Exhibit 10.66
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EQUIPMENT LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Agreement"), dated as of December 17th, 2001,
is made by and between RF Monolithics, Inc., a Delaware corporation ("Lessor"),
having its principal place of business at 0000 Xxxxx Xxxx, Xxxxxx, XX, 00000,
and Tai-Saw Technology Co., Ltd., ("Lessee") a corporation duly organized and
existing under the laws of Taiwan, with its principal place of business at Xx.
0, Xxxxxxxxxx 0xx Xx., Xxxx-Xxxx Industrial District, Taoyuan, 324, Taiwan,
R.O.C.
RECITALS
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1. Lessee and Lessor have entered into a separate agreement (the
"Manufacturing Assembly Agreement") pursuant to which Lessee will
manufacture certain products for Lessor.
2. Lessee desires to lease certain machinery and equipment from Lessor for
purposes of manufacturing of said products.
3. Lessor has agreed to lease to Lessee, and Lessee has agreed to lease
from Lessor, all of said machinery and equipment as described on
Exhibit A attached hereto.
4. The parties desire to enter into this Agreement to set forth the terms
and conditions of such lease.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein, the sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE 1
LEASE
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1.1 Lease of Machinery and Equipment. Upon the terms and subject to the
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conditions and other provisions set forth in this Agreement, Lessor hereby
agrees to lease to Lessee, and Lessee hereby agrees to make lease payments to
Lessor for, machinery, equipment, accessories and manuals listed on Exhibit "A"
attached hereto (the "Assets").
(a) Total of Lease Payments. Lessee agrees to pay Lessor lease payments
totaling U.S. $1,045,260.00 plus any optional renewals and any Lease
Prepayments as defined below, for machinery, equipment, accessories and
manuals listed in Exhibit "A."
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(b) Lease Prepayment. Lessee will pay Lessor a Lease Prepayment of U.S.
$300,000.00 to cover the partial monthly lease payment (US$ 5,000 per
month) of the lease period including any periods of renewal. Lessee agrees
to pay Lease Prepayment in the following increments:
(1) An initial payment of U.S. $225,000.00 shall be made within two
(2) business days after Lessee receives documentation that the
Assets have shipped from Lessor's facility. Payment shall be in the
form of a wire transfer to the Lessor in immediately available
funds per Lessor's instructions. Documentation shall be in the form
of shipping advice from the Lessor. The shipping advice shall
contain an invoice for Custom's purposes and an air waybill number.
Transmission of the shipping advice can be in the form of
electronic mail or other electronic transfer means.
(2) A subsequent payment of U.S. $45,000.00 shall be made within
seven (7) business days after Assets are installed at Lessee's
facility. Payment shall be in the form of a wire transfer to the
Lessor in immediately available funds per Lessor's instructions.
Installed means Assets are set in place in their intended location
and power and other services are connected to them so that they are
capable of performing their normal functions.
(3) A final payment of U.S. $30,000.00 shall be made within 7
business days after Lessor notifies Lessee that Product
manufactured by using Assets have passed qualification testing done
by Lessor. Notification can be in the form of electronic mail or by
other electronic transfer means. Payment shall be in the form of a
wire transfer to the Lessor in immediately available funds per
Lessor's instructions.
(c) Fair Market Purchase Option. Lessee will have the option at the end
of this lease agreement to purchase the Assets under Lease Agreement as
described in subsequent paragraphs, at the then fair market value.
(d) Lease Payments. The timing of the first monthly lease payment will
be based on the date of notification of qualification from Lessor to
Lessee. Notification can be by e-mail or other electronic transfer means.
The first monthly lease payment will be due on the 5th day of the month
following notification of qualification. Lessee shall wire transfer to
Lessor a payment in immediately available funds of U.S. $29,035.00 per
Lessor's instructions. Such payments shall continue to be paid in each
succeeding month, due on the fifth day of each month, but with one-week
grace period, thereafter until the end of the lease period described below,
at which time, Lessee will have the option to purchase the Assets at the
then Fair Market Value per paragraph 1.1(c) above.
