1
EXHIBIT 10.1
PURCHASE AGREEMENT*
This Purchase Agreement ("AGREEMENT") is made and entered into as of the
27th day of August, 1999 between Superconductor Technologies Inc., a Delaware
corporation, having its principal place of business at 000 Xxxx Xxxxx, Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000 ("STI") and United States Cellular Corporation, a
Delaware corporation, having its principal place of business at 0000 Xxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 ("USCC"). This Agreement may refer to
STI and USCC individually as a "PARTY" or collectively as the PARTIES."
WHEREAS, STI manufactures and sells superconducting filters for use in
cellular and PCS radio systems.
WHEREAS, USCC desires to purchase superconducting filters, as set forth
on Attachment B ("SYSTEMS"), sold by STI;
WHEREAS, the Parties wish to enter into an agreement for USCC's purchase
of the Systems from STI and wish to replace any and all prior agreements, both
written and oral, with this Agreement;
WHEREAS, USCC desires to acquire warrants from STI which shall permit
USCC to purchase shares of STI's common stock ("COMMON STOCK");
NOW THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties hereto agree as follows:
ARTICLE 1
TERM, MUTUAL REPRESENTATIONS
1.1 The term of this Agreement shall be five (5) years from
the date of this Agreement, unless extended or earlier terminated as hereinafter
provided. This Agreement may be extended only upon the mutual written agreement
of the Parties.
1.2 STI represents that (i) it is duly incorporated and
existing under the laws of the State of Delaware and is in good standing under
such laws; (ii) it has all requisite legal and corporate power and authority to
execute and deliver this Agreement and effect the transactions contemplated
under this Agreement; and (iii) this Agreement, when executed and delivered by
STI, shall constitute valid and binding obligations of STI enforceable in
accordance with its terms.
*Certain information in this exhibit has been omitted and filed
separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
1
2
1.3 USCC represents that (i) it is duly incorporated and
existing under the laws of the State of Delaware and is in good standing under
such laws; (ii) it has all requisite legal and corporate power and authority to
execute and deliver this Agreement and effect the transactions contemplated
under this Agreement; and (iii) this Agreement, when executed and delivered by
USCC, shall constitute valid and binding obligations of USCC enforceable in
accordance with its terms.
ARTICLE 2
TERMINATION
Subject to Section 3.5, this Agreement may be terminated by written
notice thereof given by one Party to the other if one of the following occurs:
(a) A Party fails to comply with or perform any material covenant,
agreement or obligation provided in this Agreement (a
"DEFAULTING PARTY"), and the defaulting Party has not cured that
default within thirty (30) days after written notice thereof by
the non-defaulting Party; or
(b) A Party becomes insolvent or is adjudicated as bankrupt, or its
business comes into the possession or control of any trustee in
bankruptcy, or a receiver is appointed for it, or it makes a
general assignment for the benefit of creditors. If any of these
events occurs, no interest in this Agreement will be deemed an
asset of creditors.
ARTICLE 3
PURCHASE ORDERS
3.1 USCC will place written purchase orders with STI for a
minimum of one hundred (100) Systems for delivery prior to December 31, 2000 at
prices set forth in Attachment A. STI will provide written acknowledgments of
purchase orders so received. USCC will order a minimum of four hundred (400)
additional Systems for delivery prior to the end of the term of this Agreement
pending successful USCC TDMA and CDMA trials and future cost benefit analyses.
3.2 Any USCC purchase order for Systems issued during the
term of this Agreement will be deemed to be issued in accordance with the terms
of this Agreement, unless the Parties expressly agree to the contrary in
writing. Any printed term on USCC's purchase order that conflicts with this
Agreement will not be binding on either Party.
3.3 Any affiliate of USCC ("USCC AFFILIATE") may place a
purchase order pursuant to the terms and conditions of this Agreement.
2
3
3.4 USCC will provide to STI a quarterly written forecast of
the Systems it intends to order during the following quarter. This forecast will
be based upon a six (6) weeks lead time for deliveries after receipt of USCC's
purchase order.
3.5 USCC will exclusively purchase Systems from STI for a
period of six months commencing on the start date of this Agreement . USCC
agrees to purchase a minimum of 80% of Systems from STI for the remaining term
of the agreement. If USCC requires a system different from the Systems outlined
in Attachment B, STI has the first right of refusal to supply the new System(s)
as long as STI provides the new system within six months of the written request.
