Schedule 13D

-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, E0ycO0Nh7aErQn7uEB/H37prGmtmc47f0Py7RU4Izy3O0om8OeVB8go0gE5ulN6R FkH/M42LSu0i7fHHX4l80A== 0001193125-05-249538.txt : 20051228 0001193125-05-249538.hdr.sgml : 20051228 20051228133051 ACCESSION NUMBER: 0001193125-05-249538 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20051228 DATE AS OF CHANGE: 20051228 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Spansion Inc. CENTRAL INDEX KEY: 0001322705 STANDARD INDUSTRIAL CLASSIFICATION: SEMICONDUCTORS & RELATED DEVICES [3674] IRS NUMBER: 300177542 STATE OF INCORPORATION: DE FISCAL YEAR END: 1226 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-81237 FILM NUMBER: 051288453 BUSINESS ADDRESS: STREET 1: 915 DEGUIGNE DRIVE STREET 2: P.O. BOX 3453 CITY: SUNNYVALE STATE: CA ZIP: 94088 BUSINESS PHONE: (408) 962-2500 MAIL ADDRESS: STREET 1: 915 DEGUIGNE DRIVE STREET 2: P.O. BOX 3453 CITY: SUNNYVALE STATE: CA ZIP: 94088 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FUJITSU LTD/JP/ CENTRAL INDEX KEY: 0001003811 IRS NUMBER: 000000000 FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: C/O MORRISON & FOERSTER LLP STREET 2: 755 PAGE MILL RD CITY: PALO ALTO STATE: CA ZIP: 94304 BUSINESS PHONE: 8575000000 MAIL ADDRESS: STREET 1: MORRISON & FOERSTER LLP STREET 2: 425 MARKET ST CITY: SAN FRANCISCO STATE: CA ZIP: 94105 SC 13D 1 dsc13d.htm SCHEDULE 13D Schedule 13D

As filed with the Securities and Exchange Commission on December 28, 2005

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENT FILED PURSUANT

TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)

SPANSION INC.

(Name of Issuer)

CLASS A COMMON STOCK, PAR VALUE $0.001 PER SHARE

(Title of Class of Securities)

84649R 10 1

(CUSIP Number )

Bertrand F. Cambou

Chief Executive Officer

915 DeGuigne Drive

P.O. Box 3453

Sunnyvale, California 94088

(408) 962-2500

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

COPIES TO:

David C. Wilson, Esq.

Morrison & Foerster LLP

755 Page Mill Road

Palo Alto, California 94304

(650) 813-5600

December 21, 2005

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box ¨.

Note. Schedules filed in paper format shall include a signed original and five copies of this schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes)

(Continued on following pages)

(Page 1 of 14 Pages)


CUSIP No. 84649R 10 1		13D		Page 2 of 14 Pages


1	NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) Fujitsu Limited
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) x (b) ¨
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)	¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION Japan

NUMBER OF

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

7 SOLE VOTING POWER

32,352,935

8 SHARED VOTING POWER

9 SOLE DISPOSITIVE POWER

32,352,935

10 SHARED DISPOSITIVE POWER


11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 32,352,935
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES	¨
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.2%
14	TYPE OF REPORTING PERSON CO

Item 1. Security and Issuer.

This statement on Schedule 13D relates to the shares of Class A common stock, $0.001 par value per share (each a “Share” and collectively, the “Shares”), of Spansion Inc., a Delaware corporation (the ”Issuer”). The Issuer’s principal executive office is located at 915 DeGuigne Drive, P.O. Box 3453, Sunnyvale, California 94088.

Item 2. Identity and Background.

This statement is filed by Fujitsu Limited, a Japanese corporation (“Fujitsu” or the “Reporting Person”). The principal executive and business office of the Reporting Person is located at Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Fujitsu operates in three main business segments: software and services; computing and communications platforms; and electronic devices.

During the last five years, the Reporting Person has not been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

Information concerning the directors and executive officers of the Reporting Person is set forth on Annex I hereto.

Item 3. Source and Amount of Funds or Other Consideration.

On April 15, 2003, Fujitsu and Advanced Micro Devices, Inc., a Delaware corporation (“AMD”) formed a Delaware limited liability company, named FASL LLC, to integrate Fujitsu’s and AMD’s Flash memory businesses. On June 28, 2004, FASL LLC changed its name to Spansion LLC (“Spansion LLC”). As part of the new joint venture, Fujitsu and AMD each contributed various assets to Spansion LLC and became Spansion LLC’s two members. The contribution of assets included certain intellectual property, equipment and real estate. Fujitsu, through Fujitsu Microelectronics Holding, Inc., a Delaware corporation and wholly-owned subsidiary of Fujitsu (“FMH”), owned 40% of the membership interests of Spansion LLC. AMD, through AMD Investments, Inc., a Delaware corporation and indirect wholly-owned subsidiary of AMD (“AMD Investments”), owned 60% of the membership interests of Spansion LLC.

On April 13, 2005, the Issuer filed a Registration Statement on Form S-1 (Registration No. 333-124041) under the Securities Act of 1933, as amended, for the initial public offering of shares of its Class A common stock (the “IPO”). The Issuer issued 47,264,000 shares of its Class A common stock upon consummation of its IPO on December 21, 2005.

