Amended And Restated Intellectual Property Contribution And Ancillary Matters

Exhibit 10.7


AMENDED AND RESTATED

INTELLECTUAL PROPERTY CONTRIBUTION

AND ANCILLARY MATTERS AGREEMENT

THIS AMENDED AND RESTATED INTELLECTUAL PROPERTY CONTRIBUTION AND ANCILLARY MATTERS AGREEMENT (" Agreement" ) is made and entered into as of December 21, 2005 (" Amendment Date" ) by and among Fujitsu Limited, a Japanese corporation (" Fujitsu" ), Advanced Micro Devices, Inc., a Delaware corporation (" AMD" ), AMD Investments, Inc. (" AMD Investments" ), Spansion Inc., a Delaware corporation (" Spansion" ) and Spansion Technology Inc., a Delaware corporation, a wholly owned subsidiary of Spansion to be successor-in-interest to Spansion LLC (" STI" ). Fujitsu, AMD, AMD Investments, Spansion and STI are herein referred to as the " Parties" and individually as a " Party ." Fujitsu and AMD Investments are herein referred to as the " Contributing Parties" and individually as a " Contributing Party ." Fujitsu and AMD are herein referred to as the " Parents" and individually as a " Parent ."


RECITALS


WHEREAS , in connection with formation of Spansion LLC, a Delaware limited liability company (" LLC" ), certain of the parties hereto entered into that certain Intellectual Property Contribution and Ancillary Matters Agreement (the " IPCAAMA" ), dated as of June 30, 2003 (the " Effective Date" );

WHEREAS , the parties hereto hereby desire to amend and restate the IPCAAMA, including substituting Spansion and STI for LLC as parties hereto;


NOW , THEREFORE , in consideration of the mutual representations, warranties, covenants and other terms and conditions contained herein, the Parties agree as follows:

AGREEMENT


1. DEFINITIONS; INTERPRETATION

1.1 Terms Defined in this Agreement . The following terms when used in this Agreement shall have the following definitions:

1.1.1 " Acquirer Competitive Product" has the meaning set forth in Section 5.3.


1.1.2 " Acquired Party Covered Product" has the meaning set forth in Section 5.3.


1.1.3 " Action" means any action, litigation, arbitration, suit, claim, proceeding, or investigation or review of any nature, civil, criminal, regulatory or otherwise, before any Governmental Authority.

1.1.4 " Affiliate" of any Party means any other Person controlling, controlled by or under common control with such Party, but such other Person shall be

deemed to be an Affiliate only so long as such control exists. For purposes of this Section 1.1.4, " control," with respect to a Person, means beneficial ownership, directly or indirectly, of securities representing forty percent (40%) or more of the power to elect such Person' s board of directors or other managing authority, or in the case of a non-corporate Person, equivalent interests. For purposes of clarification, AMD is an Affiliate of AMD Investments as of both the Effective and the Amendment Date.


1.1.5 " Aggregate Ownership Interest" shall have the meaning set forth in the Certificate of Incorporation.


1.1.6 " Amended and Restated AMD-Spansion Patent Cross-License Agreement" shall mean that Amended and Restated AMD-Spansion Patent Cross-License Agreement, dated as of December 21, 2005, by and between AMD and Spansion.


1.1.7 " Amended and Restated Fujitsu-Spansion Patent Cross-License Agreement" shall mean that Amended and Restated Fujitsu-Spansion Patent Cross-License Agreement, dated as of December 21, 2005, by and between Fujitsu and Spansion.

1.1.8 " AMD" has the meaning set forth in the first paragraph of this Agreement.

1.1.9 " AMD Flash Memory Business" means the research and development, manufacture, marketing, distribution, promotion and sale of Stand-Alone NVM Products (excluding distribution and sales-related activities) by AMD and its Affiliates.


1.1.10 " AMD Investments" has the meaning set forth in the first paragraph of this Agreement.

1.1.11 " Assigned Patent Rights" means the STI Patent Rights and the Spansion Patent Rights.


