METAWAVE COMMUNICATIONS CORPORATION
MANUFACTURING AGREEMENT
This Manufacturing Agreement (this "Agreement") is made this
1st day of April, 2001 between Metawave Communications
Corporation, a Delaware corporation ("METAWAVE"), and Viasystems,
Inc., a Delaware corporation ("VIASYSTEMS").
RECITALS
METAWAVE desires to have certain products of its design
manufactured by VIASYSTEMS for sale to METAWAVE. VIASYSTEMS has
the capability of manufacturing such products and desires to do
so for sale to METAWAVE.
AGREEMENT
In consideration of the foregoing and the agreements
contained herein, the parties agree as follows:
1. Definitions.
(a) "Affiliate" shall mean any entity that directly or
indirectly controls, is under common control with, or is
controlled by, one of the parties to this Agreement. An entity
shall be deemed to be in control of another entity only if, and
for so long as, it owns or controls more than fifty-one percent
(51%) of the shares of the subject entity entitled to vote in the
election of the directors (or, in the case of an entity that is
not a corporation, for the election of the corresponding managing
authority).
(b) "B Stock Inventory" shall mean those Products or items of
Inventory that have been identified as having been previously in
commercial use and have been refurbished to meet the
Specifications. B Stock Inventory cannot be sold or represented
as new material.
(c) "Confidential Information" of a party shall mean any
information disclosed by that party to the other pursuant to this
Agreement or pursuant to either of the Transition Services
Agreements of even date herewith between the parties which is in
written, graphic, machine readable or other tangible form and is
marked "Confidential," "Proprietary" or in some other manner to
indicate its confidential nature. Confidential Information may
also include oral information disclosed by one party to the other
pursuant to this Agreement, provided that such information is
designated as confidential at the time of disclosure and is
reduced to writing by the disclosing party within a reasonable
time (not to exceed thirty (30) days after its oral disclosure),
and such writing is marked in a manner to indicate its
confidential nature and delivered to the receiving party.
Notwithstanding any failure to so identify it, however, all
Specifications shall be Confidential Information of METAWAVE.
(d) "Cost" shall mean the actual purchase price of Inventory or
a service or the actual cost incurred in the manufacture, test or
assembly of a Product, and does not include an administrative or
similar xxxx-up.
(e) "Intellectual Property" shall mean (i) with respect to
METAWAVE, all rights held by METAWAVE in the Products and in its
Confidential Information, including, but not limited to, patents,
copyrights, authors' rights, trademarks, tradenames, know-how and
trade secrets, irrespective of whether such rights arise under
U.S. or international intellectual property, unfair competition
or trade secret laws, and (ii) with respect to VIASYSTEMS, all
rights held by VIASYSTEMS in its Confidential Information,
including, but not limited to, patents, copyrights, authors'
rights, trademarks, tradenames, know-how and trade secrets,
irrespective of whether such rights arise under U.S. or
international intellectual property, unfair competition or trade
secret laws.
(f) "Inventory" shall mean all raw materials, components and
supplies necessary for the manufacture of Products pursuant to
this Agreement.
(g) "Long-Lead Inventory" shall mean those items of Inventory
identified in writing by VIASYSTEMS to METAWAVE prior to
beginning manufacture of any particular type of Product that have
a lead time from VIASYSTEMS' suppliers longer than ninety (90)
days.
(h) "Products" shall mean all products (i) designed by METAWAVE
or its Affiliates or (ii) marketed by METAWAVE or its Affiliates,
and in each case in respect of which METAWAVE or its Affiliates
originally held, or have subsequently acquired, manufacturing
rights, including, without limitation, the products identified in
Exhibit A hereto and any modifications or replacements thereof or
substitutions therefor, but subject to delayed applicability to
the extent described in Exhibit A, but excluding antenna panels
and linear power amplifiers.
(i) "Purchase Order" shall mean a METAWAVE Purchase Order in the
form mutually agreed by the parties hereto.