Shortly prior to the pricing of the IPO, Spansion LLC was reorganized into a corporate structure. The reorganization occurred pursuant to the terms of a Contribution Agreement (the

“Contribution Agreement”) dated as of December 14, 2005, among the Issuer, Spansion LLC, AMD, AMD Investments, Fujitsu and FMH, whereby Fujitsu contributed all of the outstanding capital stock of FMH and certain intellectual property to the Issuer in exchange for one share of Class C common stock and 29,019,601 shares of Class D common stock of the Issuer and AMD Investments contributed its 60% ownership interest in Spansion LLC and certain intellectual property to the Issuer in exchange for one share of Class B common stock and 43,529,402 shares of Class A common stock of the Issuer. A copy of the Contribution Agreement is attached hereto as Exhibit 1 and incorporated herein by reference.

Immediately prior to the IPO, the Issuer, AMD, AMD Investments, Spansion LLC, Fujitsu and Spansion Technology, Inc. (formerly FMH) executed an Exchange Agreement, dated as of December 15, 2005, pursuant to which on December 21, 2005, (1) Fujitsu cancelled $40 million of the aggregate principal amount outstanding under Spansion LLC’s promissory note issued to Fujitsu on June 30, 2003, in exchange for 3,333,333 shares of the Issuer’s Class D common stock and (2) AMD cancelled $60 million of the aggregate principal amount outstanding under Spansion LLC’s promissory note issued to AMD on June 30, 2003, in exchange for 5,000,000 shares of Issuer’s Class A common stock. The price per share was $12. A copy of the Exchange Agreement is attached hereto as Exhibit 8 and is incorporated herein by reference.

Item 4. Purpose of Transaction.

The Reporting Person acquired the Shares in contemplation of the IPO in exchange for its membership interests in Spansion LLC, certain intellectual property and the cancellation of certain indebtedness as described in Item 3 above. The Reporting Person intends to review on a continuing basis its ownership in the Shares in light of the factors discussed herein.

(a), (c) Depending on the factors discussed herein, the Reporting Person may, from time to time, retain or sell all or a portion of its holdings of the Shares in the open market or in privately negotiated transactions. The Reporting Person may, subject to the continuing evaluation of the factors discussed herein, acquire from time to time additional Shares in the open market or in privately negotiated transactions or otherwise. Any actions the Reporting Person might undertake will be dependent upon the Reporting Person’s review of numerous factors, including, among other things: the price levels of the Shares; general market and economic conditions; ongoing evaluation of the Issuer’s business, financial condition, operations and prospects; the relative attractiveness of alternative business and investment opportunities; the actions of the management and the board of directors of the Issuer; and other future developments. The Reporting Person is subject to restrictions on transfer of its Shares as described under “Stockholder Agreement” and “Lock-Up Agreement” in Item 6.

(b) Not applicable.

(d) See Item 5(b) below.

(e) Not applicable.

(f) Not applicable.

(g) Not applicable.

(h) Not applicable.

(i) Not applicable.

(j) Not applicable.

Except as set forth above, the Reporting Person has no present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. However, the Reporting Person will continue to review the business of the Issuer and may in the future propose that the Issuer take one or more of such actions.

Item 5. Interest in Securities of the Issuer.

(a) The Issuer’s common stock consists of four classes of stock, Class A common stock, Class B common stock, Class C common stock and Class D common stock. 95,793,402 shares of Class A common stock are issued and outstanding; one share of Class B common stock is issued and outstanding; one share of Class C common stock is issued and outstanding; and 32,352,934 shares of Class D common stock are issued and outstanding.

The Reporting Person beneficially owns 32,352,934 shares of the Issuer’s Class D common stock and one share of the Issuer’s Class C common stock. The shares of Class D common stock are convertible into Shares upon the earlier of December 13, 2006 and the date the Issuer’s board of directors elects to cause the Class D to convert following a determination that such conversion is in the Issuer’s best interests. In addition, AMD, AMD Investments and AMD (U.S.) Holdings, Inc., a Delaware corporation and wholly owned subsidiary of AMD (“AMD US Holdings”), which comprises a “group” with the Reporting Person with respect to matters under the Amended and Restated Stockholders Agreement described in Item 6 below, owns one share of the Issuer’s Class B Common Stock and 48,529,402 shares of the Issuer’s Class A common stock. AMD, AMD Investments and AMD US Holdings beneficially own approximately 37.9% of the Issuer’s total outstanding common stock, 51% of the Issuer’s Class A Common Stock and 100% of the Issuer’s outstanding Class B common stock.

The Reporting Person beneficially owns approximately 25.2% of the Issuer’s total outstanding common stock, 100% of the Issuer’s Class C common stock and 100% of the Issuer’s outstanding Class D common stock.

(b) Holders of all classes of the Issuer’s common stock are entitled to one vote per share on all matters to be voted on by stockholders, except that the Issuer’s Class D common stock has no voting rights with respect to the election of directors. Holders of the Issuer’s Class A common stock have the right to elect four directors, the holder of the Issuer’s Class B common stock has the right to elect two directors and the holder of the Issuer’s Class C common stock has the right to elect one director.

The Reporting Person has sole voting and dispositive power over the Issuer’s Class C common stock, which entitles the Reporting Person to the right to elect one director of the Issuer.