1.1.12 " Assigned Trademark Rights" means (a) the Trademarks set forth in Schedule 1.1.12 , (b) the registrations of, and applications for, such Trademarks set forth in Schedule 1.1.12 , and the right to apply for and prosecute any of such applications, (c) all goodwill associated with such Trademarks, and (d) all rights and causes of action for past, present and future infringement of the Trademarks set forth in Schedule 1.1.12 .

1.1.13 " Background IP Right" means any Intellectual Property Right which is (a) owned by Fujitsu or any of its Subsidiaries as of the Effective Date or (b) conceived, developed, written, or otherwise created (other than by Seconded Employees) or acquired by Fujitsu or any of its Subsidiaries on or after the Effective Date.


1.1.14 " Coatue" means Coatue Corporation, a Delaware corporation.


1.1.15 " Certificate of Incorporation" means the Certificate of Incorporation of Spansion, as of the Amendment Date.

1.1.16 " Conditional Patent Rights" means rights under one or more of (a) the Patents and applications for Patents set forth in Schedule 1.1.16, (b) any Patents that may issue from the applications for Patents described in subsection (a) above, (c) any divisionals, continuations, continuations-in-part, results of reexamination, substitutions, reissues,

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extensions and renewals of the Patents and applications for Patents described in subsections (a) and (b) above, whether or not in existence as of the Amendment Date, or (d) any foreign counterparts to the Patents and applications for Patents described in this Section 1.1.16, as determined by Fujitsu and STI pursuant to Section 2.4.

1.1.17 " Confidential Information" means all proprietary or nonpublic information and materials of Discloser that (a) are provided to or otherwise obtained by Recipient as described in Section 9.1, and (b) are either (i) marked or otherwise designated as " proprietary" or " confidential" or (ii) provided to or otherwise obtained by Recipient under circumstances reasonably indicating that they constitute confidential and proprietary information of Discloser. Notwithstanding the foregoing, Confidential Information will not include information or materials that: (A) were already known by Recipient, other than under an obligation of confidentiality to Discloser or any other Person, at the time they were provided to or otherwise obtained by Recipient from Discloser hereunder, as evidenced by Recipient' s tangible (including written or electronic) records in existence at such time; (B) were generally available to the public or otherwise part of the public domain at the time they were provided to or otherwise obtained by Recipient hereunder; (C) became generally available to the public or otherwise part of the public domain after they were provided to or otherwise obtained by Recipient hereunder, other than through any act or omission of Recipient in breach of this Agreement; (D) were subsequently lawfully disclosed to Recipient by a Person other than Discloser not subject to any duty of confidentiality with respect thereto; (E) were developed by Recipient without reference to any Confidential Information of Discloser, as evidenced by Recipient' s tangible (including written or electronic) records in existence at such time; or (F) constitute Parent Confidential Information or Spansion Technology.

1.1.18 " Contributed Entities" means (a) with respect to Fujitsu, Fujitsu AMD Semiconductor Limited, a Japanese corporation now named Spansion Japan (" Spansion Japan" ) and Fujitsu Microelectronics (Malaysia) Sdn. Bhd., a company organized under the laws of Malaysia, and (b) with respect to AMD and AMD Investments, Spansion Japan, FASL (Penang) Sdn. Bhd., a company organized under the laws of Malaysia, AMD Holdings (Singapore) Pte. Ltd., a company organized under the laws of Singapore, AMD (Thailand) Limited, a company organized under the laws of Thailand, and Advanced Micro Devices (Suzhou) Limited, a company organized under the laws of China and a wholly-owned Subsidiary of AMD Holdings (Singapore) Pte. Ltd.


1.1.19 " Contributed Entity Other IP Rights" means Other IP Rights that, as of the Effective Date, are owned in whole or in part by any Contributed Entities.


1.1.20 " Contributing Party" and " Contributing Parties" have the respective meanings set forth in the first paragraph of this Agreement.


1.1.21 " Contribution Agreement" means that certain Contribution Agreement, dated June 30, 2003, by and among AMD, AMD Investments, Fujitsu, FMH and LLC.