(j) "Specifications" shall mean the specifications for the
Products as provided by METAWAVE and accepted by VIASYSTEMS, and
as revised from time to time upon mutual agreement of the parties
hereto.
(k) "Trademarks" shall mean the trademarks that are associated
with the Product which are approved in writing by METAWAVE from
time to time for use by VIASYSTEMS in the manufacture of the
Products.
2. Manufacture and Supply of Products.
(a) Agreement to Manufacture. Pursuant to Purchase Orders or
changes to Purchase Orders issued by METAWAVE or its Affiliates
and accepted by VIASYSTEMS, VIASYSTEMS agrees to procure
Inventory and to manufacture, test, assemble, and deliver the
Products pursuant to the Specifications for each such Product and
to deliver such Products to a location designated by METAWAVE or
its Affiliates. METAWAVE or its Affiliates, as the case may be,
agrees to purchase, and VIASYSTEMS agrees to supply, all
manufacture, test and assembly services for the Products required
by METAWAVE and its Affiliates on a global basis during the term
of this Agreement exclusively from VIASYSTEMS, subject to
Sections 12(e) and 12(f); provided, however, that METAWAVE and
its Affiliates reserve the right to purchase supply, manufacture,
test, and assembly services for the Products (or components
therefor) from a third party from an alternate manufacturer
during any exclusivity period hereunder solely for development
and testing purposes only, provided that such Products are not
used in METAWAVE's business for commercial resale.
(b) [*]
(c) Purchase Orders. All Purchase Orders shall be submitted to
VIASYSTEMS in writing by electronic transmission, mail or
facsimile to the address set forth on the signature page to this
Agreement, and shall conform to the Binding Forecasts in
accordance with Section 2(b). METAWAVE shall submit such
Purchase Orders to VIASYSTEMS at least [*] prior to the date of
requested delivery ("Delivery Date"), or such longer period as
mutually agreed upon by the parties hereto for Products
incorporating Long-Lead Inventory.
(d) [*]
(e) Acceptance or Rejection of Purchase Orders. All Purchase
Orders shall be deemed accepted unless rejected by VIASYSTEMS, in
writing, within [*] after receipt by VIASYSTEMS if such Purchase
Order conforms to the Binding Forecast. If such Purchase Orders
do not conform to the Binding Forecasts then the parties hereto
shall agree upon a Delivery Date. In the event of a conflict
between the terms of a Purchase Order and this Agreement, this
Agreement shall control.
(f) Engineering Changes. METAWAVE may request at any time that
VIASYSTEMS incorporate an engineering change into a Product.
Such request will include a description of the proposed change
sufficient to permit VIASYSTEMS to evaluate its feasibility.
VIASYSTEMS' evaluation shall be in writing and shall state the
impact on delivery schedule and expected Cost. [*].
(g) Manufacturing Process. VIASYSTEMS will utilize
manufacturing processes and productions methods approved by
METAWAVE, which approval shall not be unreasonably withheld.
VIASYSTEMS will employ proper equipment, machinery and production
methods to ensure that the Products will at all times meet the
Specifications. VIASYSTEMS commits to ensure that all processes
which contribute to the development, production and services of
Product remain ISO registered. Any failure to do so shall be
considered a material breach of this Agreement. [*].
(h) Monitoring of Production. METAWAVE shall have the right,
upon [*] advance written notice, during normal business hours and
in such a manner so as to not unreasonably interfere with the
business of VIASYSTEMS, to [*]. All representatives of METAWAVE
conducting such inspections shall comply with all applicable
safety and security rules of VIASYSTEMS.
(i) Product Identification. VIASYSTEMS will not place its name
or any other marking not approved by METAWAVE anywhere on the
Products or their respective packaging material, except markings,
if any, that are required by law or markings appearing on
VIASYSTEMS Components (as defined below).
