA
DENKO in connection with supplying Products under this Agreement (iv)
negligent acts or omissions of SHOWA DENKO or its personnel, and/or (v)
SHOWA DENKO' breach of a material term of this Agreement.
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SHOWA DENKO will have authority to control the defense of and defend all
Claims relating to its indemnification obligations with counsel of its own
choosing. WESTERN DIGITAL shall: (i) provide SHOWA DENKO prompt notice in
writing of any Claim and permit SHOWA DENKO, through counsel selected by
SHOWA DENKO and reasonably acceptable to WESTERN DIGITAL and SHOWA DENKO,
to answer and defend such Claim; and (ii) provide SHOWA DENKO information,
assistance and authority, at SHOWA DENKO'S expense, to help SHOWA DENKO to
defend such Claim. Notwithstanding anything to the contrary and in the case
of a final award or settlement, SHOWA DENKO shall pay such award but shall
not be responsible for any settlement made without its prior written
consent. SHOWA DENKO may not settle any Claim under this Section on WESTERN
DIGITAL'S behalf without first obtaining WESTERN DIGITAL'S written
permission. In the event WESTERN DIGITAL and SHOWA DENKO agree to settle a
Claim, the parties agree not to publicize the settlement without first
obtaining the other's written permission, which permission shall not be
unreasonably withheld.
If a third party files a claim in a court of competent jurisdiction
alleging that the Products infringe an intellectual property right, SHOWA
DENKO will, in addition to its obligations under the first paragraph of
this Section 8, promptly notify WESTERN DIGITAL in writing and, at its own
expense, exercise the first of the following remedies that is practicable:
(i) obtain for WESTERN DIGITAL the right to continue to use and sell the
Products consistent with this Agreement; (ii) modify the Products so they
are non-infringing and in compliance with this Agreement; (iii) replace the
Products with non-infringing ones that comply with this Agreement; or (iv)
at WESTERN DIGITAL'S request, accept the cancellation of infringing
Products and refund any amount paid for such infringing Products.
9. EACH WESTERN DIGITAL AFFILIATE IS A THIRD PARTY BENEFICIARY OF THE RIGHTS
AND REMEDIES AFFORDED WESTERN DIGITAL AS CONTAINED IN THIS AGREEMENT,
INCLUDING SECTIONS 6 (WARRANTY) AND 8 (INDEMNIFICATION), AND NEITHER SHOWA
DENKO NOR ANY WESTERN DIGITAL OR ITS AFFILIATES MAY ABRIDGE, TERMINATE,
WAIVE OR OTHERWISE DEROGATE THE BENEFITS AFFORDED TO WESTERN DIGITAL AND
THE WESTERN DIGITAL OR ITS AFFILIATES THEREUNDER.
10. LIMITATION OF LIABILITY. EXCEPT FOR (I) SHOWA DENKO'S BREACH OF THE MEDIA
WARRANTY CAUSING EPIDEMIC FAILURE AS SET FORTH IN SECTION 7.4, AND SUBJECT
TO THE LIMITATION SET FORTH THEREIN or (II) INDEMNIFICATION OBLIGATIONS AS
SET FORTH IN SECTION 8 AND (III) CONFIDENTIALITY (SECTION 22.1)(INCLUDING
THOSE CONTAINED IN THE NDA), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES
OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR SAVINGS, LOST
REVENUES OR BUSINESS INTERRUPTION BASED ON ANY BREACH OR DEFAULT OF THE
OTHER PARTY, WHETHER FOR BREACH
11
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OF ANY WARRANTY, FOR BREACH OR REPUDIATION OF ANY OTHER TERM OR CONDITION,
FOR NEGLIGENCE, ON THE BASIS OF STRICT LIABILITY, OR OTHERWISE. NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR ANY EXEMPLARY OR PUNITIVE DAMAGES OF
ANY KIND.
11. TECHNOLOGY EXCHANGE PROVISION.
11.1 SHOWA DENKO shall provide detailed product and process design
specifications, drawings, documents and test data for all Products (as
detailed in EXHIBIT 3.1) or Media under supply, development or planned
development for WESTERN DIGITAL.