(e) Term of the Lease. The term of the lease period for the Assets is
36 months beginning from the date of the first monthly lease payment. Until
and after the first
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monthly lease payment is made, paragraphs 1.1(i) and 3.1 apply. Lease is
renewable annually in twelve (12) month increments at the Lease Payment defined
above.
(f) Early Termination of the Lease. The Lease Agreement may be terminated
sooner than 36 months as follows:
(1) If Lessee for any reason initiates early termination of the Lease
Agreement, Lessee must inform Lessor at least 180 days prior to
anticipated termination. Lessee and Lessor must enter into negotiation
regarding the early termination of the Lease Agreement. Lessee agrees
to pay any early termination fees or other special charges as
negotiated between Lessee and Lessor, and will arrange for and pay for
all de-installation, crating and other preparation for shipment,
shipment, customs, and delivery of Assets back to Lessor, to include
installation and repair of Assets at Lessor's facility, if Lessor deems
appropriate and necessary.
(2) If Lessee fails to regularly pay lease payments except for reasons
noted below in paragraph 1.1(f)4, and does not make arrangements for
satisfaction of lease payments that Lessor deems appropriate and
acceptable, then the Lessee will be in breach of Agreement and must
return assets to Lessor at Lessee's expense, to include de-installation
at Lessee's facility, crating and other preparation for shipment,
shipment, customs charges, delivery to Lessor's facility and
installation and repair at Lessor's facility necessary to make the
Assets functional if necessary. Termination of this Agreement under
this case shall in no way relieve Lessee from the obligation to make
payment of all amounts then due and payable. Further, Lessor shall be
entitled to recover any and all actual costs, expenses and damages,
including reasonable attorneys' fees and/or offset any amounts due to
Lessor by any and actual costs and expenses incurred by Lessor as a
result of the breach of this Agreement. Any remedies of this nature
shall not be exclusive, but shall be cumulative of any other remedy
herein or any other statute or law.
(3) If Lessor for any reason except for a breach of this Agreement as
indicated in paragraph 1.1(f)2 above, initiates early termination of
the Lease Agreement, Lessor must inform Lessee at least 180 days prior
to anticipated termination. Lessor and Lessee must enter into
negotiation regarding the early termination of the Lease Agreement.
Lessor agrees to pay any early termination fees or other special
charges as negotiated between Lessor and Lessee, and will arrange for
and pay for all shipment and transfer of Assets back to Lessor, to
include any installation and repair of Assets at Lessor's facility.
Early termination fees may include a prorated repayment by the Lessor
to the Lessee of the Lease Prepayment
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amount based on the remaining months of the Lease Period divided by the
Lease Period to include any renewals.
Example: Repayment = Lease Months remaining / 60 x $300,000
(4) As noted in the Recitals of this Agreement, Lessor and Lessee have
entered into a separate agreement ("the Manufacturing Assembly
Agreement") under which Lessee will manufacture Product for Lessee
using Assets. A material breach of this referenced agreement ("the
Manufacturing Assembly Agreement") regarding and involving the Product
listed in Schedule A1 of that agreement shall also constitute a breach
of this Agreement. Under this condition, Lessor agrees to not remove
Assets from Lessee's factory and to allow Lessee to use Assets to
manufacture product for customers until breach is corrected, or until
the Lease is terminated. If the breach of the Manufacturing Assembly
Agreement cannot be corrected to the satisfaction of Lessee, Lessee
shall have the option of keeping the Assets and paying Lessor a
negotiated Fair Market Purchase Price, or returning Assets to Lessor at
Lessor's expense. In either case, Lease shall be considered to be
terminated at that time. If Assets are returned to Lessor, Lessor will
be liable for expenses to include de-installation at Lessee's facility,
crating and other preparation for shipment, shipment, customs charges,
delivery to Lessor's facility and installation and repair at Lessor's
facility necessary to make the Assets functional if necessary. Further,
Lessee shall be entitled to recover any and all actual costs, expenses
and damages, including reasonable attorneys' fees and/or offset any
amounts due to Lessee by any and actual costs and expenses incurred by
Lessee as a result of the breach of this Agreement. Any remedies of
this nature shall not be exclusive, but shall be cumulative of any
other remedy herein or any other statute or law.
