CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST
FOR CONFIDENTIAL TREATMENT. THE OMITTED PORTIONS OF THIS EXHIBIT HAVE
BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.8
Agreement to Purchase and Sell Equipment
This Agreement made this 30th day of June, 1994 by and between
CellularVision Technology & Telecommunications, L.P.
with offices at Xxx Xxxxxxxxxxxx Boulevard, Freehold, N.J. 07728
(hereinafter referred to as "CT&T"),
and
mm-Tech, Inc, with offices at 000 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, XX
00000 (hereinafter referred to as "Supplier")
Whereas, CT&T is the owner of and developer (either directly or
through its predecessors and officers) of a certain millimeter wave
telecommunications system known as the CellularVision(TMSM) system for
transmitting information, which system is generally described in United States
Patent number 4,747,160 and foreign counterparts thereto (the "Patent") and
further described in the Federal Communications Commission proceedings regarding
Local Multipoint Distribution Services (In Re Application of Suite 12 Group);
and
Whereas, Supplier is in the business of manufacture and development of
microwave and telecommunications products and has agreed to perform such
services for and on behalf of CT&T in accordance with the specifications
directed by CT&T; and
Whereas, CT&T has agreed to purchase certain equipment from Supplier
under certain terms and conditions and it is the intention of both parties to
set forth such terms and conditions which shall govern the sale of the equipment
as well as the conduct of the parties with regard to proprietary information of
the other which will be necessarily be disclosed in the performance of this
transaction.
Now, therefore, in consideration of the mutual obligations of the
parties hereto as described herein, it is agreed and the parties agree to be
bound as follows:
1. Sale and Purchase. CT&T agrees to purchase and Supplier agrees to
sell certain equipment described in Schedule "A" attached hereto and made a part
hereof (hereinafter referred to as "Specified Equipment"). Schedule "A" may also
contain specifications of the equipment subject to this sale. In the event that
detailed specifications are not included in Schedule "A", then the parties have
agreed to submit such information to the other under separate cover, which
specifications shall be deemed included in Schedule "A" by reference. Schedule
"A" may be amended from time to time by mutual consent of the parties to change
the quantities, pricing, type of equipment, and/or specifications of the
equipment. Such changes shall be evidenced by the signature of an authorized
representative of each party together with the date of the modification being
affixed thereto. Until such modification has been executed by representatives of
both parties, the obligations of the parties to perform based upon the previous
schedule shall remain in full force and effect.
2. Purchase Price. For and in consideration of Supplier rendering full
and proper performance of its obligations hereunder, including the delivery of
the Specified Equipment within
the time frame set for delivery of same and performance of the Specified
Equipment in accordance with the specifications set forth for same, CT&T agrees
to pay Supplier the sum of $2,190,000.
The aforesaid sum is to be paid as follows: $876,000 to be paid on or
before this date; the remainder to be paid as set forth in Schedule "A". In the
event that the pricing for the Specified Equipment, as same currently exist or
as amended from time to time, is modified, then the pricing information and
payment terms for same, if applicable, shall be modified as set forth in the
amended Schedule "A".
3. Delivery. Supplier shall make delivery of the equipment to CT&T at
CT&T's designated address for delivery of such Specified Equipment. CT&T may
modify the place of delivery from time to time upon notice to Supplier. Delivery
shall be made as set forth in Schedule "A". In the event that an amended
Schedule "A" indicates a different time schedule for delivery, then the amended
delivery date shall be substituted for the instant schedule.
4. Installation. Supplier agrees to install the Specified Equipment at
sites designated by CT&T within the time period set for delivery of same on a
reasonable time and material basis. Such installation may be delayed by CT&T or
its customer, in the event that the site selection or needed infrastructure is
not complete by the delivery date, however, such delays shall not delay the time
in which payment is to be made. Payment shall nevertheless be due on the
original delivery date provided that the Specified Equipment was available for
delivery on such date. Supplier will provide whatever assistance is possible in
evaluation of sites, design of system layouts, etc. to facilitate and expedite
the process of installation of the infrastructure equipment.
5. Warranty. Supplier shall warrant the Specified Equipment to be free
from defects from material and workmanship, to perform in accordance with its
specifications, and to be in conformity with applicable specifications and
drawings for a period of two (2) years from the date of installation of the
equipment at CT&T or CT&T's customer's location, provided however, that this
warranty shall not apply to defects or nonperformance resulting from physical or
electrical abuse or misuse, or from natural disaster. The Traveling Wave Tube
Amplifier shall only be warranted for a period of one (1) year from the date of
installation. Return products will be shipped, transportation prepaid, to
Supplier by the most economical means. Shipping costs will be credited to CT&T
by Supplier. Supplier shall have the option to repair or replace the defective
items, provided, however, that any repairs shall not excessively delay the
receipt of replacement equipment by CT&T.
6. Waiver. CT&T may waive, at its option, any required specifications
and accept nonconforming product. Similarly, it may waive strict performance of
any provision of this Agreement. Any such waiver shall not be deemed to be a
modification of this Agreement and shall not relieve Supplier of its obligation
to perform hereunder except to the extent that CT&T has agreed to such
modification in writing.
