exv10w10w1



 






Exhibit 10.10.1



 




PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




AMENDMENT NO. 2 TO VOLUME PURCHASE AGREEMENT




          This Amendment No. 2 to the Volume Purchase Agreement (this “Amendment”) is dated as
of November 29, 2005, and is made by and between Komag USA (Malaysia) Sdn., a Malaysia unlimited
liability company (“Komag”), Komag, Incorporated, a Delaware Corporation (“Komag
Inc.”) and Western Digital Technologies, Inc., a Delaware corporation (“WDC”).




RECITALS




          A.     WDC, Komag and Komag Inc. previously executed a Volume Purchase Agreement effective as of
June 6, 2005 and amended by Amendment No. 1 dated July 22, 2005 (the “VPA”).




          B.     WDC, Komag and Komag Inc. now desire to amend the Agreement in the manner and upon the
terms and conditions hereinafter provided in this Amendment.




          NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties executing this Amendment hereby agree as follows:




AGREEMENT




          1.     Defined Terms. Capitalized terms not defined herein shall have the meanings set
forth in the VPA.




          2.     Exhibit B. The second page of Exhibit B of the VPA is hereby deleted in
its entirety and replaced with Exhibit B attached hereto.




          3.     Exhibit D. Exhibit D of the VPA is hereby deleted in its entirety and
replaced with Exhibit D attached hereto.




          4.     Exhibit F. Exhibit F of the VPA is hereby deleted in its entirety and
replaced with Exhibit F attached hereto.




          5.     Conditions. The effectiveness of this Amendment shall be conditioned upon 1)
approval from WDC’s board of directors and 2) approval from WDC’s bank lenders. Notwithstanding
anything herein to the contrary, this Amendment shall have no force or effect unless or until such
approvals have been received.




          6.     Ratification of VPA. In the event of an inconsistency between the terms of this
Amendment and the terms of the VPA, the terms of this Amendment shall control. Except as




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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




amended hereby, the VPA is ratified, approved and confirmed and shall remain in full force and
effect in accordance with its terms without modification.




          7.     Confidentiality. Each party agrees that the terms and conditions, but not the
existence, of this Amendment will be treated as the other’s Confidential Information subject to
Section 11 of the VPA.




          8.     Entire Agreement. The VPA, Exhibits, and specific Purchase Orders and Pull
Requests and this Amendment No. 1 set forth the complete agreement between the parties regarding
their subject matter and replace all prior or contemporaneous communications, understandings or
agreements, written or oral, about this subject.




          9.     Counterparts. This Amendment may be executed in one or more counterparts, each of
which will be deemed to be an original, but all of which will be considered one and the same
instrument. A photocopy of a signature or a facsimile of a signature shall be as valid as an
original.




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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




          IN WITNESS WHEREOF, the parties have caused this Amendment No. 2 to Volume Purchase Agreement
to be signed and accepted by their duly authorized representatives, effective as of the Effective
Date.




	 	 	 
	Western Digital Technologies, Inc.,

	 	Komag USA (Malaysia) Sdn.
	a Delaware corporation.

	 	a Malaysian corporation
	 
	 	 
	By: /s/Tom Nieto

	 	By: /s/Kheng Huat Oung
	 

	 	 
	Name: Tom Nieto

	 	Name: Kheng Huat Oung
	 

	 	 
	Title: Vice President, Materials

	 	Title: Managing Director
	 

	 	 
	 
	 	 
	Komag Incorporated

	 	 
	a Delaware corporation

	 	 






By: 
/s/ Ray L.
Martin                    

Name: Ray L. Martin                    

Title:  Executive Vice President, Customer Sales and Service               




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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




EXHIBIT B




PRICES




(Page 2)




ADDITIONAL PAYMENT TERMS




          WDC shall make [***] payments to Komag Inc. in accordance with the schedule set forth below
[***] to be applied against [***] purchases of Product in accordance with this Exhibit as set forth
below:




          [***]




          [***] Payment [***] shall be made subject to [***] Exhibit D. [***]. The parties
acknowledge that the [***] have already been paid and received. [***] Payment [***] shall be
repaid by Komag, Inc. to WDC solely in accordance with [***] Section 6.7 and 4.3.3 of the VPA.




          The parties agree that it is their mutual intent that [***] Payment [***] be used by the Komag
Group solely for manufacturing and operations in connection with the [***], and not for the Komag
Group’s general working capital purposes.