The one share of Class C common stock will convert automatically into one share of Class A common stock in the event that (i) Fujitsu’s aggregate ownership interest in the Issuer falls below ten percent of the outstanding shares of its capital stock, as calculated on an as-converted to common stock basis or (ii) Fujitsu transfers its share of Class C common stock to any person other than a Fujitsu affiliate. The Reporting Person also has sole voting and dispositive power over its 32,352,934 shares of the Issuer’s Class D common stock. AMD, AMD Investments and AMD US Holdings have sole voting and dispositive power over the Issuer’s Class B common stock, which entitles them to the right initially to elect two directors of the Issuer. Because AMD, AMD Investments and AMD US Holdings own approximately 51% of the Issuer’s Class A common stock, AMD has the right to elect four additional directors of the Issuer, although as described below in Item 6 under “Side Letter Agreement,” AMD has agreed for the period of time prior to the conversion of the Issuer’s Class D common stock into Class A common stock, to vote its shares of Class A common stock in the same manner and percentage as the other holders of Class A common stock with respect to the election of directors by holders of shares of Class A common stock. The one share of Class B common stock will convert automatically into one share of Class A common stock in the event that (i) AMD’s aggregate ownership interest in the Issuer falls below ten percent of the outstanding shares of its capital stock, as calculated on an as-converted to common stock basis, or (ii) AMD transfers its shares of Class B common stock to any person other than an AMD affiliate.

(d) Not applicable.

(e) Not applicable.

Item 6. Contracts, Arrangements, Understandings, or Relationships With Respect to Securities of the Issuer.

Amended and Restated Stockholders Agreement

Fujitsu entered into an Amended and Restated Stockholders Agreement as of December 21, 2005, with AMD and the Issuer (the “Stockholders Agreement”), which imposes certain restrictions and obligations on Fujitsu and AMD and their respective shares of the Issuer’s common stock and provides for certain matters pertaining to the Issuer’s management and governance. Pursuant to the Stockholders Agreement, Fujitsu and AMD agree to vote all shares of common stock held by them or their affiliates so as to cause:

•

after the conversion of the Class D common stock, the election of each Class A director proposed for election by the Nominating Committee of the Issuer’s Board;

•

for so long as each of Fujitsu and AMD, or their respective affiliates, own at least 15% of the Issuer’s capital stock, the election of the Issuer’s Chairman of the Board:

•

to be the Issuer’s Class C director, subject to approval of a majority of the Issuer’s Class B directors, until the Issuer’s 2007 annual stockholders meeting, provided, however, that until the Issuer’s 2007 annual stockholder meeting (but not thereafter) the holder of Class C Common Stock may, at its discretion select any Class B director, instead of the Class C Director, as the Chairman of the Board;

•

from the Issuer’s Class B directors, subject to approval of the Issuer’s Class C director, from the Issuer’s 2007 annual stockholders meeting until the Issuer’s 2010 annual stockholders meeting; and

•

from either the Issuer’s Class B directors or Class C director, with the right to elect rotating every three years.

Pursuant to the Stockholders Agreement, the Issuer agrees to allow Fujitsu or AMD, as the case may be, to have one representative attend the Issuer’s board meetings as a non-voting participant for so long as such stockholder owns at least five percent of the Issuer’s capital stock, on an as converted to common stock basis.

The Stockholders Agreement also provides that neither stockholder can transfer any shares, except to majority-owned subsidiaries, until the earlier of one year from the date of the Issuer’s initial public offering or the conversion of the Class D common stock. In addition, neither stockholder can transfer shares in an amount equal to or greater than one percent of the then outstanding common stock to any entity whose principal business competes with the Issuer, without first obtaining the consent of the non-transferring stockholder, such consent not to be unreasonably withheld after June 30, 2007.

Pursuant to the Stockholders Agreement, the Issuer granted Fujitsu and AMD the right to request the Issuer to register all or any part of their shares of Class A common stock under the Securities Act of 1933. In addition, subject to specific limitations, these stockholders have rights to request that their shares be included in any registration of the Issuer’s common stock that the Issuer initiates.

With the exception of board observer rights and registration rights, the Stockholders Agreement will terminate when each party’s aggregate ownership interest in the Issuer falls below ten percent. A copy of the Stockholders Agreement is attached hereto as Exhibit 2 and incorporated herein by reference.

Amended and Restated Certificate of Incorporation

The Issuer’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) provides for division of the Issuer’s board of directors into three classes as nearly equal in size as possible with staggered three-year terms. Holders of the Issuer’s Class A common stock have the voting power to elect four directors. The holder of the Issuer’s Class B common stock, AMD Investments, has the voting power to elect two directors, provided its aggregate ownership interest in the Issuer is at least 35%, and has the voting power to elect one director if its aggregate ownership interest in the Issuer is less than 35% but is at least ten percent. The holder of the Issuer’s Class C common stock, Fujitsu, has the voting power to elect one director, provided its aggregate ownership interest in the Issuer is at least ten percent. Holders of the Issuer’s Class D common stock have no voting power to elect directors.

Any vacancy of a Class B or Class C director may be filled only by the affirmative vote of the remaining Class B or Class C directors even if less than a quorum of the board, or by a sole remaining Class B or Class C director, or if no Class B or Class C director remains, by the holder of the Class B or Class C common stock, voting separately as a class. However, at the time that there occurs a reduction in the number of Class B or Class C directors eligible to serve on the board of directors, then upon the affirmative vote of the majority of directors, any such vacancies may be filled with that number of additional directors elected at the direction of the Class A common stock needed to maintain seven directors serving on the board. Otherwise, any vacancy on the Issuer’s board of directors, including a vacancy resulting from an enlargement of the Issuer’s board of directors, may be filled only by the affirmative vote of a majority of the directors then in office. A copy of the Issuer’s Certificate of Incorporation is attached hereto as Exhibit 3 and incorporated herein by reference.

