Form of Amendment To Manufacturing Services Agreement

Exhibit 10.35


FORM OF FIRST AMENDMENT TO MANUFACTURING SERVICES AGREEMENT

THIS FIRST AMENDMENT TO MANUFACTURING SERVICES AGREEMENT (this " Amendment" ) is made and entered into as of August , 2005 (the " Effective Date" ), by and between Spansion LLC, a Delaware limited liability company formerly known as FASL LLC (" Spansion" ), and Fujitsu Limited, a corporation organized under the laws of Japan (" Fujitsu" ). Spansion and Fujitsu are hereinafter also referred to as the " Parties" and individually as a " Party ."


RECITALS

WHEREAS, Spansion and Fujitsu have entered into the Manufacturing Services Agreement effective June 30, 2003 (the " Manufacturing Services Agreement" ), pursuant to which Fujitsu provides certain assembly and final test services to Spansion; and

WHEREAS , the Parties have agreed to amend certain provisions of the Manufacturing Services Agreement, upon the terms and subject to the conditions set forth below.

NOW, THEREFORE, in consideration of the mutual covenants and other terms and conditions contained herein, Spansion and Fujitsu agree as follows:


AGREEMENT

1. AMENDMENT OF MANUFACTURING SERVICES AGREEMENT


The Manufacturing Services Agreement is hereby amended as follows (capitalized terms used in this Section 1 without definition have the meaning assigned to such terms in the Manufacturing Services Agreement):

1.1 Addition of Definitions . The following definitions are hereby inserted in Section 1.2 of the Manufacturing Services Agreement in their appropriate alphabetical order:

"' Affiliate' of a Person means any other Person which, directly or indirectly, controls, is controlled by, or is under common control with, such Person. The term " control" (including, with correlative meaning, the terms " controlled by" and " under common control with" ), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. A Person shall be deemed an Affiliate of another Person only so long as such control relationship exists. The Parties acknowledge and agree that Fujitsu is not presently controlled by any other Person. Notwithstanding the foregoing, neither Spansion nor any of its directly or indirectly majority owned subsidiaries shall be deemed to be an Affiliate of Fujitsu."


"' Applicable Law' means, with respect to a Person, any domestic or foreign, national, federal, territorial, state or local constitution, statute, law (including principles of common law), treaty, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, legally binding directive, judgment, decree or other requirement or restriction of any arbitrator or governmental authority applicable to such Person or any of its Affiliates or any of their respective properties, assets, officers, directors, employees, consultants or agents (in connection with such officer' s, director' s, employee' s, consultant' s or agent' s activities on behalf of such Person or any of its Affiliates)."


1

"' Business' means all aspects related to the development, manufacture and sale of semiconductor devices (including single chip or multiple chip products), a substantial function of which is code and/or data storage."

"' Person' means any person or entity, whether an individual, trustee, corporation, partnership, limited partnership, limited liability company, trust, unincorporated organization, business association, firm, joint venture, other legal entity or governmental authority."

"' Tax' or ' Taxes' means all taxes, levies, imposts and fees imposed by any governmental authority (domestic or foreign) of any nature including but not limited to federal, state, local or foreign net income tax, alternative or add-on minimum tax, profits or excess profits tax, franchise tax, gross income, adjusted gross income or gross receipts tax, employment related tax (including employee withholding or employer payroll tax, FICA or FUTA), real or personal property tax or ad valorem tax, sales or use tax, excise tax, stamp tax or duty, any withholding or back up withholding tax, value added tax, severance tax, prohibited transaction tax, premiums tax, occupation tax, together with any interest or any penalty, addition to tax or additional amount imposed by any governmental authority (domestic or foreign) responsible for the imposition of any such tax."


1.2 Revision to Section 1.2.6 . The term " calendar month" in Section 1.2.6 of the Manufacturing Services Agreement is hereby changed to " fiscal month of Spansion," and the clause " based on local time in Japan" is hereby deleted in its entirety.


1.3 Revision to Section 1.3.3 . The term " Entity" in Section 1.3.3 of the Manufacturing Services Agreement is hereby changed to " entity."

1.4 Revision to Section 2 . The term " affiliate" in Section 2 of the Manufacturing Services Agreement is hereby changed to " Affiliate."


1.5 Amendment to Section 3 . Section 3 of the Manufacturing Services Agreement is hereby deleted in its entirety and replaced with the following:

" No later than the end of the second Month of each Fiscal Quarter during the Term, Sp ...