1.1.22 " Control" (including " Controlled ," " Controlling" and other forms thereof), with respect to a Person, means beneficial ownership, directly or indirectly, of securities representing more than fifty percent (50%) of the power to elect such Person' s board of directors or other managing authority, or in the case of a non-corporate Person, equivalent interests. In no case shall Fujitsu' s Class D shares of Spansion be considered securities entitled to vote for the election of Spansion' s board of directors or other managing authority for purposes of this definition.


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1.1.23 " Copyrights" means all copyrights and all other rights arising under common law, state law, federal law or laws of foreign countries or jurisdictions therein corresponding to works of authorship and other copyrightable works, whether published or unpublished, including rights to prepare, reproduce, perform, display and distribute copyrighted works and copies, compilations and derivative works thereof, and including all Moral Rights.

1.1.24 " Development" means any Intellectual Property Right or Technology conceived, developed, written, or otherwise created by Seconded Employees, whether solely or jointly with others, after the Effective Date and during the applicable Secondment Period (as defined in the Fujitsu Secondment Agreement), expressly excluding Background IP Rights.

1.1.25 " Discloser" has the meaning set forth in Section 9.1.


1.1.26 " Disclosing Parent" has the meaning set forth in Section 9.2.


1.1.27 " Effective Date" has the meaning set forth in the first paragraph of this Agreement.


1.1.28 " Existing Product" of a Person, as of a certain date, means a Licensed Product developed by or for such Person and being made (or have made) and offered for sale by such Person on or prior to such date.


1.1.29 " Flash Memory Business" of a Parent means, as applicable, either the AMD Flash Memory Business or the Fujitsu Flash Memory Business. " Flash Memory Business" of AMD Investments means the AMD Flash Memory Business.

1.1.30 " FMH" means Fujitsu Microelectronics Holding, Inc., a Delaware corporation, a wholly owned subsidiary of Fujitsu.


1.1.31 " Fujitsu" has the meaning set forth in the first paragraph of this Agreement.

1.1.32 " Fujitsu Flash Memory Business" means the research and development, manufacture, marketing, distribution, promotion and sale of Stand-Alone NVM Products (excluding (i) Ferro-electric non-volatile memory technology and products and (ii) distribution and sales-related activities) by Fujitsu and its Affiliates.


1.1.33 " Fujitsu Secondment Agreement" shall mean that Fujitsu Secondment and Transfer Agreement, dated as of June 30, 2003, between Fujitsu and LLC, as amended.


1.1.34 " Governmental Authority" means any foreign, domestic, national, federal, territorial, state or local governmental authority, quasi-governmental authority, instrumentality, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing.


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1.1.35 " Immunized Products" has the meaning set forth in Section 2.3.

1.1.36 " Intellectual Property Rights" means, collectively, (a) Patents, Trade Secrets, Copyrights, Trademarks, mask work rights, industrial design rights, and all other intellectual property rights and proprietary rights, whether arising under common law, state law, federal law or laws of foreign countries or jurisdictions therein, (b) all registrations and applications for registration of any of the rights described in subsection (a) above, and (c) all rights to apply for or register any of the rights described in subsection (a) above.

1.1.37 " Liability" means, with respect to a Person, any liability, indebtedness, expense, guaranty, endorsement or obligation of or by such Person of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person.

1.1.38 " Licensed Parent Software" means the software set forth in Schedule 1.1.38 .


1.1.39 " Licensed Product" has the meaning set forth in the Amended and Restated Fujitsu-Spansion Patent Cross-License Agreement.

1.1.40 " LLC" has the meaning set forth in the recitals of this Agreement.


1.1.41 " Losses" means any and all costs, losses, taxes, Liabilities, damages, lawsuits, deficiencies, claims, demands, and expenses (whether or not arising out of third-party claims), including, without limitation, interest, penalties, costs of mitigation or remediation, reasonable attorneys' fees and all amounts paid in investigation, defense or settlement of any of the foregoing.


