EXHIBIT 10.36
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AGREEMENT FOR FABRICATION AND PURCHASE OF SEMICONDUCTOR
PRODUCTS
between
INTERNATIONAL BUSINESS MACHINES CORPORATION
and
WESTERN DIGITAL CORPORATION
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AGREEMENT FOR FABRICATION AND PURCHASE OF SEMICONDUCTOR
PRODUCTS
Section Page
------- ----
1.0 DEFINITIONS .............................................. Page 3 of 24
2.0 UTILIZATION OF PRODUCTS .................................. Page 4 of 24
3.0 CONTRACT PERIOD .......................................... Page 4 of 24
4.0 PRODUCT PURCHASE INFORMATION ............................. Page 4 of 24
5.0 PURCHASE ORDERS .......................................... Page 4 of 24
6.0 SECURITY INTEREST ........................................ Page 5 of 24
7.0 INVOICING, PAYMENT TERMS, TAXES .......................... Page 5 of 24
8.0 TERMINATION .............................................. Page 6 of 24
9.0 ENGINEERING CHANGES ...................................... Page 7 of 24
10.0 PRODUCT WARRANTY ......................................... Page 8 of 24
11.0 IBM TRADEMARKS AND TRADE NAMES ........................... Page 9 of 24
12.0 INTELLECTUAL PROPERTY RIGHTS INDEMNITY ................... Page 9 of 24
13.0 CONFIDENTIAL INFORMATION ................................. Page 10 of 24
14.0 LIMITATION OF REMEDIES ................................... Page 11 of 24
15.0 NOTICES .................................................. Page 12 of 24
16.0 GENERAL PROVISIONS ....................................... Page 12 of 24
ATTACHMENT 1 .................................................... Page 15 of 24
JIT PROGRAM SUPPLEMENT .......................................... Page 20 of 24
EXHIBIT I (FORM PARTICIPATION AGREEMENT) ........................ Page 24 of 24
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AGREEMENT FOR FABRICATION AND PURCHASE OF SEMICONDUCTOR
PRODUCTS
Agreement Number: 000690
Customer Number: WD1
This Agreement for Fabrication and Purchase of Semiconductor Products
("Agreement"), Agreement Number 000690, dated February 7, 2001, is made and
entered into by and between Western Digital Corporation ("Buyer") and
International Business Machines Corporation ("IBM").
Buyer agrees to purchase and IBM agrees to fabricate and sell the Products as
specified herein in accordance with the terms and conditions stated in this
Agreement including its Attachments.
1.0 DEFINITIONS
1.1 Commencement Date: February 7, 2001.
1.2 Engineering Change: A mechanical or electrical change to Product
which may affect form, fit, function or maintainability.
1.3 Plant of Manufacture: The IBM location that manages the
consolidation/assembly and shipment of Product to IBM
Distribution Points or Buyer.
1.4 Product(s): The product(s) to be fabricated, sold and purchased
under this Agreement and listed in Attachments.
1.5 Purchase Order: An order submitted by Customer for the purchase
of Products under this Agreement.
1.6 Purchase Order Lead Time: The required minimum amount of time
between IBM's receipt of the purchase order issued by Buyer and
the requested shipment date that is necessary to accommodate
manufacturing cycle time.
1.7 Shipment Date: The date for shipment of Product requested by
Buyer in a Purchase Order accepted by IBM.
1.8 Related Company: A corporation, company or other entity which
controls or is controlled by a party hereunder or by another
Related Company of such party, where control means ownership or
control, direct or indirect, of more than fifty (50) percent of:
(i) the outstanding voting shares or securities (representing
the
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right to vote for the election of directors or managing
authority), or (ii) the ownership interests representing the
right to make decisions for such a corporation, company or other
entity (as the case may be in a partnership, joint venture or
unincorporated association having no outstanding shares or
securities). However, any such corporation, company or other
entity shall be deemed to be a Related Company of such party
only so long as such ownership or control exists.
1.9 Unit(s): A single unit of the Product.
2.0 UTILIZATION OF PRODUCTS
IBM will not have any installation, warranty or maintenance
responsibilities for Product except as referred to in Section 9.0
entitled "Engineering Changes", and Section 10.0 entitled "Product
Warranty" unless otherwise agreed to in writing between the parties.