ARTICLE 4
ISSUANCE OF WARRANTS
4.1 As part of this Agreement, STI agrees to issue to USCC a
warrant in the form attached to this Agreement as Attachment C (the "WARRANT"),
which shall permit USCC to purchase up to One Million (1,000,000) shares of
STI's Common Stock, at an exercise price of $4.00 per share and subject to the
terms and conditions specified therein. USCC may exercise the purchase right
represented by the Warrants with respect to any number of shares of Common Stock
if the purchase right with respect to such shares becomes vested. The purchase
right with respect to up to 16,700 shares of Common Stock subject to the Warrant
shall become vested at the execution of this Agreement and 16,500 additional
Warrants shall become vested on October 1, 1999 pending the completion of
Purchase Orders for twenty-five System orders now in process. These twenty-five
Systems are not to be considered part of the one hundred Systems referenced in
Article 3.1. The purchase right with respect to the remaining number of shares
of Common Stock will become vested at a rate of one share per $25 worth of
purchases from USCC for the Systems pursuant to this Agreement. Such vesting
will occur on a calendar quarterly basis, the number of shares to vest in such
quarter will be the STI revenues under this Agreement during the quarter divided
by 25.
4.2 STI represents and warrants that: (a) no approval,
authorization, consent or order of or filing with any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency
is required in connection with the issuance and sale of the Warrant or the
underlying shares of Common Stock as contemplated under this Agreement (except
any necessary qualification under applicable securities laws and filings with
the Securities Exchange Commission); (b) STI has all requisite legal and
corporate power and authority to execute and deliver this Agreement, the
Warrant, and the Registration Rights Agreement between STI and USCC dated August
27, 1999, to issue the Warrant, to issue the Common Stock issuable on exercise
of the Warrant and to carry out and perform its obligations under the terms of
this Agreement, the Warrant and the Rights Agreement; (c) all corporate action
necessary on the part of the Company necessary for the execution and delivery of
the Agreements and the authorization, sale, issuance and delivery of the Shares
and the Warrants and the Common Stock issuable upon exercise of the Warrants has
taken place; (d) the Warrant when issued in compliance with the provisions of
this Agreement, will be validly issued, will be fully paid and nonassessable,
and will have the rights, preferences and
3
4
privileges described in the certificate representing the Warrants; (e) the
Common Stock issuable upon exercise of the Warrant has been duly and validly
reserved and, when issued in compliance with the provisions of this Agreement
and the certificate representing the Warrant will be validly issued, and will be
fully paid and nonassessable; (f) the Common Stock issued upon exercise of the
Warrant will be free of any liens or encumbrances other than any liens or
encumbrances created by or imposed upon USCC, provided, however, that the Common
Stock issuable upon exercise of the Warrants will be subject to restrictions on
transfer under state and/or federal securities laws as set forth in the
certificate representing the Warrant and in the Rights Agreement.
4.3 USCC hereby represents and warrants to STI with respect
to the issuance of the Warrant that it is acquiring the Warrant and the
underlying Common Stock for investment for its own account, not as a nominee or
agent, and not with the view to, or for resale in connection with, any
distribution thereof. USCC understands that the Warrant and the underlying
Common Stock have not been, and will not be, registered under the Securities Act
of 1933, as amended (the "SECURITIES ACT") by reason of a specific exemption
from the registration provisions of the Securities Act, the availability of
which depends upon, among other things, the bona fide nature of the investment
intent and the accuracy of USCC's representations as expressed herein. USCC is
an "ACCREDITED INVESTOR" within the meaning of Regulation D, Rule 501(a),
promulgated by the Securities and Exchange Commission.
4.4 USCC acknowledges that the Warrants and the underlying
Common Stock must be held indefinitely unless subsequently registered under the
Securities Act or unless an exemption from such registration is available. USCC
is aware of the provisions of Rule 144 promulgated under the Securities Act
which permit limited resale of shares purchased in a private placement subject
to the satisfaction of certain conditions, including, among other things, the
existence of a public market for the shares, the availability of certain current
public information about STI, the resale occurring not less than one year after
a party has purchased and paid for the security to be sold, the sale being
effected through a "broker's transaction" or in transactions directly with a
"market maker" and the number of shares being sold during any three-month period
not exceeding specified limitations. USCC understands that the certificates
evidencing the Warrant will be imprinted with a legend that prohibits the
transfer of such securities unless they are registered or such registration is
not required.
4.5 USCC understands that no public market now exists for
the Warrant to be issued by STI and that STI has made no assurances that a
public market will ever exist for the Warrant.
4.6 USCC has had an opportunity to discuss STI's business,
management and financial affairs with its management. USCC has also had an
opportunity to ask questions of officers of STI, which questions were answered
to its satisfaction. USCC understands that such discussions, as well as any
written information issued by STI, were intended to describe certain aspects of
STI's business and prospects but were not a thorough or exhaustive description.
4
5
ARTICLE 5
PRICING AND PRODUCT
5.1 Pricing for the Systems STI sells to USCC is set forth
in Attachment A and the specifications for the Systems STI will sell to USCC are
set forth on Attachment B.