7. Monitoring and Testing, Supplier agrees to give CT&T full access to
its site and manufacturing and development program for the purpose of monitoring
Supplier's performance under this contract. CT&T agrees that any confidential
processes of Supplier not covered by
Paragraphs 7 or 8 hereinafter shall remain the proprietary information of
Supplier and shall be treated in the same manner as Supplier treats proprietary
information of CT&T.
Supplier and CT&T shall jointly develop methods of testing the
Specified Equipment during the manufacture process so as to assure conformance
with the specification, quality control and, if applicable, improvement of the
specifications. CT&T shall obtain FCC typecast approval for the Specified
Equipment if same is necessary.
8. Proprietary Information. Proprietary information will be exchanged
and protected under the Non-Disclosure Agreement between Supplier and CT&T dated
June 30, 1994 and included by reference herein.
9. Intellectual Property. "Intellectual Property" shall mean any
patent, copyright, mask work registration, any application therefor, and the
underlying subject matter thereof. Intellectual Property shall also include the
design of the Product, including all drawings, reports and specifications
relating to the Product, its manufacture, testing, or installation. All
Intellectual Property produced by the Supplier or any of its employees or
consultants in the course of the performance of this Agreement or derived from
Proprietary Information of CT&T shall be owned by CT&T.
Supplier shall promptly inform CT&T of the production of any
intellectual Property to be owned by CT&T pursuant to this Agreement, shall
assure that its employees and consultants do not publish or disclose the subject
matter of such intellectual property to a third party without prior written
permission by CT&T, and shall further assure that its employees and consultants
do not publish or disclose the subject matter of such intellectual property to a
third party without prior written permission by CT&T, and shall further assure
that such employees and consultants cooperate with CT&T in the preparation and
filing, at CT&T's expense, of such applications as CT&T deems necessary and
appropriate in its sole discretion to protect such Intellectual Property
anywhere in the world.
Supplier represents to CT&T that it has, or will have, prior to
commencement of the activities under this Agreement, valid and sufficient
arrangements and written agreements with its respective employees and
consultants, such that CT&T shall own the Intellectual Property granted it
pursuant to the terms of this Agreement, free of any right or claims of said
employees and consultants.
10. Exclusivity. Supplier agrees to sell the Specified Equipment, or
any equipment which is intended to implement the CT&T CellularVision (TM SM)
transmission system or imitate same, to CT&T, its licensees or CT&T approved
purchasers exclusively. Similarly, Supplier shall not utilize CT&T's Proprietary
information or Intellectual Property in the development or production of
equipment for purchasers other than CT&T, its licensees or CT&T approved
purchasers. Seller may utilize, but may not sublicense or authorize third
parties to utilize, Proprietary information or Intellectual Property produced
solely by the Supplier or any of its employees or consultants in the course of
the performance of this Agreement in the development or production of equipment
which is neither Specified Equipment nor intended to implement the CT&T
CellularVision(TM SM) transmission system or imitate same, provided said
Proprietary Information or Intellectual Property is neither derived from nor
uses any other Proprietary Information or Intellectual Property of CT&T.
11. Favored Contractor. CT&T agrees that Supplier shall be deemed a
"favored contractor" and CT&T shall, whenever possible, offer Supplier the
opportunity to bid on any equipment supply contracts. CT&T, hereby, grants to
Supplier a right to bid on any future orders of the Specified Equipment. In the
event that there is a lower bid(s) from another party(s), Supplier will have the
last look option to match said lower bid and receive an order for a
Proportionate Quantity of the total number of units of Specified Equipment
required. "Proportionate Quantity" is defined as the quotient, rounded up to the
nearest integer, formed by dividing the total quantity of units of Specified
Equipment required by one plus the number of lower bidders meeting the lowest
price.
12. Royalty. Supplier agrees to execute CT&T's standard royalty
agreement with equipment suppliers requiring Supplier to pay CT&T a royalty in
the amount of 2.5% of the Gross Sales Price, exclusive of sales tax, upon
equipment which utilizes CT&T's Proprietary Information, Intellectual Property
or Patent.
13. Identifying Marks and Logos. Supplies shall, at the direction of
CT&T, affix the CellularVision(TM SM) trademark and/or logo and/or CT&T name
upon the Specified Equipment. No other trademark, logo or other corporate
company identifiers may be placed upon the Specified Equipment without written
consent of CT&T. Supplier shall also affix to the Specified Equipment
appropriate bar coding so as to enable CT&T to adequately track the Specified
Equipment.
14. Governing Law. This Agreement shall be governed by the laws of the
State of New Jersey and the parties agree to submit themselves to the
jurisdiction of the State and Federal Courts of the State of New Jersey as the
proper forum for resolution of disputes.
15. Complete Agreement. This Agreement constitutes the entire
understanding between the parties and supersedes any prior understandings. The
terms of this Agreement shall not be modified except in writing duly executed by
the parties hereto.