3. Components; Tooling.
(a) [*]
(b) METAWAVE Supplied Components. METAWAVE may supply
components to VIASYSTEMS, at VIASYSTEMS' expense, upon the
written consent of VIASYSTEMS. Such components, including
provision for failed parts, shall be delivered to VIASYSTEMS not
later than [*] prior to the scheduled Delivery Date for the
related Products to METAWAVE. Should METAWAVE be unable to meet
such delivery requirements, METAWAVE may, at its option, request
VIASYSTEMS to either (i) ship Products to METAWAVE absent the
supplied parts on or after [*] from the scheduled Delivery Date
or (ii) hold the Products pending receipt of such components from
METAWAVE. Under these circumstances METAWAVE will give written
notification to VIASYSTEMS prior to the scheduled Delivery Date,
and VIASYSTEMS may invoice METAWAVE for such Products on or after
[*] from the scheduled Delivery Date, or on such other terms as
equitably agreed by the parties hereto. [*].
(c) [*]
(d) Title to Consigned Inventory Supplied by METAWAVE. All
components furnished by METAWAVE shall remain METAWAVE's property
and be kept segregated. VIASYSTEMS agrees to be responsible for
any loss or damage to such components while in VIASYSTEMS'
possession or under VIASYSTEMS' control. METAWAVE may inspect,
inventory, and authenticate the amount of components that are
furnished under this Agreement during VIASYSTEMS' normal business
hours so long as such activities do not unreasonably interfere
with VIASYSTEMS' business. VIASYSTEMS shall provide METAWAVE
reasonable access to the premises wherein all such components are
located. [*].
(e) [*]
4. Product Shipment, Delivery and Inspection.
(a) Shipments.
(i) All Products delivered pursuant to the terms of this
Agreement shall be packaged in accordance with packaging
instructions provided by METAWAVE and shall include a complete
packlist and all test data as required in the Product
Specification. If such instructions are not provided by METAWAVE
for a specific Product, the Product shall be suitably packed for
shipment to avoid damage. Each box and every pallet of the
Product shall be marked for shipment with the end customer name,
end customer purchase order, cell site name, ship to address and
any other specific information as specified on the Purchase
Order. All orders must be shipped complete. Any partial
shipments must be approved in writing by METAWAVE. Upon shipment
of the Product, VIASYSTEMS will send a copy of the packlist,
applicable Product serial numbers, the freight carrier and
waybill reference number (all in electronic format) to METAWAVE
Order Entry to confirm shipment.
(ii) The Product will be shipped to METAWAVE's destination
specified in the applicable Purchase Order, and received by
METAWAVE [*] to the Delivery Date. The Delivery Date will be
deemed to occur upon shipment [*], at which time risk of loss and
title will pass to METAWAVE. All freight, insurance and other
shipping expenses will be paid by METAWAVE, as well as any
special packing expenses approved in writing by METAWAVE and not
included in the original price quotation for the Products. [*].
(b) [*]
(c) Product Inspection and Acceptance. The Products delivered
by VIASYSTEMS will be inspected and tested as required by
METAWAVE within [*] following the Delivery Date or [*] (the
"Acceptance Period"). If Products are found to be defective in
material or workmanship and/or fail to meet the Specifications,
METAWAVE may reject such Products during the Acceptance Period.
Products not rejected during the Acceptance Period will be deemed
accepted. METAWAVE may return rejected Products upon receipt of
a Return Material Authorization ("RMA") number from VIASYSTEMS.
[*].
5. In Market Spares Support, Refurbished Product, After
Warranty Repair.
(a) [*]
(b) VIASYSTEMS will maintain established procedures for the
repair and refurbishment of returned Product held as B Stock
Inventory. METAWAVE shall provide on the date hereof its current
procedures for repair and refurbishment of returned Product.
VIASYSTEMS will maintain B Stock Inventory in a separate
inventory location and offer B Stock Inventory to fulfill orders
for METAWAVE engineering use, or warranty replacement after the
Acceptance Period.