5.2 STI warrants not to change the specifications outlined
in Attachment B in a manner that would diminish the System's performance without
written notification to USCC and the acceptance by USCC.
5.3 *
ARTICLE 6
DELIVERY, RISK OF LOSS AND TITLE
6.1 STI will ship all Systems to USCC within ten (10) days
of delivery dates specified by USCC on the applicable purchase order, provided
the Systems are included in the forecast set forth in Section 3.4.
6.2 STI will select the method and common carrier for
shipment unless notified by USCC reasonably in advance of the ship date that
USCC desires to select the method and common carrier. STI will pre-pay freight
charges from the place of shipment to the designated delivery address on the
Purchase Order. STI will not invoice USCC for standard ground shipment charges.
If USCC requests non standard shipment, STI will invoice the difference between
standard ground shipment and cost of the non standard request. Any non standard
freight charges invoiced to USCC will not include xxxx-up or administrative
charges.
6.3 Delivery terms herein are FOB to the designated delivery
address on the USCC Purchase Orders. Unless otherwise provided herein, title and
risk of loss will pass to USCC upon delivery to the designated delivery address
on the USCC purchase orders. STI warrants to USCC that such title is good and
clear and free of all liens and encumbrances.
*Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
5
6
6.4 USCC must notify STI, in writing or a confirmed
facsimile, within thirty (30) days of receipts of (i) any shortages or
discrepancies existing between the items charged to USCC on any invoice and the
Systems actually received by USCC in the corresponding shipment; and/or (ii) any
damages to the Systems. If STI does not receive written notice of such shortage
or discrepancy, damage or other objection within the thirty-(30) day period set
forth above, USCC will be deemed to have accepted the Systems.
6.5 Upon STI's receipt of notice that the Systems shipped to
USCC are damaged, defective or otherwise non-conforming (i.e., do not conform to
the applicable portion of the product specification set forth on Attachment B),
STI will promptly provide USCC with replacement Systems. USCC will then promptly
return the, defective or non-conforming Systems to STI. The cost associated with
shipping the defective and the replacement Systems will be borne by STI.
ARTICLE 7
USCC'S PAYMENT TO STI
7.1 STI agrees to invoice for the Systems only after USCC
receives the System.
7.2 USCC will pay all amounts invoiced by STI within thirty
(30) days of receipt of STI's invoice for the Systems. STI will issue a separate
invoice for each purchase order.
7.3 If the damaged or otherwise non-conforming Systems are
received by USCC from STI, that portion of the invoice for the damaged or
non-conforming Systems will not be paid until such Systems are replaced.
Invoices submitted for non-conforming Systems will not be due until thirty (30)
days after the conforming Systems have been received by USCC.
7.4 If USCC wishes to dispute any charge on an invoice, USCC
must provide STI a full written explanation of the basis of the dispute within
thirty (30) days of USCC's receipt of the invoice. If it is determined that the
disputed amount was properly billed to USCC, then USCC will remit full payment
within fifteen (15) days from the date of such determination. If it is
determined that USCC is not obligated to pay the disputed amount, then USCC will
have no obligation to pay the disputed amount to STI.
ARTICLE 8
TAXES
8.1 The prices set forth in Attachment A are exclusive of
any taxes, however designated, on the Systems STI sells to USCC under this
Agreement. STI will charge and collect from USCC appropriate federal, state and
local taxes, except to the extent that USCC provides STI with appropriate
documentation that USCC qualifies for a full or partial exemption.
6
7
8.2 In the event any taxes collected by STI from USCC are
inappropriately assessed against USCC, or any such taxes are charged by STI to
USCC at the incorrect rate of taxation, STI will refund to USCC any amounts
improperly collected by STI from USCC within thirty (30) days of notice of the
overpayment. Notice of USCC's overpayment of taxes to STI will be received when
STI discovers an error in the assessment or calculation of taxes; (ii) USCC
provides STI with written notice of the tax error; or (iii) any local, state or
federal agency or other third party advises STI of the tax error.
ARTICLE 9
INSTALLATION AND REPAIR
9.1 Installation of the Systems will be completed by USCC.
STI will, at no cost to USCC, provide appropriate training regarding the
installation of the Systems. Such training will be conducted when reasonably
requested by USCC.
9.2 STI will provide USCC and each USCC Affiliate with one
set of instructional material for the Systems as to the (i) proper installation
of the Systems; (ii) proper operation and (iii) removal and replacement of
Systems. STI will provide USCC at the time of installation with documents
evidencing the conformity of the Systems shipped to USCC with the appropriate
specification listed in Attachment B.