11.2 WESTERN DIGITAL shall provide all MEDIA relevant specifications,
documents, test data and product characterization results for MEDIA or
products manufactured by WESTERN DIGITAL in which a SHOWA DENKO Product is
installed or to be installed.
11.3 Development platforms to be disclosed under this Section 11
include, all standard [***] products.
11.4 Each party as required will be allowed access to each parties
facilities in the normal course of business to allow "reasonable and
normal" auditing of product and process to insure compliance to product,
process and environmental requirements.
12. TERMINATION OF AGREEMENT.
12.1 Termination. Subject to Sections 12.4 and 12.5:
a. in the event of a material failure of SHOWA DENKO to meet
mutually agreed development milestones with respect to a Product
or maintain the quality level of a particular Product to WESTERN
DIGITAL'S reasonable satisfaction, this Agreement may be
terminated in part as to the designation of SHOWA DENKO as a
qualified supplier under this Agreement of such specific Product
upon not less than 30 days advance written notice by WESTERN
DIGITAL to SHOWA DENKO, and the Volume Requirements may be
reduced by WESTERN DIGITAL accordingly in its discretion; or
b. in the event of a Material Default by the other party that is not
cured within ten (10) days after written notice of such Material
Default, which notice must describe the reason for such Material
Default, then the other party may terminate this Agreement
effective immediately.
12.2 Termination for Insolvency. If either SHOWA DENKO or WESTERN
DIGITAL (i) makes a general assignment for the benefit of creditors or
becomes insolvent; (ii) files an insolvency petition in bankruptcy; (iii)
petitions for or acquiesces
12
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in the appointment of any receiver, trustee or similar officer to liquidate
or conserve its business or any substantial part of its assets; (iv)
commences under the laws of any jurisdiction any proceeding involving its
insolvency, bankruptcy, reorganization, adjustment of debt, dissolution,
liquidation or any other similar proceeding for the release of financially
distressed debtors; or (v) becomes a party to any proceeding or action of
the type described above in (iii) or (iv) and such proceeding or action is
not dismissed or relief from stay is not obtained for a period of more than
sixty (60) days, then the other party may by written notice terminate this
Agreement in its entirety with immediate effect.
12.3 Termination Upon Change in Control. In the event that more than
fifty percent (50%) of the outstanding shares or securities (representing
the right to vote for the election of directors or other managing
authority) of one party hereto hereafter become owned or controlled,
directly or indirectly, by a third party, or upon a merger, consolidation
or sale of all or substantially all of a party's assets ("CHANGE OF
CONTROL"), said one party shall promptly give notice of such Change of
Control to the other party, and the other party shall have the right upon
written notice to the other party to terminate this agreement upon the date
set forth in the notice following such Change of Control and the Change of
Control shall constitute a Material Default. If said one party does not
have outstanding shares or securities, such Change of Control shall be
deemed to occur if more than fifty percent (50%) of its ownership interest
representing the right to make decisions for said party is acquired by said
third party.
12.4 Effect of Termination. In all cases the provisions of Sections
4.5, 4.7, Section 6 through 10, this Section 12.4, Section 12.5, Section
16, Section 17.2 (document retention requirements) and Sections 21 and 22
shall survive the termination hereof.
12.5 Separation Plan. In the event that this Agreement is terminated
in whole or in part, then within ten (10) days after written notice of
termination, the parties shall meet to develop a mutually agreed upon
separation plan. Unless the termination of this Agreement was a result of
SHOWA DENKO'S failure to meet the Specifications or the Product was found
to infringe on a third party's intellectual property right, WESTERN DIGITAL
or its affiliates shall be permitted, in their discretion, to continue to
order Products in accordance with Section 4.4 hereof, and SHOWA DENKO shall
continue to supply Products to WESTERN DIGITAL or its affiliates in
accordance with such orders and forecasts and this Agreement for the "FINAL
TRANSITION PERIOD" as defined below after termination of this Agreement, in
whole or in part, and otherwise in accordance with such mutually agreed
upon separation plan. Notwithstanding anything to the contrary contained
herein, SHOWA DENKO shall not be obligated to sell Product to WESTERN
DIGITAL or its affiliates for more than 180 days. This Agreement shall
remain in full force and effect with respect to such orders and forecasts
until the earlier of (i) the date specified in the mutually agreed upon
separation plan; or (ii) expiration of the applicable Final Transition
Period. As used herein, the "Final Transition Period" means one hundred
eighty (180) days, and this Agreement, including Pricing and Media
Warranty, shall continue in effect during such 180 day period.