Amended and Restated Bylaws

The Issuer’s Amended and Restated Bylaws (the “Bylaws”) provide that for so long as Fujitsu and AMD maintain specified ownership levels in the Issuer’s common stock, the Issuer will not take certain actions specified in its Bylaws without the prior consent of Fujitsu and AMD. These consent rights include, among other things:

•

Joint Ventures and Strategic Alliances. For so long as Fujitsu’s or AMD’s aggregate ownership interest is at least 22.5%, the Issuer shall not enter into any joint venture, strategic alliance or similar arrangement:

•

with an integrated electronics manufacturer having the majority of its assets in Japan and annual semiconductor revenue in excess of one hundred billion yen;

•

prior to June 30, 2007, relating to manufacturing, memory product design or CMOS product development that involve actual or potential contribution of cash or assets by the Issuer to such joint venture or to a third party exceeding $50 million in any fiscal year or $250 million in the aggregate over the life of the joint venture or arrangement, excluding arrangements for providing foundry services with entities that derive more than 75% of their revenue from foundry services or arrangements for the assembly, pack, mark and test of semiconductor devices; or

•

relating to activities unrelated to manufacturing, memory product design or CMOS process development that involve the actual or potential contribution of cash or assets by the Issuer exceeding $200 million in any fiscal year or $1 billion in the aggregate over the life of the joint venture or arrangement.

•

Conduct New Unrelated Business. For so long as Fujitsu’s or AMD’s aggregate ownership interest is at least 20%, the Issuer shall not engage in or undertake any material activity unrelated to the Issuer’s current Flash memory business.

•

Amendment of Subsidiary Charter Documents. For so long as Fujitsu’s or AMD’s aggregate ownership interest is at least 15%, the Issuer shall not amend the charter documents of any of the Issuer’s subsidiaries if such amendment would adversely and disproportionately impact either Fujitsu or AMD.

•

Amendment of Certificate of Incorporation and Bylaws Provisions. For so long as Fujitsu’s or AMD’s aggregate ownership interest is at least ten percent, the Issuer shall not amend its Certificate of Incorporation or Bylaws.

•

Facility Closings. For so long as Fujitsu or AMD owns shares of the Issuer’s common stock, the Issuer shall not shut down operations at JV3 (as defined in the Bylaws) or any facilities of the non-manufacturing organization of the Issuer’s wholly-owned subsidiary, Spansion Japan Limited (“Spansion Japan”), before April 1, 2007, or shut down operations at JV1 or JV2 (as defined in the Bylaws) before April 1, 2007 without giving AMD and Fujitsu six months advance notice or shut down operations at the Issuer’s assembly and test facility in Kuala Lumpur, Malaysia before April 1, 2007 without giving Fujitsu and AMD three months advance notice.

•

Headcount Reductions. For so long as Fujitsu or AMD owns shares of the Issuer’s common stock, the Issuer shall not reduce headcount at JV1, JV2 or JV3 by more than ten percent prior to April 1, 2007 or reduce headcount at any facilities of the non-manufacturing organization of Spansion Japan by more than 15% prior to April 1, 2007.

A copy of the Issuer’s Bylaws is attached hereto as Exhibit 4 and incorporated herein by reference.

Non-Competition Agreement

Fujitsu entered into a Non-Competition Agreement on as of December 21, 2005, with AMD and the Issuer. Pursuant to the Non-Competition Agreement, Fujitsu agrees not to directly or indirectly engage in a business that manufactures or supplies standalone semiconductor devices (including single chip, multiple chip or system devices) containing only Flash memory, which is the business in which the Issuer primarily competes. Fujitsu agrees that if it acquires a business that has a division or other operations that manufactures or supplies standalone semiconductor devices (including single chip, multiple chip or system devices) containing only Flash memory, Fujitsu will provide the Issuer with a right of first offer to acquire the competing division or operations. Fujitsu is required to use its commercially reasonable efforts to divest the competing division or operations if the Issuer does not purchase them. Furthermore, Fujitsu also agrees not to solicit the Issuer’s employees without the Issuer’s prior written consent. These non-competition obligations of Fujitsu will last until the earlier of (i) the dissolution of the Issuer, and (ii) two years after the date on which Fujitsu’s ownership interest in the Issuer is less than or equal to five percent. A copy of the Non-Competition Agreement is attached hereto as Exhibit 5 and incorporated herein by reference.

Lock-Up Agreement

Fujitsu has entered into a Lock-Up Agreement with Citigroup Global Markets Inc. and Credit Suisse First Boston LLC (together, the “Underwriters”), as representatives of the several underwriters for the Issuer’s initial public offering, for a period of 180 days from December 15, 2005. Pursuant to the Lock-Up Agreement, Fujitsu will not, without the prior written consent of the Underwriters, dispose of or hedge any shares of the Issuer’s common stock or any securities convertible into or exchangeable for the Issuer’s common stock. The Underwriters in their sole discretion may release any of the securities subject to Fujitsu’s Lock-Up Agreement at any time without notice. A copy of the Lock-Up Agreement is attached hereto as Exhibit 6 and incorporated herein by reference.

Side Letter Agreement

AMD is party to a Side Letter with the Issuer, dated November 21, 2005, which provides that prior to the conversion of the Issuer’s Class D common stock into Class A common stock, AMD will vote its shares of the Issuer’s Class A common stock in the same manner and percentage as the other holders of Class A common stock with respect to the election of directors by holders of shares of Class A common stock. A copy of the Side Letter is attached hereto as Exhibit 7 and incorporated herein by reference.