9.3 STI will operate a twenty-four (24) hour hotline to
provide telephone support to USCC. STI's Customer Service will be available to
USCC by telephone during STI's normal business hours of 8:00 a.m. to 5:00 p.m.,
Monday through Friday. Such support will be provided to USCC at no additional
cost.
9.4 If the Systems fail to operate in accordance with the
specifications set forth on Attachment B or does not pass a mutually agreeable
acceptance test, STI will attempt to correct the anomaly. If it is determined by
STI that factory repair is necessary, USCC will promptly ship the Systems to
STI. STI will pay for round trip freight charges. STI will then replace the
Systems on a like-for-like basis and return them to USCC at STI's cost within
twenty (20) working days. STI will replace the units at their cost with systems
in compliance with the original specs of the Systems, or if mutually acceptable
with a newer or updated System. Premium repair and replacement service is
available from STI's Customer Service at the rates set forth on Attachment A. It
is recommended that USCC maintain an inventory of spare Systems which may be
utilized in emergency situations.
ARTICLE 10
SOFTWARE LICENSE
10.1 As used herein, "SOFTWARE" is defined as any computer
code provided by STI to USCC for use in the temperature control and monitoring
of the Systems and any updates or maintenance releases thereto. The Software may
be provided on separate medium or may be imbedded in the Systems.
7
8
10.2 STI grants to USCC a limited non-exclusive license to
use the Software solely to support the operation of the Systems that are owned
by USCC and which are installed in cellular or PCS Systems owned or operated by
USCC. USCC may make copies for its internal use only of non-imbedded Software
provided with the Systems.
10.3 USCC agrees not to decompile, reverse engineer,
disassemble, or otherwise reduce the Software to human-perceivable form. USCC
may not modify, adapt, translate, rent, sublicense, assign, loan, distribute or
network the Software or create derivative works based upon the Software or any
part thereof, absent express written approval of STI. USCC is hereby granted
permission to link the Software to its Mobile Switching Office or Operations and
Maintenance Computer(s) for the sole purpose of monitoring and controlling the
Systems.
ARTICLE 11
WARRANTIES
11.1 Systems Warranties: STI provides a * warranty on its
Systems ("WARRANTY PERIOD"). The Warranty Period starts upon delivery of each
System. STI warrants that during the Warranty Period, the Systems furnished
under this Agreement will be free from defects in material and workmanship and
shall conform to the specifications as set forth in Attachment B. STI will make
all repairs including round trip freight to defective Systems at their costs
during the Warranty Period.
11.2 Warranty services furnished by STI hereunder will be
performed in a professional and competent manner.
11.3 Year 2000 Compliance
11.3.1 STI warrants that all Systems delivered under
this Agreement will be Year 2000 compliance and accurately process dates and
date related data for dates occurring after December 31, 1999 in the same manner
as such Systems processed dates and date related data for dates occurring prior
to January 1, 2000. The duration of the warranty will be as defined in, and
subject to the terms and limitation of STI's standard commercial warranty or
warranties relating to the specific Systems purchased by USCC under this
Agreement, provided that no warranty (including the foregoing warranty) will
expire prior to April 1, 2000.
The remedies available to USCC under this warranty will
include repair or replacement of any Systems whose non-compliance is discovered
and made known to STI. Nothing in this warranty will be construed to limit any
rights or remedies USCC may otherwise have under this Agreement or any purchase
order with respect to defects other than Year 2000 performance.
*Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with respect to
the omitted portions.
8
9
11.3.2 STI represents that it is using commercially
reasonable efforts to cause all Systems owned or controlled by STI to be Year
2000 compliant by December 31, 1999. STI further represents that it is using
commercially reasonable efforts to investigate and remain informed regarding the
efforts and progress of its vendors and suppliers as used by STI in providing
services or Systems to USCC under this Agreement. Upon USCC's request at
reasonable intervals STI will provide USCC a written summary of STI's
then-current information regarding the efforts and progress toward Year 2000
compliance for the Systems that STI uses to provide services for the Systems.
11.3.3 As used herein, Year 2000 compliant will mean:
(a) For all dates in storage, the century is
unambiguous
(b) All operations give consistent results
whether dates in the data, or the current System date, are before or after the
millennial New Year's Eve.
(c) February 29, 2000 is properly recognized
as a leap day.
(d) All dates are properly and unambiguously
recognized and presented on input and output interfaces (screens, reports,
files, etc.).
ARTICLE 12
PROPRIETARY RIGHTS
Nothing in this Agreement shall be construed as conferring to either
Party the right to use any name, trademark or other designation of the other
Party. Nothing in this Agreement shall be deemed to grant to either Party any
license under the trademarks, trade names, patents or patent applications of the
other Party.