13
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13. TRANSFERABILITY OF RIGHTS AND OBLIGATIONS. This Agreement is not assignable
without the express written consent of the other party. Notwithstanding the
foregoing, upon notice to SHOWA DENKO, WESTERN DIGITAL may assign this
Agreement to any wholly owned Subsidiary of WESTERN DIGITAL CORPORATION, a
Delaware corporation. Any delegation or assignment made in contravention of
this Section shall be void and of no legal force or effect.
14. NOTICE. Whenever notice is required under the provisions of this Agreement,
such notice shall be in writing, shall be in English, shall be sent to the
other party at the address set forth below or at such other address as the
party shall have specified by written notice and shall be deemed
sufficiently given (i) upon receipt, if sent by air courier service
(requiring signature upon receipt), or (ii) five (5) days after deposit,
postage prepaid, in U.S. or international airmail.
If to SHOWA DENKO
SHOWA DENKO K.K.
5-1 YAWATAKAIGAN-DORI ICHIHARA-SHI
CHIBA- KEN, 290-0067 JAPAN
ATTENTION: MARKETING GROUP
TELEPHONE: 0436-43-8611
TELECOPY: 0436-41-3511
If to WESTERN DIGITAL:
Western Digital Technologies, Inc.
20511 Lake Forest Drive
Lake Forest, California 92630
Attn: General Counsel
Telephone: 949-672-7000
Telecopy: 949-672-5444
15. FORCE MAJEURE. Neither Party to this Agreement shall be liable for its
failure to perform any of its obligations hereunder, or for its failure to
cure any default under this Agreement, during any period in which such
performance or cure is delayed or prevented by war, embargo, riot, or any
other acts of god beyond the control of such party; provided that such
party shall immediately notify the other party in writing of the reasons
for the delay and, if possible, the duration of such delay.
16. SEVERABILITY. In the event that any provision of this Agreement is
determined to be invalid or unenforceable under applicable law, the
validity of the remaining portions of this Agreement shall be unaffected
and shall continue in full force and effect.
14
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17. COMPLIANCE WITH LAWS.
17.1 Compliance. All Products supplied and work performed under this
Agreement will comply with all applicable Japanese and U.S. governmental
laws and regulations in effect, including the Japanese and U.S. Export
Administration Regulations, and other agencies or departments of Japanese
and U.S. government. Each party to this Agreement will comply with all
applicable export, re-export and foreign policy controls and restrictions
imposed by the U.S., Japan and the country in which they are located. The
parties to this Agreement may not export, re-export or allow to be
disclosed, any technical data received from any party hereto or the product
of any technical data to any person or destination to the extent prohibited
by law.
17.2 Foreign Corrupt Practices Act. SHOWA DENKO shall take no action
which, if taken by or with the knowledge of WESTERN DIGITAL, could be
construed as or constitute a violation of the United States Foreign Corrupt
Practices Act. SHOWA DENKO shall not, directly or indirectly, offer, pay,
promise to pay, or authorize the payment of any money or offer, give,
promise to give, or authorize the giving of anything of value (i) to any
official of the government of any country or any instrumentality thereof,
or (ii) to any person, while knowing or having reason to know that all or a
portion of such money or thing of value will be offered, given or promised
directly or indirectly to any official of the government of any country or
any instrumentality thereof, for purposes of: (i) influencing any act or
decision of such official in his official capacity, including a decision to
fail to perform his official functions; or (ii) inducing such official to
use his influence with the government of any country or instrumentality
thereof to affect or influence any act or decision of such government or
instrumentality, in order to obtain or retain business for or with, or
direct business to, any person. SHOWA DENKO agrees that it will retain all
documents and other information relating to export activities under this
and predecessor Agreements, both written and on electronic storage media,
for a minimum period of five (5) years, and longer if required under
applicable law.
17.3 Continuing Obligations. SHOWA DENKO acknowledges and agrees that
its obligations under this Section 17 are continuing in nature and that, in
the event of any change in any material fact from that previously
represented to WESTERN DIGITAL in connection with these obligations, it
will immediately notify WESTERN DIGITAL of such change.