          Starting no earlier than the first date that first production comes off the [***] and no later
than [***], Komag Inc. shall make payments monthly to WDC equal to [***] for each Unit invoiced
during the fiscal month, within 7 days after the fiscal month-end (regardless of whether such Unit
was a result of [***] or previously existing capacity) (the “Per Unit Offset”) [***], then
the remainder of the [***] shall become due and payable to WDC at the end of the Initial Term, and
Komag Inc. shall make such payment in a reasonable period of time not to exceed 15 Days.




          Notwithstanding the foregoing, in the event WDC makes payment to Komag in accordance with
Section 6.5 of the VPA for Units invoiced during [***], then the Per Unit Offset to be paid monthly
by Komag Inc. to WDC referenced in the previous paragraph shall increase [***].




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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




EXHIBIT D




Progress Milestones




[***]




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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




EXHIBIT F




Volumes




	 	 	 	 	 	 
	 
	 	Quarter	 	 	Volume Requirement	 
	 	[***] Fiscal Quarter
[***] (i.e., the quarter


ending [***])

	 	 	[***] Units	 
	 	[***] Fiscal Quarter
[***] (i.e., the quarter


ending [***])

	 	 	[***] Units	 
	 	[***] Fiscal Quarter
[***] (i.e., the quarter


ending [***])

	 	 	[***] Units	 
	 	[***] Fiscal Quarter
[***] (i.e., the quarter


ending [***])

	 	 	[***] Units	 
	 	[***] Fiscal Quarter
[***] (i.e., the quarter


ending [***])

	 	 	[***] Units	 
	 	[***] Fiscal Quarter
[***] (i.e., the quarter


ending [***])

	 	 	[***] Units	 
	 	Each WDC Fiscal Quarter
following the [***]


Fiscal Quarter [***]
(i.e., each quarter
after the

quarter ending
[***]) for the term of
this VPA.

	 	 	[***] Units	 
	 






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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




AMENDMENT NO. 3 TO VOLUME PURCHASE AGREEMENT




          This Amendment No. 3 to the Volume Purchase Agreement (this “Amendment”) is dated as
of January 31, 2006, and is made by and between Komag USA (Malaysia) Sdn., a Malaysia unlimited
liability company (“Komag”), Komag, Incorporated, a Delaware Corporation (“Komag
Inc.”), and Western Digital Technologies, Inc., a Delaware corporation (“WDC”).




RECITALS




          A.     WDC, Komag and Komag Inc. previously executed a Volume Purchase Agreement effective as of
June 6, 2005 and amended by Amendment No. 1 dated July 22, 2005 and Amendment No. 2 dated November
29, 2005 (the “VPA”).




          B.     WDC, Komag and Komag Inc. now desire to amend the Agreement in the manner and upon the
terms and conditions hereinafter provided in this Amendment.




          NOW, THEREFORE, for and in consideration of the mutual covenants herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties executing this Amendment hereby agree as follows:




AGREEMENT




          1.     Defined Terms. Capitalized terms not defined herein shall have the meanings set forth in
the VPA.




          2.     Exhibit B. The second page of Exhibit B of the VPA is hereby deleted in
its entirety and replaced with Exhibit B attached hereto.




          3.     Exhibit D. Exhibit D of the VPA is hereby deleted in its entirety and
replaced with Exhibit D attached hereto.




          4.     Exhibit F. Exhibit F of the VPA is hereby deleted in its entirety and
replaced with Exhibit F attached hereto.




          5.     Conditions. The effectiveness of this Amendment shall be conditioned upon 1)
approval from WDC’s board of directors and 2) approval from WDC’s bank lenders. Notwithstanding
anything herein to the contrary, this Amendment shall have no force or effect unless or until such
approvals have been received.




          6.     Ratification of VPA. In the event of an inconsistency between the terms of this
Amendment and the terms of the VPA, the terms of this Amendment shall control. Except as amended
hereby, the VPA is ratified, approved and confirmed and shall remain in full force and effect in
accordance with its terms without modification.




1









 




 




PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




          7.     Confidentiality. Each party agrees that the terms and conditions, but not the
existence, of this Amendment will be treated as the other’s Confidential Information subject to
Section 11 of the VPA.




          8.     Entire Agreement. The VPA, Exhibits, and specific Purchase Orders and Pull
Requests and this Amendment No. 3 set forth the complete agreement between the parties regarding
their subject matter and replace all prior or contemporaneous communications, understandings or
agreements, written or oral, about this subject.