(5) If both parties deem that it is in their mutual best interest to
terminate the Lease Agreement prior to the defined term of the program,
then Assets may be purchased by Lessee or may be returned to Lessor. If
Assets are to be purchased by Lessee, both parties will establish and
agree on a fair market purchase price. However, nothing in the
preceding sentence shall obligate Lessor to reduce the total of the
unpaid balance of the remaining lease payments. Lessor will deliver to
Lessee a xxxx of sale for the Assets after receipt of either payment of
the all remaining lease payments and the fair market purchase price or
a fair market value purchase price as negotiated by both parties, and
this Agreement will then be considered to be terminated. If Assets are
to be returned to Lessor, Lessor will be liable for expenses to include
de-installation at Lessee's facility, crating and other preparation for
shipment, shipment, customs
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charges, delivery to Lessor's facility and installation
and repair at Lessor's facility necessary to make the
Assets functional if necessary.
(g) Deliveries of the Parties.
(1) Lessor shall deliver to Lessee a xxxx of sale with
respect to the Assets (the "Xxxx of Sale"), duly
executed by Lessor, after Lessor's receipt of full
payment of the lease payments and the fair market value
Purchase Price from Lessee, or the receipt of payment
of the negotiated fair market purchase price as
indicated in paragraph 1.1(f)4 or 1.1(f)5.
(2) Lessor will arrange for crating and/or shipment of
the Assets to Lessee using Lessee's instructions for
use of a freight forwarder per paragraphs 4.6 (a) and
4.6(b).
(3) Each party shall deliver to the other party such
other documents and certificates as the other party may
reasonably request.
(h) Delivery of Assets; Title; Risk of Loss. The Assets
leased hereunder shall be delivered FOB, Dallas, Texas, U.S.A. (as defined
in IncoTerms (2000) published by the International Chamber of Commerce).
Title to the Assets shall pass to Lessee upon exercise of the Fair Market
Purchase Options and Lessor's receipt of full payment of the Fair Market
Purchase Price from Lessee. Risk of Loss with respect to the Assets shall
pass to Lessee upon delivery to freight forwarder at Dallas, Texas, U.S.A.
Lessee agrees to procure insurance against loss and damage for leased
Assets equal to the value of the Assets as shown in Exhibit A of this
Agreement to be in force at the time Assets are delivered to the freight
forwarder, and agrees to continue insurance against loss and damage equal
to the depreciated value at the end of each subsequent 12-month period
going forward until the end of the lease period, or until Lessee obtains
title to the Assets.
(i) Ownership. Lessee understands and acknowledges that it
shall under no circumstances be considered to have any ownership or
proprietary interest in the Assets during the time when the Assets are
under Lessee's control. This includes the time prior to the first monthly
lease payment. Lessee agrees to segregate on its company books and label
leased Assets on each piece of equipment to indicate RFM ownership until
the lease is terminated. Lessee agrees that it will not mortgage, pledge,
assign or borrow against the leased Assets during the time the lease is in
force or that Assets are under Lessee's control.
(j) Use of Assets. Lessor agrees that Lessee may use Assets
to manufacture products for other customers with prior approval in writing
from Lessor.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
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2.1 Representations and Warranties of Lessor. Lessor hereby represents and :
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warrants to Lessee as follows
(a) Organization and Qualification. It is a corporation duly
organized, existing and in good standing under the laws of the state of its
incorporation and has the corporate power to own its properties and to carry on
its business as now being conducted.
(b) Authorization; Enforcement. It has full legal right, power
and authority to enter into and perform this Agreement; and the execution and
delivery of this Agreement by it and the consummation by it of the transactions
contemplated hereby have been duly authorized by it.