18. NONWAIVER. No failure or delay on the part of a party in the exercise of
any power or right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power or right preclude other or
further exercise thereof or of any other right or power; provided, however,
that a party may by a written document executed by it: (a) extend the time
for the performance of any of the agreements or covenants of the other
party under this Agreement; (b) waive any inaccuracies in the
representations or warranties of the other party contained in this
Agreement or in any document delivered pursuant hereto; (c) waive the
performance by the other party of any of the agreements or covenants to be
performed by the other party under this Agreement; or (d) waive the
satisfaction of any conditions precedent to its obligations under this
Agreement. The
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TREATMENT.
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waiver by a party of a breach of any provision of this Agreement shall not
operate or be construed as a waiver of any other or subsequent breach
hereunder. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
19. ADVERTISING. Nothing contained in this Agreement shall be construed as
conferring upon either party to this Agreement any right to use in
advertising, publicity or other promotional activities any name, trade
name, trademark or other designation of the other party hereto (including
any contraction, abbreviation or simulation of any of the foregoing).
Except as permitted by the NDA, each party hereto agrees not to use or
refer to this Agreement or any provision thereof in any advertising or
publicity without the express written approval of the other party. Neither
party will use any trademarks, service marks, trade names, logos or other
commercial or product designations of the other party for any purpose
except as specifically allowed by the other party's published trademark
guidelines or with the other party's prior written consent.
20. APPLICABLE LAW; DISPUTE RESOLUTION.
20.1 Governing Law and Language. The governing law of this Agreement
shall be the substantive law of the State of California (without giving
effect to the conflicts of law provisions thereof), as from time to time in
force. Each party shall submit to and hereby waives any right to contest,
the exclusive jurisdiction of the federal courts located in Los Angeles,
California and the state courts located in Orange County, California, as
applicable. The governing language of this Agreement shall be English and
any translation of this Agreement shall be for convenience only and shall
not be binding on the parties hereto. The 1980 United Nations Convention on
Contracts for the International Sale of Goods, as amended, shall not be
applicable to this Agreement.
20.2 Resolution by Parties. All disputes, controversies or claims
between or among the parties and/or any of their subsidiaries or affiliates
arising out of, or relating to this Agreement or the breach, termination,
invalidity or performance hereof (collectively, a "DISPUTE"), shall be
settled, if reasonably possible, through good faith negotiations between
the relevant parties. If a settlement is not reached within three (3)
months, such Disputes shall be finally settled by arbitration, and such
arbitration shall be binding upon both disputing parties. The arbitration
shall be held in Los Angeles, California, in accordance with the
Arbitration rules of American Arbitration Association.
21. PERFORMANCE DURING PENDENCY OF DISPUTES. If a dispute arises between the
parties, subject to the terms and conditions of this Agreement, (a) in no
event nor for any reason shall SHOWA DENKO interrupt the provision of
Products to WESTERN DIGITAL, delay manufacture or delivery of Products or
perform any other action that prevents, slows down, or reduces in any way
the provision of Products or WESTERN DIGITAL'S ability to conduct its
business; and (b) each party shall continue to perform its obligations
under this Agreement, unless: (x) authority to do so has been granted by
the other party or conferred by a court of competent jurisdiction; or (y)
this Agreement has been
16
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terminated pursuant to Section 12.1, 12.2, 12.3 and the Final Transition
Period has occurred.
22. MISCELLANEOUS.
22.1 Confidentiality. The provisions of the NDA shall apply to the
disclosure and use of Confidential Information disclosed in connection with
this Agreement. Further, during the term of this Agreement, the parties
shall keep secret and confidential the content of this Agreement and shall
not, without the prior written consent of the other party divulge it to any
third party unless required to be disclosed by law. The parties agree that
they shall work together to seek confidential treatment for certain
confidential portions of this Agreement if WESTERN DIGITAL determines that
the Agreement is required to be filed with the Securities and Exchange
Commission.
22.2 Binding Effect; Amendments. This Agreement will not be binding
upon the parties until it has been signed by an authorized signatory on
behalf of each party. No amendment or modification hereof shall be valid or
binding upon the parties unless made in writing and signed as aforesaid.