3.0 CONTRACT PERIOD
The term of this Agreement shall begin on the Commencement Date and
expire on February 7, 2003.
4.0 PRODUCT PURCHASE INFORMATION
Product forecasting, pricing, shipping terms and related provisions, if
applicable, are set forth in Attachments or the Just In Time (JIT)
Program Supplement ("the Supplement").
5.0 PURCHASE ORDERS
5.1 Buyer shall order Product by issuing written Purchase Orders,
which are subject to acceptance by IBM. Acknowledgment of
acceptance or rejection of Purchase Orders must be made within
seven (7) days. If IBM fails to accept or reject a Purchase
Order within such period, both Buyer and IBM agree to discuss if
any options or provisions are available to resolve the issue.
IBM and Buyer authorize Buyer's Related Companies to purchase
under this Agreement, provided that such Related Company enters
into a "Participation Agreement" in the form attached hereto at
Exhibit 1. IBM shall ship Units in accordance with such Purchase
Orders. Purchase Orders must be placed in advance, with at least
the Purchase Order Lead Time specified in Attachments, to allow
IBM to meet Buyer's requested Shipment Date. Buyer may request
an improved shipment date, however, such request is subject to
acceptance by IBM.
5.2 Except for Product part numbers, part number descriptions,
price, and quantities, Purchase Orders and acknowledgments will
be used to convey information only and any terms and conditions
on those are void and replaced by this Agreement.
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5.3 Purchase Orders shall include the following:
a) Product being purchased;
b) quantity requested;
c) Product price per the applicable Attachment;
d) destination address and requested Shipment Date(s); and
e) reference to this Agreement and Agreement Number.
5.4 [***]
6.0 SECURITY INTEREST
IBM reserves a purchase money security interest in each Unit purchased
under this Agreement in the amount of its Product price and in Buyer's
proceeds from Product, including accounts receivable. These interests
will be satisfied by payment in full. Buyer agrees to execute UCC-1
financing statements or other appropriate documents to be filed on IBM's
behalf with appropriate state or other authorities in order to perfect
IBM's security interest.
7.0 INVOICING, PAYMENT TERMS, TAXES
7.1 [***]
7.2 Buyer agrees to pay amounts equal to any taxes resulting from
this Agreement, or any activities hereunder, exclusive of taxes
based on IBM's net income. Buyer shall be responsible for any
personal property taxes assessable on Products after delivery to
the carrier.
7.3 Buyer hereby certifies that it holds a valid Reseller's
exemption certificate for Products purchased for resale in each
applicable taxing jurisdiction. Based on this certification, IBM
shall, where the law permits, treat Buyer as exempt from
applicable state and/or local sales tax for Product purchased
hereunder.
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7.4 Where required by state or local law, Buyer shall provide IBM
with a valid Reseller's Exemption Certificate for each taxing
jurisdiction to which IBM will ship Products.
7.5 Buyer shall notify IBM promptly in writing of any modification
or revocation of its exempt status. Buyer shall reimburse IBM
for any and all assessments resulting from a refusal by a taxing
jurisdiction to recognize any Buyer exemption certificates, or
from Buyer's failure to have a valid certificate. If Buyer
purchases Product under this Agreement for internal use, Buyer
agrees to notify IBM and pay applicable sales tax.
8.0 TERMINATION
8.1 If Buyer shall fail to make payments in a timely fashion in
accordance with Section 7.1, IBM may terminate this Agreement
upon written notice to Buyer.
8.2 Other than in the case of nonpayment, if either party is in
default of any material provision of this Agreement and such
default is not corrected within thirty (30) days of receipt of
written notice, this Agreement may be terminated by the party
not in default. If the default is such that it cannot be
reasonably cured within thirty (30) days, then the defaulting
party must commence cure within thirty (30) days and proceed to
cure with due diligence.
8.3 If Buyer terminates due to IBM default, all outstanding Purchase
Orders shall be fulfilled by IBM unless Buyer notifies IBM in
its default notice of its desire to cancel any or all such
Purchase Orders, [***]
8.4 If IBM terminates due to Buyer default, at IBM's discretion, all
outstanding Purchase Orders shall be automatically cancelled and
cancellation charges will apply in addition to any other amounts
then due.