(c) VIASYSTEMS will repair METAWAVE Product after the warranty
period expires at the reasonable request of METAWAVE. METAWAVE
will pay the cost of repair. VIASYSTEMS will not repair the
Product until approval of the estimated cost is received from
METAWAVE. VIASYSTEMS will maintain the capability to repair or
replace Product for [*] after the Product is discontinued, or if
earlier, through the remaining term of this Agreement, and during
such period METAWAVE will be entitled to make a final lifetime
buy of such Products at the prices established pursuant to this
Agreement, with delivery schedules for such purchase to be
negotiated by the parties at the time of order placement.
6. Payment Terms, Additional Costs and Price Changes.
(a) Payment Terms. Payment for any products, services or other
costs to be paid by METAWAVE hereunder are due [*] from the date
of invoice for Products and shall be made in lawful U.S.
currency.
(b) Additional Costs.
(i) Duties and Taxes. All prices quoted are exclusive of
federal, state and local excise, sales, use and similar duties
and taxes, and [*] shall be responsible for all such items.
(ii) [*]
(c) Price; Price Changes. The initial purchase prices for the
Products identified on Exhibit A hereto are set forth on Exhibit
B hereto. The initial purchase price for any new Product and the
purchase price for any significant change or re-design to an
existing Product shall be established by mutual good faith
agreement of the parties and shall be based upon [*].
(i) [*]
(ii) [*]
(iii) [*]
(d) Regular Business Reviews. The parties will have regular
business reviews, as mutually agreed, to review the Costs and
prices of the Products, Xxxx of Materials, Inventory strategy,
cost reduction plans, quality, Forecasts and delivery performance
and to mutually develop any modifications that may be necessary.
7. License Grants; Ownership Rights.
(a) Nonexclusive License. During the term of this Agreement,
VIASYSTEMS shall be deemed to have been granted by METAWAVE a
[*], to use that part of METAWAVE's Intellectual Property
required to manufacture the Products for sale to METAWAVE
pursuant to the terms of this Agreement. [*].
(b) Software. All METAWAVE owned software that METAWAVE
provides to VIASYSTEMS under the license set forth in this
Section 7 is and shall remain the property of METAWAVE.
VIASYSTEMS shall have a [*] this software during the term of this
Agreement solely for the purpose of manufacturing Product for
sale to METAWAVE pursuant to the terms of this Agreement. All
software developed by VIASYSTEMS to support the process tooling
or otherwise shall be and remain the property of VIASYSTEMS
unless funded by METAWAVE, in which case such software shall be
owned by METAWAVE and VIASYSTEMS shall assign all its right,
title and interest in such software to METAWAVE and shall
cooperate with METAWAVE, at METAWAVE's expense, before and after
the termination of this Agreement, to permit METAWAVE to obtain
and enforce the full benefits, enjoyment, rights and title
throughout the world in such software. [*].
(c) Intellectual Property Rights. Except as set forth in
Sections 6(a) and 6(b), each party shall retain sole ownership
of, and all rights to, any Intellectual Property of any kind
previously owned by that party or created solely by that party.
(d) Trademarks. In consideration of the fees set forth herein,
METAWAVE further grants to VIASYSTEMS a non-exclusive license to
use the Trademarks on and in connection with the manufacture of
the Products, and for this purpose to affix, subject to
METAWAVE's prior written approval, the Trademarks to or on the
Products. Such trademark license shall expire or terminate upon
the expiration or termination of this Agreement. The Trademarks
may only be used in association with the manufacture and
distribution of the Products pursuant to the terms of this
Agreement. Any and all uses of the Trademarks shall be subject
to the prior written approval of METAWAVE. VIASYSTEMS shall not
remove trademark notices from any Product without the prior
written consent of METAWAVE. VIASYSTEMS shall not use the name,
Trademarks or logos associated with the Products in its business
name.
8. Confidential Information.
(a) Nondisclosure and Nonuse. Each party shall treat as
confidential all Confidential Information of the other party,
shall not use such Confidential Information except as set forth
in this Agreement, and shall use commercially reasonable efforts
not to disclose such Confidential Information to any third party.