ARTICLE 13
INTELLECTUAL PROPERTY INDEMNIFICATION
STI agrees to defend, at its expense, any suits against USCC based upon
a claim that any Systems furnished hereunder directly infringes a U. S. patent,
copyright, trade secret, trademark or other right of a third party, and to pay
costs and damages finally awarded in any such suit, provided that STI is
notified promptly in writing of the suit and, at STI's request and at its
expense, is given control of said suit and all reasonably requested assistance
for defense of same. If the use or sale of any Systems furnished hereunder is
enjoined as a result of such suit, STI, at its option, and at no expense to
USCC, shall obtain for USCC the rights to use or sell said Systems, or shall
substitute an equivalent product reasonably acceptable to USCC and extend this
indemnity thereto or shall accept the return Systems and reimburse USCC the
purchase price therefore. This indemnity does not extend to any suit based upon
any infringement or alleged infringement of any patent or copyright by
9
10
the combination of any Systems furnished by STI and other elements nor does it
extend to any products of USCC's design or formula.
ARTICLE 14
CONFIDENTIAL INFORMATION
14.1 All data or information provided by USCC to STI, or by
STI to USCC, which the disclosing Party identifies, orally or in writing, as
confidential or proprietary shall be designated as "CONFIDENTIAL INFORMATION."
Confidential Information shall be used only in connection with the performance
of obligations under this Agreement and the receiving Party shall only disclose
Confidential Information to its employees who have a need to know this
Confidential Information for performance of this Agreement. Absent the written
consent of the disclosing Party, the receiving Party is prohibited from
disclosing any Confidential Information to any individual or entity not a Party
to this Agreement, or to employees or independent contractors of the receiving
Party who do not have a need to know such Confidential Information.
14.2 Neither party shall not make any public disclosure or
announcement regarding the existence of this AGREEMENT, any of its terms and
conditions hereof, including the pricing, and any accepted purchase orders by
USCC except (i) with consent of the other party and (ii) as required by any
governmental body or law.
ARTICLE 15
AUDIT
15.1 Upon thirty (30) days written notice, either Party shall
have the right through its authorized representative to make an audit, during
normal business hours, of any records, accounts and processes which contain
information bearing upon the services provided under this Agreement. The audited
party agrees to provide audit support, including appropriate access to and use
of the audited party's facilities (including, but not limited to, conference
rooms, telephones and copying machines). Each party shall bear its own expenses
in connection with such audit.
15.2 Adjustments, credits or payments shall be made and any
corrective action shall commence within thirty (30) days from the auditing
party's receipt of the final audit report to compensate for any errors or
omissions that are disclosed by such audit and are agreed to by the Parties. One
and one-half percent (1 1/2%) or the highest interest rate allowable by law for
commercial transaction shall be assessed on any amounts owed and shall be
computed by compounding daily form the time of the overcharge to the date of
payment or credit.
10
11
ARTICLE 16
FORCE MAJEURE
Neither Party shall be held responsible for any delay or failure in
performance to the extent that such delay or failure is caused by a Force
Majeure act or event. Force Majeure acts or events are unforeseen circumstances
or causes beyond the reasonable control of the delayed Party including, but not
limited to, acts of God, war (including civil war), riots, embargoes, acts
(whether sovereign or contractual) of civil or military authorities, acts of any
government, earthquakes, fires, floods, explosions, the elements, epidemics,
quarantine restrictions, strikes, lockouts, plant shutdowns, slowdowns,
accidents, shortages of energy, material, component parts, labor, or delays of
suppliers or subcontractors. Each Party shall immediately notify the other Party
of an inability to perform due to the occurrence or existence of a Force Majeure
act or event by telephone and shall confirm such notification in writing as
promptly as possible, including in such notice an estimate of the effect and/or
duration of the Force Majeure act or event. The delivery schedule shall be
considered extended by a period of time equal to the time lost because of a
Force Majeure act or event. In the event STI is unable to wholly or partially
perform for a period of greater than 45 days because of any Force Majeure act or
event beyond its reasonable control, USCC may terminate any delayed order
without any liability.
ARTICLE 17
RELATIONSHIP BETWEEN THE PARTIES
The relationship between the Parties is that of independent
contractors. Notwithstanding Article #4, nothing herein is intended or will be
construed to establish any agency, employment, partnership or joint venture
relationship between the Parties. Each Party shall be solely responsible for the
direction, control and management of its subcontractors, agents and employees.
ARTICLE 18
LIMITATION OF LIABILITY
Neither Party shall be liable to the other under this Agreement for
indirect, incidental, consequential or special damages, including without
limitation, lost profits, regardless of the form of action.