1.1.42 " Material Adverse Effect" means any facts and circumstances that would result in a material adverse effect on the business, operations, affairs, financial condition, results of operations, assets, Liabilities, reserves or any other aspect of a Person, taken as a whole, assuming consummation of the transactions contemplated hereby.

1.1.43 " Moral Rights" means any right to claim authorship of a work, any right to object to any distortion or other modification of a work, and any similar right, existing under common law, state law, federal law or laws of foreign countries or jurisdictions therein.

1.1.44 " Non-Competition Agreement" means that certain Amended and Restated Non-Competition Agreement means dated as of December 21, 2005 among Spansion, AMD, AMD Investments and Fujitsu.


1.1.45 " Non-Provider Party ," with respect to any particular Technology or Intellectual Property Right, means any Contributing Party that is not a Provider Party with respect to such Technology or Intellectual Property Right.

1.1.46 " 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.


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1.1.47 " Offering Documents" means the agreements set forth on Schedule 1.1.47 .


1.1.48 " Other IP Rights" means all Intellectual Property Rights, excluding Patents and Trademarks, all registrations and applications for registration of Patents and Trademarks, and all rights to apply for or register Patents and Trademarks.

1.1.49 " Owner Party," with respect to any Shared Other IP Right or Shared Patent, means each of (a) STI, (b) Fujitsu, if Fujitsu is a Provider Party with respect to such Shared Other IP Right or Shared Patent, and (c) AMD, if AMD Investments is a Provider Party with respect to such Shared Other IP Right or Shared Patent.


1.1.50 " Parent" and " Parents" have the respective meanings set forth in the first paragraph of this Agreement.

1.1.51 " Parent Confidential Information" means all proprietary or nonpublic information and materials of Disclosing Parent that (a) are provided to or otherwise obtained by Spansion or any its Subsidiaries (collectively, " Spansion for purposes of this Section 1.1.51), (b) are subsequently provided to or otherwise obtained by Receiving Parent from Spansion, and (c) are either (i) marked or otherwise designated as " proprietary" or " confidential" or (ii) provided to or otherwise obtained by Receiving Parent under circumstances reasonably indicating that they constitute confidential and proprietary information of Disclosing Parent. Notwithstanding the foregoing, Parent Confidential Information will not include information or materials that: (A) were already known by Receiving Parent, other than under an obligation of confidentiality to Disclosing Parent, Spansion or any other Person, at the time they were provided to or otherwise obtained by Receiving Parent from Spansion hereunder, as evidenced by Receiving Parent' s tangible (including written or electronic) records in existence at such time; (B) were generally available to the public or otherwise part of the public domain at the time they were provided to or otherwise obtained by Receiving Parent hereunder; (C) became generally available to the public or otherwise part of the public domain after they were provided to or otherwise obtained by Receiving Parent hereunder, other than through any act or omission of Receiving Parent in breach of this Agreement; (D) were subsequently lawfully disclosed to Receiving Parent by a Person other than Disclosing Parent or Spansion not subject to any duty of confidentiality with respect thereto; (E) were developed by Receiving Parent without reference to any Parent Confidential Information of Disclosing Parent, as evidenced by Receiving Parent' s tangible (including written or electronic) records in existence at such time; or (F) constitute Spansion Technology.


1.1.52 " Party" and " Parties" have the respective meanings set forth in the first paragraph of this Agreement.


1.1.53 " Patents" mean all classes or types of patents (including design patents) and utility models of all countries of the world.

1.1.54 " Pending Product" of a Person, as of a certain date, means a Licensed Product developed by or for such Person that such Person reasonably expects to tapeout within eighteen (18) months of such date (as specified in a then-current written product roadmap as of such date) and that such Person reasonably expects to make (or have made) and sell commencing reasonably promptly thereafter.


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1.1.55 " 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.