(c) EXCLUSION OF WARRANTIES. LESSOR WARRANTS THAT ALL OF THE
ASSETS PERFORMED SATISFACTORILY IN THE MANUFACTURE OF LESSOR'S PRODUCTS AT THE
TIME THEY WERE REMOVED FROM SERVICE TO BE CRATED FOR SHIPMENT. All of the Assets
are being transferred to Lessee "AS IS" AND THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, ARE EXCLUDED FROM THIS AGREEMENT AND SHALL NOT APPLY TO THE
ASSETS TRANSFERRED AND SOLD.
If one or more individual Assets are deemed to be in need of repair prior to
shipment, Lessor will conduct necessary repairs at Lessor's expense and the
individual Assets will be shipped to Lessee at a date later than the majority of
Assets are shipped. If the value of the individual Assets to be repaired is less
than 15% of the total value of Assets as indicated in Exhibit A, no adjustment
to the Lease Prepayment will be made. If the value of such individual Assets is
greater than 15% of the total value of the Assets as indicated in Exhibit A,
then the Lease Prepayment will be adjusted accordingly.
(d) LIMITATION/DISCLAIMER OF LIABILITY. EXCEPT FOR DAMAGES CAUSED
BY LESSOR'S WILLFUL MISCONDUCT, RECKLESSNESS, OR GROSS NEGLIGENCE, THE PARTIES
AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSOR LIMITS OR DISCLAIMS
LIABILITY RELATED TO THE MANUFACTURE, DELIVERY, OR USE OF THE ASSETS AND/OR
SUPPLIES USED IN CONNECTION WITH THE ASSETS, AS FOLLOWS:
(1) FOR DIRECT DAMAGES, LESSOR'S LIABILITY IS LIMITED TO THE
AMOUNTS PAID BY LESSEE FOR THE ASSETS GIVING RISE TO, OR
WHICH ARE THE SUBJECT OF, THE CLAIM WHETHER SUCH CLAIM
ALLEGES BREACH OF CONTRACT, TORTIOUS CONDUCT INCLUDING BUT
NOT LIMITED TO NEGLIGENCE OR ANY OTHER THEORY;
(2) LESSOR DISCLAIMS LIABILITY FOR INDIRECT, INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES
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(INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, REVENUE, OR
PROFIT) WHETHER SUCH CLAIM ALLEGES BREACH OF CONTRACT,
TORTIOUS CONDUCT INCLUDING BUT NOT LIMITED TO NEGLIGENCE, OR
ANY OTHER THEORY.
2.2 Representations and Warranties of Lessee. Lessee represents and
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warrants to Lessor as follows:
(a) Organization and Qualification. It is a corporation duly
organized, existing and in good standing under the laws of Taiwan, R.O.C., and
has the corporate power to own its properties and to carry on its business as
now being conducted.
(b) Authorization; Enforcement. It has full legal right, power
and authority to enter into and perform this Agreement and the execution and
delivery of this Agreement by it and the consummation by it of the transactions
contemplated hereby have been duly authorized by it.
(c) No Conflicts. The execution, delivery and performance of
this Agreement and the consummation by it of the transactions contemplated
hereby will not result in a violation of its certificate of incorporation or
bylaws or any law, rule, regulation, order, judgment or decree applicable to it
or by which any of its properties or assets is bound or affected. No Consent,
authorization or order of, or filing or registration with, any Governmental
Authority or any other Person is required for the execution, delivery and
performance by it of this Agreement.
ARTICLE 3
OTHER AGREEMENTS
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3.1 Asset Support. Lessee acknowledges and agrees that it shall deal directly
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with the respective manufacturer, or manufacturer's representative for support
for operation of the Assets at Lessee's sole cost and expense. Lessee agrees to
take delivery, store, use and care for Assets to the same degree Lessee uses
with respect to his own assets. Lessee agrees to perform preventative
maintenance, maintenance, and repairs to Assets at his sole expense to maintain
them in proper working order during the lease term. Lessee agrees to perform any
preventative maintenance in accordance with recommendations of the equipment
manufacturer's recommendations, or the Lessor's reasonable instructions. Lessee
shall maintain insurance coverage at his sole discretion for the Assets while in
use or in storage at Lessee's facility.