          9.     Counterparts. This Amendment may be executed in one or more counterparts, each of
which will be deemed to be an original, but all of which will be considered one and the same
instrument. A photocopy of a signature or a facsimile of a signature shall be as valid as an
original.




2









 




 




PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




          IN WITNESS WHEREOF, the parties have caused this Amendment No. 3 to Volume Purchase Agreement
to be signed and accepted by their duly authorized representatives, effective as of the Effective
Date.




	 	 	 
	Western Digital Technologies, Inc.,

	 	Komag USA (Malaysia) Sdn.
	a Delaware corporation.

	 	a Malaysian corporation
	 
	 	 
	By: /s/ Tom Nieto

	 	By: /s/ Kheng Huat Oung
	 

	 	 
	Name: Tom Nieto

	 	Name: Kheng Huat Oung
	 

	 	 
	Title: Vice President, Materials

	 	Title: Managing Director
	 

	 	 
	 
	 	 
	Komag Incorporated
	 	 
	a Delaware corporation
	 	 






By: /s/
Ray L. Martin                    

Name: Ray L. Martin                    

Title:  Executive Vice President, Customer Sales and Service                    




1









 




 




PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




EXHIBIT B




PRICES




(Page 2)




ADDITIONAL PAYMENT TERMS




          WDC shall make [***] payments to Komag Inc. in accordance with the schedule set forth below
[***] to be applied against [***] purchases of Product in accordance with this Exhibit as set forth
below:




          [***]




          [***] Payment [***] shall be made subject to [***] Exhibit D. [***]. The parties
acknowledge that the [***] have already been paid and received. [***] Payment [***] shall be
repaid by Komag, Inc. to WDC solely in accordance with [***] Section 6.7 and 4.3.3 of the VPA.




          The parties agree that it is their mutual intent that [***] Payment [***] be used by the Komag
Group solely for manufacturing and operations in connection with the [***], and not for the Komag
Group’s general working capital purposes.




          Starting no earlier than the first date that first production comes off the [***] and no later
than [***], Komag Inc. shall make payments monthly to WDC equal to [***] for each Unit invoiced
during the fiscal month, within 7 days after the fiscal month-end (regardless of whether such Unit
was a result of [***] or previously existing capacity) (the “Per Unit Offset”) [***], then
the remainder of the [***] shall become due and payable to WDC at the end of the Initial Term, and
Komag Inc. shall make such payment in a reasonable period of time not to exceed 15 Days.




          Notwithstanding the foregoing, in the event WDC makes payment to Komag in accordance with
Section 6.5 of the VPA for Units invoiced during [***], then the Per Unit Offset to be paid monthly
by Komag Inc. to WDC referenced in the previous paragraph shall increase [***].




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PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT

  



EXHIBIT D




Progress Milestones

[***]




1









 




 




PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY

WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST

FOR CONFIDENTIAL TREATMENT



 




EXHIBIT F




Volumes




	 	 	 	 	 	 
	 
	 	 Quarter 	 	 	Volume Requirement	 
	 	[***]
Fiscal Quarter for [***]


(i.e., the quarter ending [***])

	 	 	[***] Units	 
	 	[***]
Fiscal Quarter for [***]


(i.e., the quarter ending [***])

	 	 	[***] Units	 
	 	[***]
Fiscal Quarter for [***]


(i.e., the quarter ending [***])

	 	 	[***] Units	 
	 	[***]
Fiscal Quarter for [***]


(i.e., the quarter ending [***])

	 	 	[***] Units	 
	 	[***]
Fiscal Quarter for [***]


(i.e., the quarter ending [***])

	 	 	[***] Units	 
	 	[***]
Fiscal Quarter for [***]


(i.e., the quarter ending [***])

	 	 	[***] Units*	 
	 	Each
WDC Fiscal Quarter following the [***]

Fiscal
Quarter for [***] (i.e., each quarter after

 the quarter
ending [***]) for the term of this

VPA.

	 	 	[***] Units	 
	 




* No later than [***], Komag shall deliver notice to WDC in writing confirming whether it can
deliver [***] Units for [***] Fiscal Quarter for [***] (i.e., the quarter ending [***]). Failure
to deliver such notice shall be deemed confirmation of its ability to deliver the [***] Units. In
the event such notice states that Komag is unable to deliver [***] Units, the [***] requirement
shall be [***] Units for the [***] Fiscal Quarter for [***] (i.e., the quarter ending [***]) and
[***] Units for all subsequent quarters.





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