1.1.56 " Provider Party" means (a) with respect to any Shared Other IP Right and any Shared Patent that may issue with respect thereto, any Contributing Party that owns, or any of whose Subsidiaries (or Affiliates, where such Contributing Party is AMD Investments) owns, in whole or in part, such Shared Other IP Right immediately prior to the Effective Date, (b) with respect to any Licensed Parent Software, each Parent that owns, or any of whose Subsidiaries owns, in whole or in part, such Licensed Parent Software immediately prior to the Effective Date, (c) with respect to any Third Party Other IP Right, each Parent that has been granted, or any of whose Subsidiaries has been granted, a license by a Third Party of such Third Party Other IP Right in effect as of the Effective Date, and (d) with respect to any Assigned Patent Rights, each of AMD Investments and Fujitsu.


1.1.57 " Receiving Parent" has the meaning set forth in Section 9.2.


1.1.58 " Recipient" has the meaning set forth in Section 9.1.


1.1.59 " Residual Information" means (a) with respect to Confidential Information, information in non-tangible form which may be incidentally retained in the unaided memory of Recipient' s personnel having had access to the Confidential Information of Discloser, and which such personnel cannot identify as Confidential Information of Discloser, and (b) with respect to Parent Confidential Information, information in non-tangible form which may be incidentally retained in the unaided memory of Receiving Parent' s personnel having had access to the Parent Confidential Information of Disclosing Parent, and which such personnel cannot identify as Parent Confidential Information of Disclosing Parent. Such personnel' s memory is " unaided" if the personnel have not intentionally memorized any Confidential Information of Discloser or Parent Confidential Information of Disclosing Parent, as applicable.


1.1.60 " Seconded Employee" shall mean any employee that is a Seconded Employee, Seconded Expatriate Employee, or deemed Seconded Expatriate Employee under the terms of the Fujitsu Secondment Agreement.

1.1.61 " Semiconductor Group" with respect to a Parent, means the internal group or other organization of such Parent having as its primary activities the research and development and making of Semiconductor Products for, and selling of Semiconductor Products to, the semiconductor merchant market. The Fujitsu Semiconductor Group currently consists of (and is limited to) the Electronic Devices Group of Fujitsu. The AMD Semiconductor Group currently consists of AMD in its entirety.

1.1.62 " Semiconductor Product" has the meaning set forth in the Amended and Restated Fujitsu-Spansion Patent Cross-License Agreement.


1.1.63 " Shared Other IP Rights" means all Other IP Rights in the Shared Technology that, immediately prior to the Effective Date, are owned in whole or in part by a


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Parent (and/or any of its Subsidiaries) or AMD Investments (and/or any of its Subsidiaries), but excluding any Contributed Entity Other IP Rights. Notwithstanding the foregoing, Shared Other IP Rights will not include any Assigned Patent Rights or Assigned Trademark Rights.


1.1.64 " Shared Patents" has the meaning set forth in Section 4.1.

1.1.65 " Shared Technology" means all Technology that has been used, is in use or is planned to be used by any Contributed Entity or any other portion of the Flash Memory Business of a Parent, but excluding all Licensed Parent Software and the software set forth in Schedule 1.1.65 .

1.1.66 " Software License Terms" means the terms and conditions set forth in Schedule 1.1.38 .


1.1.67 " Spansion" has the meaning set forth in the first paragraph of this Agreement.

1.1.68 " Spansion Japan" has the meaning set forth in Section 1.1.18.


1.1.69 " Spansion Non-Process Technology" means Spansion Technology other than Spansion Technology that is related to (a) processes for designing and/or making Licensed Products, including equipment used therefor, (b) materials comprising or used in the manufacturing of Licensed Products, or (c) structures for the arrangement or interrelationship of regions, layers, electrodes or contacts of Licensed Products.


1.1.70 " Spansion Patent Rights" means (a) the Patents and applications for Patents set forth in Schedule 1.1.70, (b) any applications for Patents that may be filed on or after the Effective Date based on the invention disclosures set forth in Schedule 1.1.70, if any, (c) any Patents that may issue from the applications for Patents described in subsections (a) and (b) above, (d) any divisionals, continuations, continuations-in-part, results of reexamination, substitutions, reissues, extensions and renewals of the Patents and applications for Patents described in subsections (a), (b) and (c) above, whether or not in existence as of the Effective Date, (e) the right to apply for and prosecute any of the applications for Patents described in subsections (a), (b) and (d) above, (f) all foreign counterparts to the Patents and applications for Patents described in this Section 1.1.70, and (g) all rights and causes of action for past, present and future infringement of Patents set forth in Schedule 1.1.70.