8.5 Notwithstanding the provisions of Section 8.2, IBM shall have
the right to terminate this Agreement immediately upon the
occurrence of any of the following events:
a) A Change of Control of Buyer shall have occurred; for
purposes of this Agreement, a "Change in Control" shall
be deemed to have occurred if the stockholders of Buyer
shall approve any plan or proposal for the liquidation
or dissolution of Buyer.
b) (i) Buyer shall (a) voluntarily commence any proceeding
or file any petition seeking relief under Title II of
the United States Code or any other Federal or state
bankruptcy, insolvency, or similar law, (b) consent to
the
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institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of
any such petition, (c) apply for or consent to the
appointment of a receiver, trustee, custodian,
sequestrator, or similar official for Buyer or for a
substantial part of its property or assets, (d) file an
answer admitting the material allegations of a petition
for involuntary bankruptcy filed against it in any such
proceeding, (e) make a general assignment for the
benefit of creditors, (f) admit in writing its inability
to pay its debts as they become due or (g) take
corporate action for the purpose of effecting any of the
foregoing; or
(ii) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of
competent jurisdiction seeking (a) relief in respect of
Buyer or of a substantial part of any of its property or
assets, under Title 11 of the United States Code or any
other Federal or state bankruptcy, insolvency, or
similar law, (b) the appointment of a receiver, trustee,
custodian, sequestrator, or similar official for Buyer
or for a substantial part of its property or (c) the
winding-up or liquidation of Buyer, and, if and so long
as contested by Buyer, either such proceeding or
petition described in this clause (ii) shall continue
undismissed for ninety (90) days or an order or decree
approving or ordering any of the foregoing shall
continue unstayed and in effect for ninety (90) days.
(c) In the event of termination under this Section 8.5, all
amounts owing to IBM shall become immediately due and
payable.
9.0 ENGINEERING CHANGES
9.1 IBM may implement Engineering Changes required to satisfy
governmental standards, protect data integrity or for safety or
environmental reasons ("Mandatory Engineering Changes"). IBM
will provide reasonable written notification to Buyer prior to
implementation of a Mandatory Engineering Change. IBM reserves
the right prior to delivery of Product to make Mandatory
Engineering Changes without prior approval from Buyer.
9.2 [***]
9.3 For all previously shipped Product, IBM may issue Mandatory
Engineering Changes (including parts, materials and
documentation) at no charge to Buyer. IBM may also furnish to
Buyer detailed installation instructions and any special tools,
equipment, media and other related requirements for each
Mandatory Engineering Change under this Agreement. Buyer must
install Mandatory Engineering Changes on all Buyer installed
Products and Products in its inventory
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as specified by IBM and within a reasonable time period as
specified by IBM. In the event Buyer fails to perform this
responsibility in the manner and time as specified by IBM, IBM
may install or cause to be installed Mandatory Engineering
Changes on all Buyer installed Products and Products in Buyer's
inventory at Buyer's expense, to include the cost of IBM labor
at the then applicable rates plus incidental travel expenses.
Buyer agrees to use its best efforts to obtain access for IBM to
install or cause to be installed such Mandatory Engineering
Changes on all Products sold or leased by Buyer, its Related
Companies and Resellers. At IBM's option, such service may be
performed at an IBM location, at Buyer's location, or at Buyer's
customer location.
If IBM requests the return of parts displaced from Units by
installation of a Mandatory Engineering Change, Buyer will
return those parts to IBM within ninety (90) days after
installation of such Change.
9.4 IBM may make available other Engineering Changes as requested by
Buyer ("Optional Engineering Changes"). The cost of any Optional
Engineering Changes that Buyer desires to implement will be
borne by Buyer.
10.0 PRODUCT WARRANTY
10.1 IBM warrants that any Units shipped under this Agreement will be
free from any liens or other defects in title.
10.2 IBM warrants that each Unit will be free from defects in
material and workmanship for the warranty period as provided in
the applicable Attachment, and will conform, when delivered, to
IBM's wafer and module test program for the Product and to any
specifications set forth in the applicable Attachment. This
warranty does not address performance or nonperformance of
Product.
10.3 For a Product which Buyer determines during the warranty period
does not conform to the warranty, IBM's obligation is limited to
repairing, replacing or providing a credit for the Product.