12.75 % Senior Subordinated Unsecured Notes

On December 21, 2005, Spansion LLC issued to AMD $175,000,000 aggregate principal amount of its 12.75% Senior Subordinated Notes due 2016 pursuant to a Purchase Agreement, which is filed as Exhibit 9 and incorporated herein by reference. The terms and conditions of the senior subordinated notes and related matters are set forth in an indenture, dated as of December 21, 2005, by and between Spansion LLC and Wells Fargo Bank, N.A., as trustee, which is filed as Exhibit 10 and incorporated herein by reference. A specimen of Spansion LLC’s 12.75% Senior Note due 2016 is filed as Exhibit 11 and is incorporated herein by reference.

Except as described above, the Reporting Person does not have any contracts, arrangements, understandings or relationships with any other person with respect to any securities of the Issuer (including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of any such securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss or the giving or withholding of proxies).

See also Item 3 above.

Item 7. Material to be Filed as Exhibits.


Exhibit 1		Contribution Agreement, dated as of December 13, 2005, among Advanced Micro Devices, Inc., Fujitsu Limited, AMD Investments, Inc., Fujitsu Microelectronics Holding, Inc., Spansion LLC and Spansion Inc., which is incorporated by reference to Exhibit 10.1 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.


Exhibit 2		Amended and Restated Stockholders Agreement of Spansion, Inc., dated as of December 21, 2005, among Advanced Micro Devices, Inc., Fujitsu Limited, AMD Investments, Inc. and Spansion Inc., which is incorporated by reference to Exhibit 10.3 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 3		Amended and Restated Certificate of Incorporation of Spansion Inc., which is incorporated by reference to Exhibit 3.1 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 4		Amended and Restated Bylaws of Spansion Inc., which is incorporated by reference to Exhibit 3.2 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 5		Amended and Restated Non-Competition Agreement, dated as of December 21, 2005, among Advanced Micro Devices, Inc., AMD Investments, Inc., Fujitsu Limited and Spansion Inc., which is incorporated by reference to Exhibit 10.13 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 6		[Reserved]

Exhibit 7		Lock-Up Agreement, dated as of December 14, 2005, among Fujitsu Limited, Citigroup Global Markets Inc. and Credit Suisse First Boston LLC, as representatives of the several underwriters.

Exhibit 8		Letter Agreement, dated December 21, 2005, between Advanced Micro Devices, Inc. and Spansion Inc.

Exhibit 9		Exchange Agreement, dated as of December 15, 2005, among Advanced Micro devices, Inc., Fujitsu Limited, AMD Investments, Inc., Spansion Technology Inc., Spansion LLC and Spansion Inc., which is incorporated by reference to Exhibit 10.2 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 10		Purchase Agreement, dated as of December 21, 2005, between Spansion LLC and Advanced Micro Devices, Inc.

Exhibit 11		Indenture, dated as of December 21, 2005, between Spansion LLC, Spansion Inc., Spansion Technology Inc. and Wells Fargo, N.A., as trustee, governing the 12.75% Senior Notes Due 2016, which is incorporated by reference to Exhibit 4.3 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 12		Specimen of Spansion LLC’s 12.75% Senior Subordinated Note due 2016, which is incorporated by reference to Exhibit 4.4 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.


Date: December 28, 2005	FUJITSU LIMITED

	By:	/S/ KOICHI ISHIZAKA
	Name:	Koichi Ishizaka
	Title:	Group Executive Vice President

Exhibit Index


Exhibit 1		Contribution Agreement, dated as of December 13, 2005, among Advanced Micro Devices, Inc., Fujitsu Limited, AMD Investments, Inc., Fujitsu Microelectronics Holding, Inc., Spansion LLC and Spansion Inc., which is incorporated by reference to Exhibit 10.1 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 2		Amended and Restated Stockholders Agreement of Spansion, Inc., dated as of December 21, 2005, among Advanced Micro Devices, Inc., Fujitsu Limited, AMD Investments, Inc. and Spansion Inc., which is incorporated by reference to Exhibit 10.3 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 3		Amended and Restated Certificate of Incorporation of Spansion Inc., which is incorporated by reference to Exhibit 3.1 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 4		Amended and Restated Bylaws of Spansion Inc., which is incorporated by reference to Exhibit 3.2 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 5		Amended and Restated Non-Competition Agreement, dated as of December 21, 2005, among Advanced Micro Devices, Inc., AMD Investments, Inc., Fujitsu Limited and Spansion Inc., which is incorporated by reference to Exhibit 10.13 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 6		[Reserved]

Exhibit 7		Lock-Up Agreement, dated as of December 14, 2005, among Fujitsu Limited, Citigroup Global Markets Inc. and Credit Suisse First Boston LLC, as representatives of the several underwriters.

Exhibit 8		Letter Agreement, dated December 21, 2005, between Advanced Micro Devices, Inc. and Spansion Inc.

Exhibit 9		Exchange Agreement, dated as of December 15, 2005, among Advanced Micro devices, Inc., Fujitsu Limited, AMD Investments, Inc., Spansion Technology Inc., Spansion LLC and Spansion Inc., which is incorporated by reference to Exhibit 10.2 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 10		Purchase Agreement, dated as of December 21, 2005, between Spansion LLC and Advanced Micro Devices, Inc.

