Amended And Restated Non-competition Agreement

Exhibit 10.8


AMENDED AND RESTATED NON-COMPETITION AGREEMENT


**** Confidential treatment has been requested as to certain portions of this agreement. Such omitted confidential information has been designated by asterisks and has been filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended, and the Commission' s rules and regulations promulgated under the Freedom of Information Act, pursuant to a request for confidential treatment.****

Exhibit 10.8


AMENDED AND RESTATED

NON-COMPETITION AGREEMENT


THIS AMENDED AND RESTATED NON-COMPETITION AGREEMENT (this " Agreement" ) is made and entered into as of December 21, 2005, by and among Advanced Micro Devices, Inc., a Delaware corporation (" AMD" ), AMD Investments, Inc., a Delaware corporation (" AMD Investments ," and together with AMD, the " AMD Entities" ), Fujitsu Limited, a corporation organized under the laws of Japan (" Fujitsu," and collectively with the AMD Entities, the " Entities" ), and Spansion Inc., a Delaware corporation (" Spansion" and collectively with the Entities, the " Parties" ).

RECITALS:


A. In connection with the creation of Spansion LLC, the Parties executed a Non-Competition Agreement dated as of June 30, 2003 (the " Effective Date" ).


B. The Parties hereby desire to amend and restate that Non-Competition Agreement.


NOW, THEREFORE , in consideration of the premises, the mutual promises and covenants of the Parties set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby amend and restate that Non-Competition Agreement and agree as follows:

1. Certain Definitions; Interpretation .

(a) In addition to the terms defined elsewhere in this Agreement, the following capitalized terms shall have the following meanings when used herein:


" 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. The Parties acknowledge and agree that neither Fujitsu nor AMD is presently controlled by any other Person, and that Spansion and its subsidiaries shall not be deemed to be (a) Affiliates of the AMD Entities or (b) Affiliates of Fujitsu.


" Aggregate Ownership Interest" has the meaning set forth in Spansion' s Certificate of Incorporation.


" Competing Business" means any business engaged in the development, production, manufacture, marketing, distribution, promotion or sale of Stand-Alone NVM Products in any country in the world in which Spansion conducts its business; provided ,


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however , that (i) the Entities' respective ownership interests in Spansion and the conduct of Spansion' s business, (ii) Fujitsu' s and its Affiliates' development, production, manufacture, marketing, distribution, promotion and/or and sales of Ferro-electric non-volatile memory technology and products and (iii) the performance by AMD and its Affiliates and/or Fujitsu and its Affiliates of their respective obligations under agreements between AMD and/or its Affiliates and Spansion and/or its subsidiaries or between Fujitsu and/or its Affiliates and Spansion and/or its subsidiaries ( provided that any such agreement is not entered into for purposes of circumventing the intent of this Agreement), shall each be deemed not to constitute a Competing Business.


" NVM" means a non-volatile memory device wherein information stored in a memory cell is maintained without power consumption and the write time (including erase time if there is an erase operation prior to a write operation) exceeds the read time allowing the device to function primarily as a reading device.

" 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.

" Stand-Alone NVM Product" means a semiconductor product (including a single chip or a multiple chip or system product) containing NVM dedicated to data storage wherein all circuitry (including logic circuitry) contained therein is solely to accept, store, retrieve or access information or instructions and cannot manipulate such information or execute instructions.


(b) The following rules of interpretation shall apply to this Agreement:


(i) The words " hereof," " herein," " hereunder" and similar words refer to this Agreement as a whole and not to any particular provision of this Agreement. The term " including" is not limited and means " including without limitation."


(ii) Unless otherwise noted, all references to Sections, Schedules and Exhibits herein are to Sections, Schedules and Exhibits of this Agreement. The titles, captions and headings 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.

(iii) Unless otherwise expressly provided herein, (a) references to a Person include its successors and permitted assigns, (b) references to agreements (including this Agreement) and other contractual instruments shall be deemed to include all subsequent amendments, restatements and other modifications thereto or supplements thereof and (c) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such statute or regulation.

2. Competition by AMD Entities and their Affiliates with Spansion . Subject to Section 4(d), during the AMD Non-Competition Term, the AMD Entities hereby covenant and agree not to (and AMD agrees to cause its Affiliates not to), directly or indirectly, engage in a Competing Business. Notwithstanding the foregoing, in the event that (a) a customer of AMD or

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its Affiliates requests the development, production, manufacture and sale or other distribution to it of a specific Stand-Alone NVM Product and (b) Spansion does not agree to engage in such activities, then AMD and its Affiliates may seek Spansion' s consent to engage in such activities without being in breach of the obligations set forth in this Section 2, which consent shall not be unreasonably withheld or delayed, taking into account the customer' s requested response time.

3. Competition by Fujitsu and its Affiliates with Spansion . Subject to Section 5(d), during the Fujitsu Non-Competition Term, Fujitsu hereby covenants and agrees not to (and Fujitsu agrees to cause its Affiliates not to), directly or indirectly, engage in a Competing Business. Notwithstanding the foregoing, in the event that (a) a customer of Fujitsu or its Affiliates requests the development, production, manufacture and sale or other distribution to it of a specific Stand-Alone NVM Product and (b) Spansion does not agree to engage in such activities, then Fujitsu and its Affiliates may seek Spansion' s consent to engage in such activities without being in breach of the obligations set forth in this Section 3, which consent shall not be unreasonably withheld or delayed, taking into account the customer' s requested response time.

4. Divestiture of Competing Business by AMD Entities . During the AMD Non-Competition Term, the AMD Entities hereby covenant and agree that:


(a) If an AMD Entity or its Affiliates (an " AMD Acquiring Party" ) acquires a majority equity or other majority ownership interest of a Person whose principal line of business is not a Competing Business, but which has a division or other operations constituting a Competing Business (any such division or operations, an " AMD Acquired Interest" ), AMD shall (or, if applicable, shall cause AMD Investments or its other applicable Affiliates to) (i) promptly provide Spansion and Fujitsu with written notice of such acquisition (the " AMD Acquisition Notice" ) and (ii) provide Spansion with a right of first offer to acquire the AMD Acquired Interest, such right to last for a period of sixty (60) days following Spansion' s receipt of the AMD Acquisition Notice (the " AMD Offer Period" ). During the AMD Offer Period, AMD shall (or, if applicable, shall cause AMD Investments or its other applicable Affiliates to) (A) provide Spansion with an opportunity to conduct reasonable due diligence on the AMD Acquired Interest and (B) enter into exclusive discussions with Spansion concerning a sale of the AMD Acquired Interest to Spansion. Spansion shall have the right, but not the obligation, to make an offer to purchase all, but not less than all, of the AMD Acquired Interest by providing written notice to AMD (" Spansion/AMD Offer" ) at any time prior to the end of the AMD Offer Period, such written notice to include in reasonable detail the terms on which Spansion proposes to purchase the AMD Acquired Interest.

(b) Any determination as to whether to make a Spansion/AMD Offer, and the terms of such Spansion/AMD Offer, shall be made by the Board of Directors of Spansion. If a Spansion/AMD Offer is made prior to the conclusion of the AMD Offer Period, the AMD Acquiring Party shall have thirty (30) days from its receipt of Sp ...