Without limiting the foregoing, each of the parties shall use at
least the same degree of care which it uses to prevent the
disclosure of its own confidential information of like importance
to prevent the disclosure of Confidential Information disclosed
to it by the other party under this Agreement. Each party shall
disclose Confidential Information of the other party only to its
directors, officers, employees, and consultants who are required
to have such information in order for such party to carry out the
transactions contemplated by this Agreement. Each party shall
promptly notify the other party of any actual or suspected misuse
or unauthorized disclosure of the other party's Confidential
Information.
(b) Exceptions. Notwithstanding the above, neither party shall
have liability to the other with regard to any Confidential
Information of the other which the receiving party can prove:
(i) was in the public domain at the time it was disclosed or has
entered the public domain through no fault of the receiving
party;
(ii) was known to the receiving party, without restriction, at
the time of disclosure, as demonstrated by files in existence at
the time of disclosure;
(iii) is disclosed with the prior written approval of the
disclosing party;
(iv) was independently developed by the receiving party without
any use of the Confidential Information by employees of the
receiving party who had no access to the Confidential
Information, as demonstrated by files created at the time of such
independent development;
(v) becomes known to the receiving party, without restriction,
from a source other than the disclosing party without breach of
this Agreement by the receiving party and otherwise not in
violation of the disclosing party's rights; or
(vi) is disclosed pursuant to the order or requirement of a
court, administrative agency, or other governmental body of
competent jurisdiction; provided, however, that the receiving
party shall provide prompt notice of such court order or
requirement to the disclosing party to enable the disclosing
party to seek a protective order or otherwise prevent or restrict
such disclosure.
(c) Return of Confidential Information. Upon expiration or
termination of this Agreement, each party shall promptly return
all Confidential Information of the other party. In addition,
each party shall, upon written request of the other party, return
Confidential Information of such other party.
(d) Remedies. Any breach of the restrictions contained in this
Section 8 is a breach of this Agreement which may cause
irreparable harm to the nonbreaching party. Any such breach
shall entitle the nonbreaching party to injunctive relief in
addition to all legal remedies.
(e) Confidentiality of Agreement. Each party shall be entitled
to disclose the existence of this Agreement, but agrees that the
terms and conditions of this Agreement shall be treated as
Confidential Information and shall not be disclosed to any third
party; provided, however, that each party may disclose the terms
and conditions of this Agreement:
(i) as required by any court or other governmental body of
competent jurisdiction;
(ii) as otherwise and to the extent required by law (including
the federal securities laws and regulations promulgated
thereunder);
(iii) to legal counsel of the parties;
(iv) in confidence, to accountants, banks, and financing sources
and their advisors;
(v) in connection with the enforcement of this Agreement or
rights under this Agreement; or
(vi) in confidence, in connection with an actual or proposed
merger, acquisition, or similar transaction.
9. Indemnity.
(a) METAWAVE Indemnification. METAWAVE shall indemnify, defend
and hold harmless VIASYSTEMS and its officers, directors,
employees and agents from any loss, claim, cost or damage,
including reasonable attorney and accountant's fees, arising out
of any claim, action, bodily injury and/or property damage based
on [*]; provided that:
(i) METAWAVE is given prompt written notice of the such claim or
action and complete authority for the defense or settlement of
same (provided that METAWAVE shall not enter into any settlement
without the prior written consent of VIASYSTEMS, which consent
shall not be unreasonably withheld), on the understanding that in
all events VIASYSTEMS shall have the right at its own expense to
participate in such defense or settlement through counsel of its
own choosing;
(ii) VIASYSTEMS provides such information and assistance in the
defense or settlement of the claim as may be reasonably
requested by METAWAVE;
(iii) VIASYSTEMS complies with any settlement or court order
made in connection with any such claim; and
(iv) METAWAVE shall not be responsible for any cost, expense or
compromise incurred or made by VIASYSTEMS without METAWAVE's
prior written consent, such consent not to be unreasonably
withheld.