Exhibit 11		Indenture, dated as of December 21, 2005, between Spansion LLC, Spansion Inc., Spansion Technology Inc. and Wells Fargo, N.A., as trustee, governing the 12.75% Senior Notes Due 2016, which is incorporated by reference to Exhibit 4.3 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Exhibit 12		Specimen of Spansion LLC’s 12.75% Senior Subordinated Note due 2016, which is incorporated by reference to Exhibit 4.4 to Spansion Inc.’s Report on Form 8-K filed with the SEC on December 21, 2005.

Annex I

Name, Principal Occupation and Business Address of Each Executive Officer and Director of Fujitsu Limited

Naoyuki Akikusa, Chairman of the Board and Representative Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Hiroaki Kurokawa, President and Representative Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Akira Takashima, Vice Chairman and Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Masamichi Ogura, Corporate Executive Vice President and Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Toshihiko Ono, Corporate Executive Vice President and Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Chiaki Ito, Corporate Executive Vice President and Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Michiyoshi Mazuka, Corporate Executive Vice President and Director, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

Kunihiko Sawa, Director, Fujitsu Limited, President and Representative Director, Fuji Electric Holdings Co., Ltd., Gate City Ohsaki, East Tower, 11-2, Osaki 1-Chome, Shinagawa-ku, Tokyo 141-0032, Japan.

Hiroshi Oura, Director, Fujitsu Limited, Director and Senior Executive Advisor, Advantest Corporation, Shin-Marunouchi Center Building, 6-2, Marunouchi 1-Chome, Chiyoda-ku, Tokyo 100-0005, Japan.

Ikujiro Nonaka, Director, Fujitsu Limited, Professor, Hitotsubashi University Graduate School of International Corporate Strategy, Fujitsu Limited, Shiodome City Center, 1-5-2 Higashi-Shimbashi, Minato-ku, Tokyo 105-7123, Japan.

All of the foregoing officers and directors of Fujitsu Limited are citizens of Japan.

During the last five years, none of the foregoing officers and directors of Fujitsu Limited has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

EX-7 2 dex7.htm LOCK-UP AGREEMENT Lock-up Agreement

Exhibit 7

Spansion Inc.

Public Offering of Class A Common Stock

December 14, 2005

Citigroup Global Markets Inc.

Credit Suisse First Boston LLC

J.P. Morgan Securities Inc.

Merrill Lynch, Pierce, Fenner & Smith Incorporated

Morgan Stanley & Co. Incorporated

Deutsche Bank Securities Inc.

UBS Securities LLC

Dresdner Kleinwort Wasserstein Securities LLC

As Representatives of the several Underwriters,

c/o	Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

and

c/o	Credit Suisse First Boston LLC

11 Madison Avenue

New York, New York 10013

Ladies and Gentlemen:

This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”) between Spansion Inc., a Delaware corporation (the “Company”), and each of you as representatives (the “Representatives”) of a group of Underwriters named therein (the “Underwriters”), relating to an underwritten public offering (the “Offering”) of Class A Common Stock, $0.001 par value (the “Common Stock”), of the Company.

In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of each of Citigroup Global Markets Inc. and Credit Suisse First Boston LLC, offer, sell, contract to sell, pledge or otherwise dispose of, or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of

capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, during the period commencing on the date hereof and ending 180 days after the date of the Underwriting Agreement (the “Restricted Period”). For the purposes of this letter, officers and members of the Company’s board of directors shall not be deemed an affiliate of Advanced Micro Devices, Inc. (“AMD”), Fujitsu Limited (“Fujitsu”), the Company or any of their respective subsidiaries.

Notwithstanding the foregoing, the undersigned may transfer shares of Common Stock (or any securities convertible into, exercisable for, or exchangeable for Common Stock) (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree to be bound by the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the undersigned or any person related to the undersigned by blood, marriage or adoption, but no more than first cousin, provided that the trustee of the trust agrees to be bound by the restrictions set forth herein, and provided further that any such transfer shall not involve a disposition for value, (iii) to any third party granted an interest in the undersigned’s will or under the laws of descent, provided that the donee agrees to be bound in writing by the restrictions set forth herein, (iv) in transactions relating to shares of Common Stock acquired by the undersigned in open market transactions after the completion of the Offering or (v) if the undersigned is a corporation, business trust, association, limited liability company, partnership, limited liability partnership or other entity (individually, an “Entity”), the undersigned may transfer (including by way of transfers in accordance with Sections 3.2(a), (b) and (c) of the Form of Stockholders Agreement of Spansion Inc., among AMD, Fujitsu, AMD Investments, Inc. and the Company filed with the Securities and Exchange Commission on October 21, 2005) the capital stock of the Company to any Entity which is directly or indirectly controlled by, or is under common control, with the undersigned, provided that it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such capital stock subject to the provisions of this lock-up agreement and there shall be no further transfer of such capital stock except in accordance with this lock-up agreement, and provided further that any such transfer shall not involve a disposition for value. Notwithstanding the foregoing sentence, a transfer, sale or distribution pursuant to (i), (ii), (iii) or (v) above shall not be permitted without the consent of each of Citigroup Global Markets Inc. and Credit Suisse First Boston LLC if such transfer, sale or distribution shall require, and no party shall voluntarily make, a filing under the Securities Exchange Act of 1934, as amended.

If (1) during the last 17 days of the Restricted Period the Company issues an earnings release or material news or a material event relating to the Company occurs or (2) prior to the expiration of the Restricted Period the Company announces that it will release earnings results during the 16-day period beginning on the last day of the Restricted Period, unless otherwise waived by each of Citigroup Global Markets Inc. and Credit Suisse First Boston LLC in its sole discretion, then the foregoing restrictions shall continue to apply until the expiration of the 18-day period beginning on the issuance of the earnings release or the occurrence of the material news or material event.