16. Binding Effect and Assignment. This Agreement shall be binding on
the parties hereto, their successors and assigns. Supplier may not assign its
obligations under this Contract without written consent of CT&T.
In Witness Whereof, the parties have executed this Agreement the day
and year first above-written.
Attest: CellularVision Technology &
Telecommunications, L.P.
("CT&T")
/s/Xxxxxxx Xxxxxxx by /s/Xxxxx Xxxxxxxxx
_______________________ ______________________
Xxxxx Xxxxxxxxx
Chief Executive Officer
Attest: mm-Tech, Inc.
("Supplier")
/s/Xxxxxxx Brand
_______________________ by ______________________
Xxxxxxx Brand
President
SCHEDULE A
Equipment to Be Delivered:
6 Transmitters @ 27.5-28.5 GHz. with redundant TWTAs and automatic switchover
Price: [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION] per transmitter totaling [CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
Paid as follows: 40% due upon execution of this Agreement totaling [CONFIDENTIAL
PORTION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]
Of this amount, [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] has already been paid, therefore, the
additional amount due is [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION]
The total deposit is to be deemed evenly allocable over each unit [CONFIDENTIAL
PORTION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] per unit) to be delivered.
The remainder due per unit [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] shall be paid 20 days after
delivery of each unit.
Delivery Dates:
One unit to be delivered and installed on each of:
July 1, 1994
July 15, 1994
August 5, 1994
August 15, 1994
September 7, 1994
September 30, 1994
Specifications: Set forth in separate document
Shipped System #5 10/95
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT, effective June 30th, 1994, (the "Effective
Date"), by and between CellularVision Technology and Telecommunications, L.P.,
having an address at 12 Xxx Xxxxxxxxxxxx Boulevard, Suite 12, Freehold, New
Jersey ("CT&T") and mmTech, having an address at 000 Xxxxxxxxxx Xxx Xxxx,
Xxxxxxxxx, XX 00000 (the "Other Party"), shall govern the conditions of
disclosure by CT&T to the Other Party of confidential technical and business
information of CT&T ("Information") relating to the utilization of millimeter or
other microwave frequencies aboe 12 GHz for the transmission of television or
other signals on a point to multi-point basis (the "Field"). Information, if
disclosed in writing, shall be labeled as "confidential" and if disclosed
orally, shall be identified as confidential at the time of disclosure and
confirmed as confidential in writing by CT&T within 30 days after disclosure.
The Other Party hereby agrees: (i) not to use the Information except for the
purposes of evaluation and determination of whether to enter into a business
relationship with CT&T and its affiliates within the Field, (ii) not to use the
Information to reverse engineer or otherwise design around any CT&T proprietary
project or product, and (iii) not to disclose Information to others without the
express written permission of CT&T, except that the Other Party shall not be
prevented from using or disclosing Information:
a) which is approved in writing by CT&T for release without
restrictions; or
b) which the Other Party can demonstrate by written records was
known to them as of the Effective Date; or
c) which is now public knowledge, or becomes public knowledge in the
future, other than through acts or omissions of the Other Party
in violation of this Agreement; or
d) which is lawfully obtained by the Other Party from sources
independent of CT&T who have a lawful right to disclose such
Information.
It is further agreed that CT&T's furnishing of Information to the Other Party
shall not constitute any grant, option, or license under any patent or other
intellectual property rights now or hereinafter held by CT&T.
In consideration of the disclosure made by CT&T hereunder, the Other Party
agrees that for five years from the date of the last such disclosure, it will
refrain from applying to the Federal Communications Commission ("FCC") or its
foreign counterparts for any licensed frequency allocation within the Field, and
from contesting any FCC or foreign counterpart waiver request o rule-making
sought by or on behalf of CT&T or any affiliates of CT&T, without concurrently
obtaining from CT&T a license to utilize the technology, such license at normal
terms and conditions shall not be unreasonably withheld.
The Other Party acknowledges that its breach of this Agreement may result in
actual and consequential damages to CT&T, and in further xxxxx, the extent of
which may be difficult or impossible to compensate through a monetary award.
This agreement shall be governed by, and construed and interpreted in accordance
with the laws of the State of New York, United State of America, without
reference to conflict of laws principles or statutory rule of arbitration. If
any term of this Agreement is found to be invalid or unenforceable, then such
term shall be deemed inoperative and this Agreement shall be deemed to have xxxx
modified accordingly.
This Agreement constitutes the entire and exclusive agreement between the
parties with respect to the subject matter hereof and supersedes and cancels all
previous registrations, agreements, commitments and writings in respect thereof.
Except as otherwise expressly provided herein, the obligations of the Other
Party hereunder shall continue full force and effect for five years after the
Effective Date.
CELLULARVISION TECHNOLOGY and
TELECOMMUNICATIONS, L.P.
("CT&T") ("Other Party")
By:/s/Xxxxx Xxxxxxxxx By:/s/Xxxxxxx Brand
____________________________ ___________________________
Print Name: Xxxxx Xxxxxxxxx Print Name: Xxxxxxx Brand
Title: Partner, CT&T Title: President