ARTICLE 19
DISPUTE RESOLUTION
The Parties agree to meet and configure in good faith to resolve any
problems or disputes that may arise under this Agreement. If the Parties fail to
reach an amicable settlement within thirty (30) days after either Party gives
notice to the other Party of the existence of a problem or dispute, either
11
12
Party may then submit the dispute for arbitration to the American Arbitration
Association ("AAA") for final decision, with instructions that the arbitration
be conducted in the manner set forth below.
(a) Arbitration shall be conducted by three (3) arbitrators. USCC
shall nominate one (1) arbitrator and STI shall nominate one (1) arbitrator. The
third arbitrator shall be agreed upon by the arbitrators nominated by the
Parties, and this third arbitrator shall serve as chairperson of the panel.
(b) The place of arbitration shall be at a neutral location agreed
upon by the Parties. The arbitration award shall be final and binding on the
Parties. The costs of arbitration shall be borne by a Party or the Parties, as
determined by the arbitration panel.
(c) When any dispute occurs and when any dispute is under
arbitration, with the exception of the matters under dispute, the Parties shall
continue to exercise their remaining respective rights and fulfill their
remaining respective obligations under this Agreement.
ARTICLE 20
ASSIGNMENT
Neither Party shall assign or transfer their rights or obligations under
this Agreement without the proper written consent of the other Party.
Notwithstanding the foregoing, either Party may, upon prompt written notice,
assign their respective rights and obligations pursuant to this Agreement to any
affiliate, provided, however, that the assigning Party shall remain liable under
this Agreement. In the event of an assignment, this Agreement shall be binding
upon and inure to the benefit of each such successor or transferee.
ARTICLE 21
GOVERNING LAW
This Agreement and the rights and duties of the Parties hereunder shall
be governed and interpreted according to the laws of the State of Illinois.
ARTICLE 22
AMENDMENT
No alterations or modifications of this Agreement shall be binding upon
either STI or USCC unless made in writing and signed by an authorized
representative of each.
12
13
ARTICLE 23
SEVERABILITY
Any provision of this Agreement that is determined to be invalid or
unenforceable will be ineffective to the extent of such determination without
invalidating the remaining provisions of this Agreement or affecting the
validity of enforceability of such remaining provisions.
ARTICLE 24
SURVIVAL OF OBLIGATIONS
The rights and obligations of the Parties under this Agreement that, by
their nature, would continue beyond the termination, cancellation or expiration,
shall survive such termination, cancellation or expiration.
ARTICLE 25
WAIVER
Any failure by either Party to insist upon the specific performance by
the other Party of any of the provisions of the Agreements shall not be deemed a
waiver of any of the provisions of this Agreement, and each Party,
notwithstanding such failure, shall have the right thereafter to insist upon the
specific performance of any and all of the provisions of this Agreement.
ARTICLE 26
NOTICES
Except as may be otherwise specifically provided, all notices and
communications shall be in writing and delivered by: (a) United States Postal
Service certified or registered mail, return receipt requested, postage prepaid;
(b) facsimile transmission with a copy mailed by first class mail or its
equivalent deposited in the United States Postal Service, postage prepaid; (c)
overnight courier service; or (d) personal delivery; and shall be directed to
the persons at the applicable addresses set forth below, or to such other person
or place as the Parties may direct. Notice shall be deemed received on the date
of facsimile transmission confirmation, or the date of delivery, whichever
applies:
Superconductor Technologies, Inc. United States Cellular Corp.
000 Xxxx Xxxxx 0000 Xxxx Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxx Attn: Mr. Xxxx Xxxx
Manager, HQ Sales Administration Procurement Manager
Telephone (000) 000-0000 Telephone (000) 000-0000
Facsimile (000) 000-0000 Facsimile (000) 000-0000
13
14
or at such other address as the intended recipient previously shall have
designated by written notice to the other Party.
ARTICLE 27
HEADINGS
Headings are inserted for convenience only and shall not be used in any
way to construe the terms of this Agreement.
ARTICLE 28
ENTIRE AGREEMENT
This Agreement and Attachment C, Attachments A and B and the
Registration Rights Agreement incorporated herein by reference, constitute the
entire understanding between the Parties. This Agreement supersedes all prior
agreements between the Parties relating to the subject matter contained herein
and merges all prior discussions between them. Neither Party shall be bound by
any definition, condition, provision, representation, warranty, covenant or
promise other than as expressly stated in this Agreement or as is
contemporaneously or subsequently set forth in writing and executed by a duly
authorized officer or representative of the Party to be bound thereby.