ARTICLE 4
GENERAL
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4.1 Survival of Representations and Warranties. Each of the representations and
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warranties made by the parties in this Agreement shall survive until the
expiration of the lease period any applicable statute of limitations.
4.2 Defined Terms. As used herein, the terms below shall have the following
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meanings:
"Governmental Authority" means any nation or government, any state,
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province or other political subdivision thereof or entity or agency exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Person" means an individual, a corporation, a partnership (general or
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limited), a limited liability company, an association, a trust or other entity
or organization, including a Governmental Authority.
4.3 Entire Agreement; Amendment. This Agreement constitutes the entire
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agreement of the parties and supersedes all previous proposals, oral or written,
and all negotiations, conversations or discussions heretofore between the
parties with respect to the subject matter hereof. This Agreement may be
amended, modified or supplemented only by written agreement signed by both of
the parties hereto.
4.4 Notices. Notices, requests, permissions, waivers and other communications
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hereunder shall be in writing and shall be deemed to have been duly given if
signed by the respective party giving them (in the case of any corporation, the
signature shall be by an officer or other authorized representative thereof) and
delivered by hand or by telecopy or on the date of receipt indicated on the
return receipt if mailed (registered or certified, return receipt requested,
properly addressed and postage prepaid):
If to Lessor:
RF Monolithics, Inc.
0000 Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, VP QA and Corporate Development
Fax: (000)-000-0000
E-Mail: xxxxxxxxxx@xxx.xxx
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Copy to (which shall not constitute notice):
Xxxxxx PLLC
00000 Xxxxx Xxxxx, #0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
E-Mail: xxxxxxx@xxxxxxxxxx.xxx
If to Lessee:
Yu Xxxx Xxxxx
Tai-Saw Technology Co., Ltd.
Xx. 0, Xxxxxxxxxx 0xx Xx.
Xxxx-Xxxx Xxxxxxxxxx Xxxxxxxx
Taoyuan 324, Taiwan, R.O.C.
Facsimile: 886-3-469-7523
E-Mail: xxxxxxx@xxxx0.xxxxxx.xxx
Copy to (which shall not constitute notice):
_____________
_____________
_____________
_____________
_____________
4.5 Governing Law. This Agreement is performable, in part, in Dallas County,
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Texas and, in part, in Taiwan, R.O.C. and shall be governed by and construed in
accordance with laws of the State of Texas, U.S.A., without giving effect to any
choice or conflict of law provision or rule (whether of the State of Texas or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than State of Texas. The United Nations Convention on
Contracts for the International Sale of Goods shall not apply to this Agreement.
4.6 Expenses. Each party shall bear its own expenses in connection with the
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execution, delivery and performance of this Agreement. Additional expenses to be
paid by the Parties of this Agreement are as follows:
(a) Crating. Lessor agrees to arrange for and pay for the crating and
other normal preparation for shipping expenses required to prepare the Assets
for shipping to the Lessee. If Lessee requests special preparation for shipment,
such as preparation by the manufacturer of specific pieces of equipment, then
Lessee agrees to pay for that special preparation.
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(b) Shipping. Lessee agrees to pay for shipping the Assets from
Dallas, Texas, to Lessee's facility. Lessor will arrange for shipment. Lessee
may recommend a freight forwarder and shipping method, and Lessor will attempt
to arrange shipment using Lessee's recommended freight forwarder. If for any
reason it becomes impossible to use the Lessee's recommended freight forwarder,
or in Lessor's opinion that it would be in the Lessee's best interest to use a
different freight forwarder than the one recommended by the Lessee, Lessor will
coordinate with the Lessee to choose a freight forwarder that is acceptable.