22.3 Headings. The headings of the several sections of this Agreement
are inserted for convenience of reference only and are not intended to be a
part of or to affect the meaning or interpretation of this Agreement.
22.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
22.5 Intellectual Property Rights. This Agreement does not grant
either party any right to the other party's patents, copyrights,
trademarks, trade secrets, or other forms of intellectual property.
Notwithstanding the foregoing, SHOWA DENKO grants WESTERN DIGITAL an
irrevocable, nonexclusive, worldwide, royalty-free right to all
intellectual property and other proprietary rights of SHOWA DENKO necessary
to permit WESTERN DIGITAL and others authorized by WESTERN DIGITAL to use,
have used, disseminate, sell, or distribute the Products sold by SHOWA
DENKO hereunder.
22.6 Complete Agreement. This Agreement supersedes all prior and
contemporaneous agreements and representations made, whether oral or
written, express or implied, with respect to the same subject matter and
contains the entire agreement between the parties with respect to the
subject matter hereof and shall not be modified except by an instrument in
writing signed by duly authorized representatives of each party. In the
event of any discrepancy or inconsistency between this Agreement and any
other form, agreement or order used or proposed by either party in
connection herewith or with the transactions contemplated herein, the terms
of this Agreement shall govern and such other form, agreement or order
shall be effective only to show the quantity, model, date of order and date
of delivery.
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22.7 Relationship of the Parties. The relationship between the parties
hereto is that of independent contractors, and nothing contained herein
shall be construed as establishing a partnership or joint venture between
the parties. No party hereto shall make any commitment, by contract or
otherwise, binding upon the other, nor represent that it has any authority
to do so.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by their duly authorized representatives as of the Effective Date.
WESTERN DIGITAL TECHNOLOGIES, INC.
By: /s/ Renate K. Quigley
------------------------------------
Title: V.P. Asia Materials
SHOWA DENKO K.K.
By: /s/ Kenichi Izumi
------------------------------------
Title: General Manager
HD Division
List of Exhibits
Exhibit 3.1 "Product" definitions
Exhibit 3.2 Volume and Pricing Chart
18
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EXHIBIT 3.1
"PRODUCTS"
The following listed "Products" are defined for the purpose of Volume,
[***] and Technology Exchange. All other Media subject to written proposals or
amendments to this table and agreement.
1.0" Glass
1.8" Glass
2.5" Glass
3.5" Aluminum
3.0" Aluminum or Glass
1
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EXHIBIT 3.2
PRODUCT UNIT VOLUMES
(IN MILLIONS)
FQ2/06 FQ3/06 FQ4/06 FQ1/07 FQ2/07 FQ3/07 FQ4/07 FQ1/08 FQ2/08
- ------ ------ ------ ------ ------ ------ ------ ------ ------
[***] [***] [***] [***] [***] [***] [***] [***] [***]
* Showa Denko agrees to use commercially reasonable efforts to increase
volume in FQ2/06 from [***] units of Product to [***] units of Product.
Any increases in unit volumes per quarter mutually agreed to by the parties and
any additional [***] associated therewith shall be set forth in an amendment to
this Exhibit 3.2 shall be made in accordance with the Agreement and signed by
the parties.
WESTERN DIGITAL FISCAL QUARTERS
Month Start Date End Date Weeks
- ----- ---------- --------- -----
FISCAL QUARTER 1 2006
July 2005 07/02/2005 07/29/05 4
August 2005 07/30/05 08/26/05 4
September 2005 08/27/05 09/30/05 5
FISCAL QUARTER 2 2006
October 2005 10/01/05 10/28/05 4
November 2005 10/29/05 11/25/05 4
December 2005 11/26/05 12/30/05 5
FISCAL QUARTER 3 2006
January 2006 12/31/05 01/27/06 4
February 2006 01/28/06 02/24/06 4
1
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TREATMENT.