14
15
IN WITNESS HEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives:
Superconductor Technologies Inc. United States Cellular Corporation
By: /s/ E. Xxx Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
Title: Sr. Vice President, Sales Title: Executive Vice President,
& Marketing Engineering & Network Operations
Date: August 27, 1999 Date: August 27, 1999
15
16
ATTACHMENT A
SuperFilter(R) Systems Pricing
-----------------------------------------------------------------------------
MODEL DESCRIPTION PRICE PER SYSTEM
-----------------------------------------------------------------------------
* Cellular A Band, 2-PAK, Rack *
Mount, Replacement Option
-----------------------------------------------------------------------------
* Cellular B Band, 2-PAK, Rack *
Mount, Replacement Option
-----------------------------------------------------------------------------
* Cellular A Band, 2-PAK, Rack *
Mount, Variable Gain Option
-----------------------------------------------------------------------------
* Cellular B Band, 2-PAK, Rack *
Mount, Variable Gain Option
-----------------------------------------------------------------------------
* Cellular A Band, 2-PAK, Rack *
Mount, SuperMC
-----------------------------------------------------------------------------
* Cellular B Band, 2-PAK, *
Rack Mount, SuperMC
-----------------------------------------------------------------------------
* Cellular A Band, 6-PAK, Rack *
Mount, Variable Gain Adapter
-----------------------------------------------------------------------------
* Cellular B Band, 6-PAK, Rack *
Mount, Variable Gain Adapter
-----------------------------------------------------------------------------
* Cellular A Band, 6-PAK, Rack *
Mount, Replacement Adapter
-----------------------------------------------------------------------------
* Cellular B Band, 6-PAK, Rack *
Mount, Replacement Adapter
-----------------------------------------------------------------------------
* Cellular A Band, 6-PAK, Rack *
Mount, SuperMC(TM)
-----------------------------------------------------------------------------
* Cellular B Band, 6-PAK, Rack *
Mount, SuperMC(TM)
-----------------------------------------------------------------------------
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
17
ATTACHMENT B
GUIDE TO SPECIFICATIONS
--------------------------------------------------------------------------------
MODEL NUMBER PAGE NUMBER
--------------------------------------------------------------------------------
* i
--------------------------------------------------------------------------------
* ii
--------------------------------------------------------------------------------
* iii
--------------------------------------------------------------------------------
* iv
--------------------------------------------------------------------------------
* v
--------------------------------------------------------------------------------
* vi
--------------------------------------------------------------------------------
* vii
--------------------------------------------------------------------------------
* viii
--------------------------------------------------------------------------------
* ix
--------------------------------------------------------------------------------
* x
--------------------------------------------------------------------------------
* xi
--------------------------------------------------------------------------------
* xii
--------------------------------------------------------------------------------
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
18
SUPERFILTER(R) MODEL *
Cellular A Band, 2-PAK, Rack Mount, Replacement Option
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 815 MHz *
815 - 822.2 MHz *
837.2 - 844.5 MHz *
847.1 - 869 MHz *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements 150 W @ + 27VDC idle
180 W cool-down
Operating temperature 0 to 50(degree) C
Weight 55 lbs.
Size 17" X 25" X 7" (Rack Mounting Provided)
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
i
19
SUPERFILTER(R) MODEL *
Cellular B Band, 2-PAK, Rack Mount, Replacement Option
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 829 MHz *
829- 833 MHz *
845.22 - 846.28 MHz *
000 - 000 XXx *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements 150 W @ + 27VDC idle
180 W cool-down
Operating temperature 0 to 50(degree) C
Weight 55 lbs.
Size 17" X 25" X 7" (Rack Mounting Provided)
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
ii
20
SUPERFILTER(R) MODEL *
Cellular A Band, 2-PAK, Rack Mount, Variable Gain Option
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 815 MHz *
815 - 822.2 MHz *
837.2 - 844.5 MHz *
847.1 - 869 MHz *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements 130 W @ + 27VDC idle
160 W cool-down
Operating temperature 0 to 50(degree) C
Weight 55 lbs.
Size 17" X 25" X 7" (Rack Mounting Provided)
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
iii
21
SUPERFILTER(R) MODEL *
Cellular B Band, 2-PAK, Rack Mount, Variable Gain Option
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 829 MHz *
829- 833 MHz *
845.22 - 846.28 MHz *
000 - 000 XXx *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements 130 W @ + 27VDC idle
160 W cool-down
Operating temperature 0 to 50(degree) C
Weight 55 lbs.
Size 17" X 25" X 7" (Rack Mounting Provided)
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
iv
22
SUPERFILTER(R) MODEL *
Cellular A Band, 2-PAK, Rack Mount, SuperMC(TM)
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 815 MHz *
815 - 822.2 MHz *
837.2 - 844.5 MHz *
847.1 - 869 MHz *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
130 W @ + 27VDC idle
160 W cool-down
SuperMC
30 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
55 lbs.