1.1.71 " Spansion Technology" means all Technology in which any Other IP Rights are owned, on or after the Effective Date, in whole or in part by Spansion or any of its Subsidiaries.

1.1.72 " Spansion Technology Delivery Date" has the meaning set forth in Section 5.3.


1.1.73 " 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.


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1.1.74 " STI" has the meaning set forth in the first paragraph of this Agreement.


1.1.75 " STI Patent Rights" means (a) the Patents and applications for Patents set forth in Schedule 1.1.75, (b) any applications for Patents that may be filed on or after the Effective Date based on the invention disclosures set forth in Schedule 1.1.75, if any, (c) any Patents that may issue from the applications for Patents described in subsections (a) and (b) above, (d) any divisionals, continuations, continuations-in-part, results of reexamination, substitutions, reissues, extensions and renewals of the Patents and applications for Patents described in subsections (a), (b) and (c) above, whether or not in existence as of the Effective Date, (e) the right to apply for and prosecute any of the applications for Patents described in subsections (a), (b) and (d) above, (f) all foreign counterparts to the Patents and applications for Patents described in this Section 1.1.75, and (g) all rights and causes of action for past, present and future infringement of Patents set forth in Schedule 1.1.75.

1.1.76 " Subsidiary" of any Party means any other Person that is Controlled by such Party, but such other Person shall be deemed to be a Subsidiary only so long as such Control exists. Notwithstanding the foregoing, the following entities shall not be deemed a Subsidiary of either Fujitsu or AMD: Spansion, any Subsidiaries of Spansion, or any Contributed Entities. For purposes of clarification, as of the Effective Date, the Contributed Entities shall be deemed Subsidiaries of Spansion and, as of the Amendment Date, the Contributed Entities and STI shall be deemed Subsidiaries of Spansion


1.1.77 " Successor Product" means a subsequent or follow-on version of an Acquired Party Covered Product or Acquirer Competitive Product that is based on substantially the same technology (including " process shrinks" of such products and other incremental improvements thereto) as such Acquired Party Covered Product or Acquirer Competitive Product, without the benefit of fundamental advances in design, and that is intended to replace such Acquired Party Covered Product or Acquirer Competitive Product and to be used in the same type of application (e.g., personal computer, mobile phone, etc.).

1.1.78 " Technology" means all computer software (in source code or object code form), documentation, works of authorship, mask works, know-how, data and data bases, formulas, algorithms, processes, inventions and discoveries (whether or not patented), ideas, concepts, techniques, methods, content, technical information, engineering, production and other designs, drawings, schematics, specifications, confidential information, and all other information, technology and materials, tangible or otherwise.

1.1.79 " Termination Agreement" means that certain Termination Agreement entered into as of June 30, 2003 by and among Parent, AMD, and Fujitsu AMD Semiconductor Limited (now Spansion Japan).


1.1.80 " Third Party" means any Person other than the Parties and their Subsidiaries.


1.1.81 " Third Party Other IP Rights" means (a) with respect to AMD and /or AMD Investments, all Other IP Rights in the Shared Technology that are licensed to AMD and/or AMD Investments by one or more Third Parties as of the Amendment Date, and (b) with respect to Fujitsu, all Other IP Rights in the Shared Technology that are licensed to Fujitsu by one or more Third Parties in the Shared Technology listed on Schedule 1.1.81.

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1.1.82 " Trademarks" means all rights in trademarks, service marks, trade names, trade designations, trade dress and domain names and associated goodwill arising under common law, state law, federal law or laws of foreign countries or jurisdictions therein.


1.1.83 " Trade Secrets" means trade secrets and any other rights under any law (including common law, state law, federal law or laws of foreign countries or jurisdictions therein) in know-how and confidential and proprietary information that provides the owner thereof with advantages ...