Products, as appropriate, found by Buyer to be defective shall
be shipped transportation collect by Buyer to the designated IBM
location. If IBM elects to repair or replace the Product, IBM
will ship it back to Buyer, transportation prepaid by IBM.
Exchanged parts will be free from any liens or other defects in
title except as set forth in Section 6.0 above and will become
the property of IBM.
10.4 Should any Product while under warranty returned to IBM
hereunder be found by IBM to be without defect, IBM will return
such Product to Buyer and invoice Buyer for return
transportation and for IBM's inspection time using IBM's then
applicable hourly rates. Payment will be due and payable by
Buyer upon receipt of the invoice.
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10.5 This warranty does not include credit, repair or replacement for
Products which are defective because of failure to provide a
suitable installation environment, accident, disaster, neglect,
abuse, misuse, transportation, alterations, attachments,
accessories, supplies, non-IBM parts, or improperly performed
repairs activities.
10.6 THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
11.0 IBM TRADEMARKS AND TRADE NAMES
11.1 Neither this Agreement nor the sale of Product hereunder shall
be deemed to give Buyer any right to use IBM's trademarks or any
of IBM's trade names without IBM's specific, written consent.
11.2 Buyer agrees IBM has ownership of and title to the trademark
"IBM", all other trademarks and trade names of IBM, and the
goodwill attaching thereto and agrees that any goodwill which
accrues because of Buyer's use of the trademark "IBM" and any
other trademarks and trade names of IBM shall vest in and become
the property of IBM. Buyer will not contest, or take any action
to contest, the trademarks or trade names of IBM, or use, employ
or attempt to register any trademark or trade name which is
confusingly similar to the trademarks or trade names of IBM.
11.3 If IBM in its sole judgment determine that any of Buyer's
advertising, promotional or related materials are an inaccurate
or misleading use or a misuse of IBM trademarks or trade names,
Buyer will, upon notice from IBM, change or correct such
materials at its own expense.
12.0 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
12.1 IBM shall, at its own expense, defend any suit that is
instituted by an owner of a patent, copyright or mask work right
against Buyer to the extent such suit alleges that any Products,
other than prototypes, or any part thereof sold or leased
hereunder infringe any such patent, copyright or mask work right
(except Products covered by Section 12.3, below), provided that
such alleged infringement does not arise from any modification
or addition made to the Products by anyone other than IBM, or
the use of such Products as a part of or in combination with any
other devices or parts or process, and provided further that the
Buyer gives IBM prompt notice in writing of any such suit and
permits IBM, through counsel of its choice, to answer the charge
of infringement and defend such suit; and the Buyer gives IBM
all the needed information, assistance and authority, at IBM's
expense, to enable IBM to defend or settle such suit. In the
case of a final award of
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damages in any suit IBM, shall pay such award, but shall not be
responsible for any settlement made without its prior written
consent. In the event the use, lease or sale of the Products is
enjoined, IBM may at its own option and expense:
12.1.1 procure the Buyer the right to use, lease or sell such
Products;
12.1.2 replace such Products;
12.1.3 modify such Products; or
12.1.4 remove such Products and refund the aggregate payments
made by the Buyer, less a reasonable sum for use, damage
and obsolescence.
12.2 THIS SECTION STATES IBM'S TOTAL RESPONSIBILITY AND LIABILITY,
AND THE BUYER'S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY PRODUCTS
DELIVERED HEREUNDER OR ANY PART THEREOF. THIS SECTION IS IN LIEU
OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY
AGAINST INFRINGEMENT.
12.3 The Buyer shall, at its own expense, indemnify and hold IBM
harmless from and against any expense or loss resulting from any
infringement of any patent, trademark, copyright, trade secret
or mask work right arising as a result of IBM's compliance with
any of the Buyer's designs specifications or instructions, and
shall defend at its own expense, including attorney's fees, any
suit brought against IBM alleging any such infringement provided
that IBM:
12.3.1 gives the Buyer immediate notice of any suit and permits
the Buyer, through counsel of its choice, to defend such
suit; and
12.3.2 gives the Buyer all needed information, assistance and
authority, at the Buyers expense, necessary for the
Buyer to defend any such suit.
13.0 CONFIDENTIAL INFORMATION
13.1 Except as set forth in Section 13.2, all information exchanged
under this Agreement will be deemed to be non-confidential. If
it becomes necessary to exchange confidential information, the
exchange will be made under a separate written agreement.