(b) METAWAVE Intellectual Property Infringement Indemnity.
METAWAVE shall indemnify, defend and hold harmless VIASYSTEMS and
its officers, directors, employees and agents from any loss,
claim, cost or damage, including reasonable attorney and
accountant's fees, arising out of any suit or proceeding based on
a claim that [*], provided that:
(i) the claim arises as a result of [*] under this Agreement;
(ii) METAWAVE is given prompt written notice of the such claim or
action and complete authority for the defense or settlement of
same (provided that METAWAVE shall not enter into any settlement
without the prior written consent of VIASYSTEMS, which consent
shall not be unreasonably withheld), on the understanding that in
all events VIASYSTEMS shall have the right at its own expense to
participate in such defense or settlement through counsel of its
own choosing;
(iii) VIASYSTEMS provides such information and assistance in
the defense or settlement of the claim as may be reasonably
requested by METAWAVE;
(iv) VIASYSTEMS complies with any settlement or court order made
in connection with any such claim;
(v) METAWAVE provides prompt notice to VIASYSTEMS if METAWAVE
becomes aware that any Product or portion thereof (or the
manufacturing thereof) infringes any copyright, mask work,
patent, or trade secret, whether foreign or domestic; and
(vi) METAWAVE shall not be responsible for any cost, expense or
settlement incurred or made by VIASYSTEMS without METAWAVE's
prior written consent, such consent not to be unreasonably
withheld.
[*]
(c) VIASYSTEMS Indemnification. VIASYSTEMS shall indemnify,
defend and hold harmless METAWAVE and its officers, directors,
employees and agents from any loss, claim, cost or damage, [*],
arising out of any claim, action, bodily injury and/or property
damage based on [*], provided that:
(i) VIASYSTEMS is given prompt written notice of the such claim
or action and complete authority for the defense or settlement of
same (provided that VIASYSTEMS shall not enter into any
settlement without the prior written consent of METAWAVE, which
consent shall not be unreasonably withheld), on the understanding
that in all events, METAWAVE shall have the right at its own
expense to participate in such defense or settlement through
counsel of its own choosing;
(ii) METAWAVE provides such information and assistance in the
defense or settlement of the claim as may be reasonably requested
by VIASYSTEMS;
(iii) METAWAVE complies with any settlement or court order
made in connection with any such claim; and
(iv) VIASYSTEMS shall not be responsible for any cost, expense or
settlement incurred or made by METAWAVE without VIASYSTEMS' prior
written consent, such consent not to be unreasonably withheld.
This Section and Section 10(f) state the entire liability of
VIASYSTEMS with respect to all claims, damages, demands and loss
whatsoever from or in respect of the infringement, violation or
misappropriation of any intellectual or industrial property or
other proprietary right of any third person.
10. Warranty; Insurance and Disclaimer; Limitation of Liability.
(a) VIASYSTEMS warrants that the Products as delivered will [*].
(b) VIASYSTEMS will obtain and maintain during the term of this
Agreement, in addition to insurance in such amounts as is [*].
VIASYSTEMS shall provide METAWAVE with ten days' prior written
notice of material changes, cancellations or renewals of such
policy. Subject to the other provisions of this Agreement,
VIASYSTEMS covenants that during the term of this Agreement, it
will at all times be properly insured in accordance with
applicable law.
(c) VIASYSTEMS will [*] within [*] after notice of such non-
compliance. [*].
(d) These warranties shall not apply to [*], VIASYSTEMS, or its
Affiliates, subcontractors or designees) or which shall have been
subject to [*].
(e) VIASYSTEMS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PRODUCTS MANUFACTURED UNDER THIS AGREEMENT,
AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT
LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(f) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR
[*].