The undersigned hereby acknowledges and agrees that written notice of any extension of the Restricted Period pursuant to the previous paragraph will be delivered by the Representatives to the Company (in accordance with the Underwriting Agreement) and that any such notice

properly delivered will be deemed to have been given to, and received by, the undersigned. The undersigned further agrees that, prior to engaging in any transaction or taking any other action that is subject to the terms of this lock-up agreement during the period from the date of this lock-up agreement to and including the 34th day following the expiration of the initial Restricted Period, it will give notice thereof to the Company and will not consummate such transaction or take any such action unless it has received written confirmation from the Company that the Restricted Period (as may have been extended pursuant to the previous paragraph) has expired.

[Remainder of page intentionally left blank]

If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement) or if either AMD or Fujitsu provides written notice to Citigroup Global Markets Inc. and Credit Suisse First Boston LLC that the Company will not be proceeding with the Offering, the agreement set forth above shall be terminated. In addition, the agreement set forth above shall immediately terminate upon (i) the failure of AMD or AMD Investments Inc. to execute a letter agreement substantially similar to that hereto (the “AMD Lock-up”) prior to the date of the Underwriting Agreement or (ii) the termination of the AMD Lock-up. Upon the amendment of any material term of the AMD Lock-up or any waiver by the Representatives of any of their rights thereunder, this letter agreement shall immediately be amended or the rights hereunder waived, as the case may be, to the same extent as the AMD Lock-up. The Representatives shall notify the undersigned promptly of any termination, amendment or waiver of any provision of the AMD Lock-up.


Yours very truly,

Fujitsu Limited

By:		/s/ HIROAKI KUROKAWA
Name:		Hiroaki Kurokawa
Title:		President and Representative Director

EX-8 3 dex8.htm LETTER AGREEMENT Letter Agreement

Exhibit 8

Advanced Micro Devices, Inc.

One AMD Place

Sunnyvale, CA 94088

December 21, 2005

Spansion Inc.

915 DeGuigne Drive

Sunnyvale, CA 94088

Ladies/Gentlemen:

Following the initial public offering of the Class A Common Stock of Spansion Inc. (“Spansion”), Advanced Micro Devices, Inc. (“AMD”) will indirectly own a majority of the shares of the Class A Common Stock prior to the conversion of the Class D Common Stock of Spansion Inc. Prior to such conversion, AMD hereby agrees, with respect to the election of directors by holders of shares of Class A Common Stock, to vote its shares of Spansion Class A Common Stock (or cause such shares to be voted) in the same manner and percentage as the other holders of Class A Common Stock vote for the Class A directors up for election to the Spansion board of directors.


Very truly yours,

Advanced Micro Devices, Inc.

By:		/s/ Hollis M. O’Brien
Name:		Hollis M. O’Brien
Title:		Corporate Vice President and Secretary:

Acknowledged and Accepted

this 21st day of December 2005

Spansion Inc.


By:		/s/ Laurie Webb
Name:		Laurie Webb
Title:		Vice President

EX-10 4 dex10.htm PURCHASE AGREEMENT Purchase Agreement

Exhibit 10

PURCHASE AGREEMENT

This Purchase Agreement (the “Agreement”) dated as of December 21, 2005, is entered into by and among Spansion LLC, a Delaware limited liability company (“Spansion”), and Advanced Micro Device, Inc., a Delaware corporation (the “Purchaser”).

RECITALS

WHEREAS, Spansion wishes to invest in Spansion’s 12.75% Senior Subordinated Unsecured Notes due 2016 on the terms and subject to the conditions set forth herein, and Spansion is willing to agree to such terms and conditions;

NOW, THEREFORE, IT IS AGREED THAT:

1. The Notes.

(a) Issuance of Notes. On the terms and subject to the conditions set forth herein, on the date hereof, Spansion shall issue and sell to the Purchaser, and the Purchaser shall purchase from Spansion, $175,000,000 aggregate principal amount of 12.75% Senior Subordinated Unsecured Notes due 2016 (the “Notes”). The initial issuance of Notes shall be in an aggregate principal amount of $175,000,000 and shall be purchased by the Purchaser on the date hereof (the “Closing”) subject to the conditions set forth herein for an aggregate purchase price of $158,949,000 (the “Purchase Price”).

(b) Closing; Delivery. At the Closing, Spansion shall deliver to the Purchaser the Notes to be purchased by the Purchaser in exchange for payment of the Purchase Price in the form of check or wire transfer of immediately available funds.

2. Representations and Warranties of Spansion. Spansion hereby represents and warrants to the Purchaser that:

(a) Organization and Standing; Subsidiaries. Spansion is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware and has all requisite power and authority to carry on its business as currently conducted.

(b) Corporate Power; Binding Obligations. Spansion has all requisite legal power to execute and deliver this Agreement. This Agreement is a valid and binding obligation of Spansion, enforceable in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, moratorium and other laws of general application affecting the enforcement of creditors’ rights and by general principles of equity.

(c) Authorization. All corporate and legal action on the part of Spansion needed for Spansion to issue the Notes and to perform its obligations hereunder and under the Indenture have been taken.