13.2 Each party will keep the existence of this Agreement
confidential until the first Unit is shipped by IBM to Buyer and
will keep its contents confidential during the existence of this
Agreement and for a period of three years thereafter and will
not,
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without first obtaining the written consent of the other party,
disclose any portion of this Agreement or any information
contained herein to any third party except as may be required to
enforce this Agreement or by law. In the event such disclosure
is required, the party making such disclosure will provide the
other party sufficient notice for the other party to seek
appropriate protection, in court if necessary. In the event of
disclosure thereafter, the party making the disclosure will keep
such disclosure to a minimum and protect the information so
disclosed by a protective order or the like unless otherwise
agreed by the parties.
14.0 LIMITATION OF REMEDIES
14.1 IBM's entire liability and Buyer's exclusive remedy are set
forth in this Section:
a) In all situations involving defects in materials or
workmanship or failure of Products furnished hereunder
to conform to the warranty, Buyer's remedy is provision
of an appropriate credit, or repair of the Product or
replacement of its parts by IBM. IBM may, at its option,
replace the Product. If, after repeated efforts, IBM is
unable to provide a replacement Product, all as
warranted, Buyer will be entitled to recover actual
direct damages to the limits set forth in this Section.
For any other claim concerning IBM's performance or
nonperformance pursuant to, or in any other way related
to the subject matter of, this Agreement, or any
Purchase Order under this Agreement, Buyer will be
entitled to recover actual direct damages to the limits
set forth in this Section.
b) IBM's liability for actual direct damages for any cause
whatsoever, shall be limited to the applicable price
paid for the specific Units that caused the damages or
that are the subject matter of, or are directly related
to, the cause of action. This limitation will apply,
except as otherwise stated in this Section, regardless
of the form of action, whether in contract or in tort,
including negligence. This limitation will not apply to
Section 12.0 entitled "Intellectual Property Rights
Indemnity." This limitation will not apply to claims by
Buyer for bodily injury or damage to real property or
tangible personal property caused by IBM's negligence.
c) In no event will IBM be liable for any lost profits,
lost savings, incidental damages or other consequential
damages, even if IBM has been advised of the possibility
of such damages.
d) In addition, IBM will not be liable for any claim by
Buyer based on any third-party claim, except as provided
in Section 12.0 entitled "Intellectual Property Rights
Indemnity" and except where the damages are for bodily
injury (including death) and damage to real property and
tangible personal property. In no event will IBM be
liable for any damages caused by Buyer's failure to
perform Buyer's responsibilities.
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e) [***]
f) In addition, IBM has no liability when the Products are used in
conjunction with nuclear materials or other extra-hazardous
activities to the extent such liability is caused by such
activities.
15.0 NOTICES
Notices required to be given under this Agreement will be sent in
accordance with the applicable Attachment.
16.0 GENERAL PROVISIONS
16.1 Neither this Agreement nor any activities hereunder will impair
any right of IBM or Buyer to design, develop, manufacture,
market, service, or otherwise deal in, directly or indirectly,
products or services including those which are competitive with
those offered by IBM or Buyer.
16.2 Buyer is an independent contractor and is not an agent of IBM
for any purpose whatsoever. Buyer will not make any warranties
or representations on IBM's behalf, nor will it assume or create
any such obligations on IBM's behalf.
16.3 The substantive laws of the State of New York govern this
Agreement. [***]
16.4 If any section or subsection of this Agreement is found by
competent judicial authority to be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of any such section or subsection in every other
respect and the remainder of this Agreement shall continue in
effect so long as the amended Agreement still expresses the
intent of the parties. If the intent of the parties cannot be
preserved, this Agreement shall be either renegotiated or
terminated.
16.5 This Agreement may be modified only by a written amendment
signed by persons authorized to so bind Buyer and IBM.
16.6 All obligations and duties which by their nature survive the
expiration or termination of this Agreement shall remain in
effect beyond any expiration or termination.
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16.7 [***]
16.8 Neither party shall be responsible for failure to fulfill its
obligations under this Agreement due to fire, flood, war or
other such cause beyond its control and without its fault or
negligence provided it promptly notifies the other party.