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March 2006 02/25/06 03/31/06 5
FISCAL QUARTER 4 2006
April 2006 04/01/06 04/28/06 4
May 2006 04/29/06 05/26/06 4
June 2006 05/27/06 06/30/06 5
FISCAL QUARTER 1 2007
July 2006 7/1/06 7/28/06 4
August 2006 7/29/06 8/25/06 4
September 2006 8/26/06 9/29/06 5
FISCAL QUARTER 2 2007
October 2006 9/30/06 10/27/06 4
November 2006 10/28/06 11/24/06 4
December 2006 11/25/06 12/29/06 5
FISCAL QUARTER 3 2007
January 2007 12/30/06 01/26/07 4
February 2007 01/27/07 02/26/07 4
March 2007 02/24/07 03/30/07 5
FISCAL QUARTER 4 2007
April 2008 3/31/2007 4/27/2007 4
May 2008 4/28/2007 5/25/2007 4
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June 2008 5/26/2007 6/29/2007 5
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EXHIBIT 3.2
CONTINUED
A. [***]. WESTERN DIGITAL shall [***] the following [***] to SHOWA DENKO ([***])
in the [***] and on the dates set forth below, or, in total of [***] to be
applied against [***] of Product in accordance with Section 1.1(b):
[***] NO. DATE [***]
- --------- ----- ------
[***] [***] [***]
WESTERN DIGITAL may delay [***] of any [***] until SHOWA DENKO [***]. The total
[***] by SHOWA DENKO at any given time shall be called the "[***]."
B. [***] SCHEDULE. [***], SHOWA DENKO shall make [***] to WESTERN DIGITAL in the
[***] of [***] on the first business day of [***] toward the [***]; and [***]
SHOWA DENKO shall make [***] to WESTERN DIGITAL in the [***] of [***] on the
first day of each [***] (for a [***] of [***]) until the [***]. In the event the
[***], SHOWA DENKO shall immediately [***] to WESTERN DIGITAL in the [***] of
the [***].
C. [***] RESTRICTION. The parties agree that it is their mutual intent that the
[***] be used by SHOWA DENKO solely to [***], and not for SHOWA DENKO'S general
[***] purposes.
D. Upon the occurrence of any of the following events, either party may
immediately set off and recoup any debt it (including its subsidiaries or
affiliates) owes the other party (including its subsidiaries and affiliates),
regardless when payment is due, against any debt, credit or other obligation or
liability payable [***] (regardless whether such debt, obligation or liability
arose out of or relates to the Agreement:
i) Material Default under Section 12.1; or
ii) insolvency event as set forth in Section 12.2 of the Agreement; or
iii) change in control event as set forth in Section 12.3 of the Agreement.
4
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EXHIBIT 3.3
DEVELOPMENT [***]
[***] WD Facility or JIT HUB
All MEDIA shipment trays to be returned to SHOWA
DEVELOPMENT [***] MATRIX
([***])
Samples [***]
F [***]
D [***]
V [***]
LVM [***]
PRODUCT FAILING TO MEET GENERAL SPECIFICATIONS, MECHANICAL OR ELECTRICAL
TESTING IS SUBJECT TO RTV FOR CREDIT OR REPLACEMENT AT WESTERN DIGITAL
DISCRETION.
DEVELOPMENT SCHEDULES ARE SUBJECT TO REVISION BASED ON TECHNICAL AND OPERATIONAL
ISSUES. DETAILED SCHEDULES AND REQUIREMENTS CONCERNING SHOWA DENKO MEDIA WILL BE
PUBLISHED TO SHOWA DENKO FOR EACH INDIVIDUAL PROGRAM AND REVISED AS REQUIRED.
VOLUME [***]
([***])
FQ2/06 FQ3/06 FQ4/06 FQ1/07 FQ2/07 FQ3/07 FQ4/07 FQ1/08 FQ2/08
------ ------ ------ ------ ------ ------ ------ ------ ------
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
AL = ALUMINUM
GL = GLASS
SFF = SMALL FORM FACTOR, GLASS
TBD = [***] TO BE DETERMINED IN ACCORDANCE WITH THE TERMS SET FORTH BELOW
1
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ALL [***] FOR [***] MEDIA SHALL BE MUTUALLY AGREED BY THE PARTIES AND [***] AT
THE TIME OF NEGOTIATION OR PURCHASE.
ALL [***] FOR [***] MEDIA SHALL BE IN ACCORDANCE WITH THE [***] SET FORTH IN
SECTION 3.3(A) OF THE AGREEMENT AND IN NO EVENT SHALL [***].
2