(d) Compliance with Other Instruments. Spansion’s execution, delivery and performance of it obligations under this Agreement and the Indenture and Spansion’s issuance and sale of the Notes will not, with or without the passage of time or giving of notice, result in any violation or default of or acceleration of performance of obligations due under, or creation of a lien under any term of, (i) its limited liability company agreement, (ii) any provision of any mortgage, indenture, agreement, instrument or contract to which it is party or by which it is bound or (iii) any judgment, decree, order, writ or, to its knowledge, any statute, rule or regulation applicable to Spansion.

(e) Government Consent. No consent, approval, order or authorization of, or designation, registration, declaration or filing with, any federal, state or other governmental authority on Spansion’s part is required in connection with the valid execution and delivery of this Agreement or the offer, sale or issuance of the Notes, except for any notices of sales required to be filed with the SEC under Regulation D of the Securities Act of 1933, as amended (the “Securities Act”).

(f) Offering. In reliance on the Purchaser’ representations and warranties in Section 3, the offer, sale and issuance of the Notes will not result in a violation of the requirements of Section 5 of the Securities Act or the qualification or registration requirements of applicable blue sky laws as such laws exist as of the Closing.

3. Purchaser Representations and Warranties. The Purchaser represents and warrants to Spansion as of the Closing that:

(a) Interests Not Registered. The Purchaser understands that Spansion’s offer and its sale to the Purchaser of the Notes have not been registered under the Securities Act, or registered or qualified under state securities laws, on the ground, among others, that the Notes are being offered and sold in a transaction that does not involve any public offering within the meaning of Section 4(2) of the Securities Act and Rule 506 of Regulation D thereunder.

(b) Accredited Investor. The Purchaser is an “accredited investor” as that term is defined under Regulation D promulgated under Securities Act.

(c) Interest Acquired for Own Account. The Purchaser is acquiring the Notes with the Purchaser’s own funds and for the Purchaser’s own account.

(d) Authority. The Purchaser is duly authorized to enter into this Agreement. This Agreement constitutes a legal, valid and binding agreement of the Purchaser enforceable against the Purchaser in accordance with its terms, except as the same may be limited by bankruptcy, insolvency, moratorium and other laws of general application affecting the enforcement of creditors’ rights and by principles of equity.

4. Closing Conditions. Each party’s obligation to consummate the purchase and sale of the Notes in connection with the Closing is subject to the fulfillment of the following conditions:

(a) Representations and Warranties. Each party’s representations and warranties in Sections 2 and 3 hereof shall be true and correct in all material respects.

(b) Other Agreements and Proceedings. Spansion and the Purchaser shall have executed and delivered this Agreement, and Spansion shall have executed and delivered to the Purchaser the Notes.

(c) Indenture. Spansion and the other parties thereto shall have executed an indenture governing the notes (the “Indenture”).

(d) Senior Secured Notes. Spansion shall have issued $250,000,000 aggregate principal amount of its 11.25% Senior Unsecured Notes due 2016.

5. Restrictions on Transferability of Notes; Compliance with Securities Act.

(a) Restrictions on Transferability. The Notes shall be subject to the restrictions on transfer set forth in the Indenture.

(b) Lock-up. The Purchaser agrees that it has not and will not for a period of 90 days following the date hereof, without the prior written consent of Spansion, directly or indirectly, offer, sell or contract to sell, or otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the the Purchaser, its affiliates or any person in privity with the Purchaser) or announce the offering of, the Notes.

6. Miscellaneous.

(a) Entire Agreement. This Agreement, constitutes the full and entire understanding and agreement between the parties with regard to the subject matters hereof and thereof.

(b) Waivers and Amendments. No provision of this Agreement may be amended, waived or modified other than by a document signed by Spansion and the Purchaser.

(c) Governing law. All issues and questions concerning the construction, validity, enforcement and interpretation of the purchase documents shall be governed by, and construed in accordance with, the laws of the state of California, without giving effect to any choice of law or conflicts of law rules or provisions (whether of the state of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of California.

(d) Notices. Any notice, request or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given if personally delivered or mailed by registered or certified mail, postage prepaid, or by recognized overnight courier or personal delivery or sent by facsimile, addressed (i) if to the Purchaser, at the address the Purchaser has furnished to Spansion in writing, or (ii) if to Spansion, at the address it has furnished to the Purchaser in writing in accordance with this subsection. A notice shall be deemed effectively given: (a) upon personal delivery to the party to be notified; (b) when sent by confirmed facsimile if sent during normal business hours of the recipient, and if not, then on the next business day; (c) five (5) days after having been sent by registered or certified mail,

return receipt requested, postage prepaid; or (d) one (1) business day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt.

(e) Validity. If any provision of this Agreement is judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(f) Successors and Assigns. Except as otherwise expressly provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto, including with respect to any sale, disposition, or other transfer of any Note in conformance with this Agreement.

(g) Delays or Omissions. It is agreed that no delay or omission to exercise any right, power or remedy accruing to the Purchaser, upon any breach or default of Spansion under or with respect to this Agreement or any Note, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent or approval of any kind or character by the Purchaser of any breach or default under this Agreement, or any waiver by the Purchaser of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in writing and that all remedies, either under this Agreement, or by law or otherwise afforded to the Purchaser, shall be cumulative and not alternative.

(h) Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not considered in construing or interpreting this Agreement.

(i) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall be deemed to constitute one instrument.

[This space left blank intentionally.]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first written above.


SPANSION LLC

By:
Name:
Title:

ADVANCED MICRO DEVICES, INC.

By:
Name:
Title:

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