4.7 Dispute Resolution.
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(a) Negotiation. In the event of any dispute or disagreement
between parties as to the interpretation of any provisions of this Agreement (or
the performance of obligations hereunder), the matter, upon written request of
either party, shall be referred to representatives of the parties for decision,
each party being represented by a senior executive officer who has no direct
operational responsibility for the matters contemplated by this Agreement. The
representatives shall promptly meet in a good faith effort to resolve the
dispute. If the representatives do not agree upon a decision within 30 calendar
days after reference of the matter to them, each of the parties shall be free to
exercise all other remedies available to it.
(b) Dispute Resolution. Any controversy, dispute or claim arising
out of or relating in any way to this Agreement or the other agreements
contemplated hereby or the transactions arising hereunder or thereunder that
cannot be resolved by negotiation pursuant to paragraph (a) above, shall be
settled exclusively by binding arbitration in Hong Kong., and in accordance with
the current Commercial Arbitration Rules of the International Chamber of
Commerce. The parties shall endeavor to select a mutually acceptable arbitrator
knowledgeable about issues relating to the subject matter of this contract. In
the event the parties are unable to agree upon an arbitrator, each party will
select an arbitrator and the arbitrators in turn shall select a third
arbitrator. The language of the arbitration will be in English. The fees and
expenses of the arbitrator shall be shared equally by the parties and advanced
by them from time to time as required; provided, that at the conclusion of the
arbitration, the arbitrator may award costs and expenses (including the costs of
the arbitration previously advanced and the fees and expenses of attorneys,
accountants and other experts), plus interest, to the prevailing party to the
extent that in the judgment of the arbitrator it is fair to do so. No
pre-arbitration discovery shall be permitted, except that the arbitrator shall
have the power in his or her sole discretion, on application by any party, to
order pre-arbitration examination solely of those witnesses and documents that
any other party intends to introduce in its case-in-chief at the arbitration
hearing. The arbitrator shall render his or her award within 90 days of the
conclusion of the arbitration hearing. Notwithstanding anything to the contrary
provided in this Section 4.7 and without prejudice to the above procedures,
either party may apply to any court of competent jurisdiction for temporary
injunctive or other provisional judicial relief if such action is necessary to
avoid irreparable damage or to preserve the status quo until such time as the
arbitration panel is convened and available to hear such party's request for
temporary relief. The award rendered by the arbitrator shall be final and not
subject to judicial review, and judgment thereon may be entered in any
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court of competent jurisdiction. Any monetary award will be made and payable in
U.S. dollars free of any tax or other deduction.
4.8 Headings; References. The article, section and paragraph headings contained
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in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement. All references herein to
"Articles" or "Sections" shall be deemed to be references to Articles or
Sections hereof unless otherwise indicated.
4.9 Counterparts. This Agreement may be executed in counterparts and each
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counterpart shall be deemed to be an original, but all of which shall constitute
one and the same original.
4.10 Severability. If any provision of this Agreement or the application thereof
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to any person or circumstance is determined to be invalid or unenforceable, the
remaining provisions hereof, or the application of such provision to Persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon any such determination, the parties shall negotiate
in good faith in an effort to agree upon a suitable and equitable substitute
provision to effect the original intent of the parties.
4.11 English Controlling. For purposes of convenience, this Agreement may be
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translated, but it is understood that the English version of the Agreement (and
the Exhibits) will control for all purposes. In the case of a conflict between
the two versions, the parties are responsible for performing in accordance with
the English version hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized representatives as of the
date first above written.
RF MONOLITHICS, INC.
Signature: /s/ Xxx X. Xxxxxx
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Printed Name: Xxx X. Xxxxxx
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Title: Vice President, Manufacturing
Date: December 20, 2001
TAI-SAW TECHNOLOGY CO., LTD.
Signature: /s/ Yu-Xxxx Xxxxx
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Printed Name: Yu-Xxxx Xxxxx ______
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Title: President
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Date: December 20, 2001
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