16.9 Neither party shall assign this Agreement or any rights
hereunder without the prior written consent of the other party,
except that IBM's rights to payments under the Agreement are
freely assignable. In the event a party requests the right to
assign this Agreement and the other party rejects such request,
then the requesting party may terminate this Agreement without
further obligation.
16.10 Press releases and other like publicity or advertising which
mentions the other party by name shall be agreed upon by both
parties in writing prior to any release.
16.11 The waiver by either party of an instance of the other party's
noncompliance with any obligation or responsibility herein shall
not be deemed a waiver of subsequent instances or of either
party's remedies for such noncompliance.
16.12 Each party will comply with all applicable federal, state and
local laws, regulations and ordinances including, but not
limited to, the regulations of the U.S. Government relating to
the export or re-export of machines, commodities, software and
technical data insofar as they relate to the activities under
this Agreement. Buyer agrees that machines, commodities,
software and technical data provided under this Agreement are
subject to restrictions under the export control laws and
regulations of the United States of America, including, but not
limited to, the U.S. Export Administration Act and the U.S.
Export Administration Regulations. Buyer hereby gives its
written assurance that neither machines, commodities, software
or technical data provided by IBM under this Agreement, nor the
direct product thereof, is intended to be shipped, directly or
indirectly, to prohibited countries or nationals thereof. Buyer
agrees it is responsible for obtaining required government
documents and approvals to export any machine, commodity,
software or technical data.
16.13 No license, immunity or other right is granted herein to Buyer,
its Resellers or End-Users, whether directly or by implication,
with respect to any patent trademark, copyright, mask work,
trade secret, utility model, know-how, or other intellectual
property rights of IBM.
THE PARTIES ACKNOWLEDGE THAT EACH HAS READ THIS AGREEMENT,
ATTACHMENT 1, AND THE JUST-IN-TIME (JIT) PROGRAM SUPPLEMENT,
UNDERSTANDS THEM, AND AGREES TO BE
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BOUND BY THEIR TERMS AND CONDITIONS. FURTHER, THE PARTIES AGREE
THAT THIS AGREEMENT, ATTACHMENT 1, THE JUST-IN-TIME (JIT)
PROGRAM SUPPLEMENT AND ANY INCORPORATED CONFIDENTIAL DISCLOSURE
AGREEMENTS ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OF
ALL PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER
COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT
MATTER HEREOF.
Agreed to: Agreed to:
INTERNATIONAL BUSINESS WESTERN DIGITAL
MACHINES CORPORATION CORPORATION
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- --------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Manager, MD WW Title: Senior V.P. Worldwide
Contracts & Business Operations
Practices, T. G.
Date: March 2, 2001 Date: 15 February 2001
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[PAGES 15 THROUGH 24 ARE INTENTIONALLY OMITTED. ATTACHMENT 1 AND THE JIT PROGRAM
SUPPLEMENT HAVE BEEN AMENDED AND RESTATED IN THEIR ENTIRETY AND ARE INCLUDED AS
EXHIBIT 10.36.3 TO THE REGISTRANT'S FORM 1O-K FOR THE YEAR ENDED JUNE 28, 2002]
EXHIBIT I
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Participation Agreement
EFFECTIVE DATE OF THIS PARTICIPATION AGREEMENT ("PA"): February 7, 2001.
This PA adopts and incorporates by reference all of the terms and conditions of
the Agreement for Fabrication and Purchase of Semiconductor Products No. 000690
between International Business Machines Corporation and Western Digital
Corporation (the "Base Agreement").
The parties to this PA agree that purchases and sales of Products, as defined
in the Base Agreement, will be conducted in accordance with, and be subject to,
the terms and conditions of this PA, the Base Agreement and any applicable
Attachments and Supplements.
The following terms and conditions amend provisions of the Base Agreement for
purposes of this PA only: [IDENTIFY ANY DIFFERENT TERMS].
[***]
In the event the Base Agreement is terminated, the terms and conditions of the
Base Agreement incorporated by reference herein shall survive such termination
and remain in effect for purposes of this PA only.
ACCEPTED AND AGREED TO: ACCEPTED AND AGREED TO:
By:_________________________________ By:___________________________________
Name:_______________________________ Name:_________________________________
Title:______________________________ Title:________________________________
Date:_______________________________ Date:_________________________________
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