SuperMC
12 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting Provided)
SuperMC
17" X 12.5" X "1.7"
Connections
RF Input Connectors N - Female
RF Output Connectors BNC
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
V
23
SUPERFILTER(R) MODEL *
Cellular B Band, 2-PAK, Rack Mount, SuperMC(TM)
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 829 MHz *
829- 833 MHz *
845.22 - 846.28 MHz *
000 - 000 XXx *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
130 W @ + 27VDC idle
160 W cool-down SuperMC
30 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
55 lbs.
SuperMC
12 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting Provided)
SuperMC
17" X 12.5" X "1.7"
Connections
RF Input Connectors N - Female
RF Output Connectors BNC
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
Vi
24
SUPERFILTER(R)MODEL *
Cellular A Band, 6-PAK, Rack Mount, Variable Gain Adapter
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 815 MHz *
815 - 822.2 MHz *
837.2 - 844.5 MHz *
847.1 - 869 MHz *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
130 W @ + 27VDC idle
160 W cool-down Variable Gain Adapter
10 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
58 lbs.
Variable Gain Adapter
12 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting
Provided)
Variable Gain Adapter
17" X 12.5" X "1.7"
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
Vii
25
SUPERFILTER(R)MODEL *
Cellular B Band, 6-PAK, Rack Mount, Variable Gain Adapter
PARAMETER SPECIFICATION (EACH OF TWO RF PATHS)
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 829 MHz *
829- 833 MHz *
845.22 - 846.28 MHz *
000 - 000 XXx *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no *
damage)
Max out-of-band RF input signal level *
(no damage)
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
130 W @ + 27VDC idle
160 W cool-down Variable Gain Adapter
10 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
58 lbs.
Variable Gain Adapter
12 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting
Provided)
Variable Gain Adapter
17" X 12.5" X "1.7"
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
Viii
26
SUPERFILTER(R) MODEL *
Cellular A Band, 6-PAK, Rack Mount, Replacement Adapter
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 815 MHz *
815 - 822.2 MHz *
837.2 - 844.5 MHz *
847.1 - 869 MHz *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no damage) *
Max out-of-band RF input signal level (no damage) *
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
130 W @ + 27VDC idle
160 W cool-down
Replacement Adapter
60 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
58 lbs.
Replacement Adapter
20 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting
Provided)
Replacement Adapter
17" X 17.5" X "1.7"
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
IX
27
SUPERFILTER(R) MODEL *
Cellular B Band, 6-PAK, Rack Mount, Replacement Adapter
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 829 MHz *
829- 833 MHz *
845.22 - 846.28 MHz *
000 - 000 XXx *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no damage) *
Max out-of-band RF input signal level (no damage) *
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
130 W @ + 27VDC idle
160 W cool-down
Replacement Adapter
60 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
58 lbs.
Replacement Adapter
20 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting
Provided)
Replacement Adapter
17" X 17.5" X "1.7"
Connections
RF Connectors N - Female
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
X
28
SUPERFILTER(R) MODEL *
Cellular A Band, 6-PAK, Rack Mount, SuperMC(TM)
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 815 MHz *
815 - 822.2 MHz *
837.2 - 844.5 MHz *
847.1 - 869 MHz *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no
damage) *
Max out-of-band RF input signal level
(no damage) *
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
140 W @ + 27VDC idle
180 W cool-down
SuperMC
30 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
48 lbs.
SuperMC
12 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting
Provided)
SuperMC
17" X 12.5" X "1.7"
Connections
RF Input Connectors N - Female
RF Output Connectors BNC
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
XI
29
SUPERFILTER(R) MODEL *
Cellular B Band, 6-PAK, Rack Mount, SuperMC(TM)
PARAMETER SPECIFICATION *
-------------------------------------------------------------------------
Passband *
Rejection (from max. passband gain)
DC - 829 MHz *
829- 833 MHz *
845.22 - 846.28 MHz *
000 - 000 XXx *
000 - 000 XXx *
Noise Figure *
Gain *
Attenuation *
VSWR *
Output third order intercept point *
Max in-band RF input signal level (no
damage) *
Max out-of-band RF input signal level
(no damage) *
GENERAL SPECIFICATION
-------------------------------------------------------------------------
Power requirements SuperFilter
140 W @ + 27VDC idle
180 W cool-down
SuperMC
30 W @ + 27VDC
Operating temperature 0 to 50(degree) C
Weight SuperFilter
58 lbs.
SuperMC
12 lbs.
Size SuperFilter
17" X 25" X 7" (Rack Mounting Provided)
SuperMC
17" X 12.5" X "1.7"
Connections
RF Input Connectors N - Female
RF Output Connectors BNC
DC power connectors Wire clamp terminal block
RS-232 Port Connector DB- 25S
*Certain information on this page has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.
STI reserves the right to change specifications at any time
STI PROPRIETARY
XII