11. Contingency Plan. By [*], the parties hereto will jointly
develop and mutually agree upon a written plan (a "Contingency
Plan") that addresses their plans on how VIASYSTEMS will continue
to perform its obligations under this Agreement in case of an
unforeseen catastrophe, including a force majeure condition, or
any other condition in which VIASYSTEMS will be unable to produce
and ship Product for [*]. The Contingency Plan will identify
VIASYSTEMS' alternative manufacturing location(s), if any, and
include the estimated time for the implementation of the
Contingency Plan and production of Product.
12. Term and Termination.
(a) Term. This Agreement shall become effective on the date of
this Agreement and shall continue for a period of [*]; thereafter
this Agreement shall be extended automatically at the end of the
initial term or subsequent terms for up to [*] so long as
VIASYSTEMS has satisfactorily achieved pricing, delivery and
quality performance requirements (as reasonably established by
the parties) during the preceding twelve-month period.
(b) Termination for Cause.
(i) Either party may terminate this Agreement at any time if (A)
if the other party makes a general assignment for the benefit of
creditors, or (B) if there are instituted by the other party
proceedings in bankruptcy or under any insolvency or similar law
or for reorganization, receivership or dissolution or such a
proceeding is commenced against the other party and is not set
aside within ninety (90) days of its commencement.
(ii) In the event of a material breach of this Agreement, the non-
defaulting party may notify the defaulting party of such default
within 30 days after the occurrence thereof. Such notice will
specify in reasonable detail any such default. Upon receipt of
such notice, the parties shall meet and jointly develop, in good
faith, an action plan (the "Action Plan") as soon as reasonably
practicable but in no event later than 30 days after the
defaulting party's receipt of the notice of default. The Action
Plan shall set forth the steps to be implemented to enable the
defaulting party to cure the default and prospectively comply
with the terms and conditions of this Agreement. The defaulting
party shall implement the Action Plan as soon as reasonably
practicable but in no event later than 90 days after the Action
Plan has been mutually agreed to by the parties or within such
longer period as may be specified in the Action Plan. If the
defaulting party does not comply with the terms of the Action
Plan, the non-defaulting party may terminate this Agreement, in
addition to any other rights and remedies it may have, at law or
at equity.
(c) Termination Liability. Neither party shall be liable in any
manner on account of the termination or cancellation of this
Agreement. The rights of termination and cancellation as set
forth herein are absolute. Both METAWAVE and VIASYSTEMS are
aware of the possibility of expenditures necessary in preparing
for performance hereunder and the possible losses and damages
which may occur to each in the event of termination or
cancellation. Both parties clearly understand that neither shall
be liable for damages of any kind (including but not limited to
special, incidental or consequential damages) by reason of the
termination or cancellation of this Agreement.
(d) Obligations Upon Termination. The termination or expiration
of this Agreement shall in no way relieve either party from its
obligations to pay the other any sums accrued hereunder prior to
such termination or expiration. Upon termination or expiration,
METAWAVE shall be responsible for the Products and Inventory in
existence at the date of such termination or expiration in the
same manner as for cancellation as set forth in Section 4(b).
(e) Termination of Exclusivity. METAWAVE's obligation to
exclusively use VIASYSTEMS during the term of this Agreement, as
specified in Section 2(a), may be terminated by written notice
delivered by METAWAVE to VIASYSTEMS in the event:
(i) the Defect Threshold, as reported by VIASYSTEMS to METAWAVE
within [*] after each fiscal quarter, is exceeded for [*]; or
(ii) VIASYSTEMS' [*], as reported by VIASYSTEMS to METAWAVE
within [*] after VIASYSTEMS files the applicable financial
statements with the Securities and Exchange Commission, is
negative for [*].
The foregoing termination right shall expire unless exercised
within [*] after such right accrues, provided that the failure to
exercise such right shall not affect the ability of METAWAVE to
exercise any newly-accrued termination right in the future.
(f) [*]
(g) Survival of Certain Provisions. Notwithstanding anything to
the contrary in this Agreement, the following Sections shall
survive termination of this Agreement: 1, 7(c), 8, 9, 12(g), and
13.
13. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of the parties or
their respective successors and assigns. Any amendment or waiver
effected in accordance with this Section 13(a) shall be binding
upon the parties and their respective successors and permitted
assigns.
(b) Successors and Assigns. Neither METAWAVE nor VIASYSTEMS
shall assign any of its rights, obligations or privileges (by
operation of law or otherwise) hereunder without the prior
written consent of the other party, which shall not be
unreasonably withheld, provided that (i) VIASYSTEMS may delegate
its obligations hereunder to one or more direct or indirect
wholly-owned subsidiaries of VIASYSTEMS and (ii) METAWAVE or
VIASYSTEMS, as the case may be, may assign this Agreement to any
person acquiring all or substantially all of the assets or stock
of such party; provided, further, that notwithstanding any such
assignment, the assignor shall remain liable for the performance
of all of its obligations hereunder. Subject to the foregoing,
the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective
successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(c) Governing Law. This Agreement and all acts and transactions
pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance
with the laws of the State of Washington, without giving effect
to principles of conflicts of law.
(d) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all
of which together shall constitute one instrument.
(e) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
(f) Notices. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt,
when delivered personally or by courier, overnight delivery
service or confirmed facsimile, or forty-eight (48) hours after
being deposited in the regular mail as certified or registered
mail (airmail if sent internationally) with postage prepaid, if
such notice is addressed to the party to be notified at such
party's address or facsimile number as set forth below, or as
subsequently modified by written notice.
(g) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties
agree to renegotiate such provision in good faith, in order to
maintain the economic position enjoyed by each party as close as
possible to that under the provision rendered unenforceable. In
the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance
of the Agreement shall be interpreted as if such provision were
so excluded and (iii) the balance of the Agreement shall be
enforceable in accordance with its terms.
(h) Entire Agreement. This Agreement is the product of both of
the parties hereto, and constitutes the entire agreement between
such parties pertaining to the subject matter hereof, and merges
all prior negotiations and drafts of the parties with regard to
the transactions contemplated herein. Any and all other written
or oral agreements existing between the parties hereto regarding
such transactions are expressly canceled.
(i) Independent Contractors. The relationship of VIASYSTEMS and
METAWAVE established by this Agreement is that of independent
contractors, and nothing contained in this Agreement will be
construed (i) to give either party the power to direct and
control the day-to-day activities of the other, (ii) to
constitute the parties as partners, joint venturers, co-owners or
otherwise as participants in a joint or common undertaking, or
(iii) to allow either party to create or assume any obligation on
behalf of the other for any purpose whatsoever.
(j) Force Majeure. If the performance of this Agreement or any
obligations hereunder is prevented, restricted or interfered with
by reason of fire or other casualty or accident, strikes or labor
disputes, war or other violence, any law, order, proclamation,
regulation, ordinance, demand or requirement of any government
agency, or any other act or condition beyond the reasonable
control of the parties hereto, the party so affected upon giving
prompt notice to the other parties shall be excused from such
performance during such prevention, restriction or interference.
[Signature page follows.]
The parties have executed this Agreement as of the date
first set forth above.
METAWAVE: VIASYSTEMS:
METAWAVE COMMUNICATIONS VIASYSTEMS, INC.
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxxxx
(print) (print)
Title:Chief Financial Officer Title:EVP-Business Development
Address: 00000 Xxxxxxx Xxxx XX Address:9825 S W Sunshine Court
Redmond, WA 98052 Xxxxxxxxx, XX 00000
Copy of notices to: Copy of notices to: Vice
Xxxxx Xxxxxxx, VP Global President - Sales
Manufacturing Fax Number: (000) 000-0000
Fax Number: (000) 000-0000 Copy of notices to: Vice
And to General Counsel President - Sales
Fax No.: (000) 000-0000 (000) 000-0000
Exhibit A
Products
[*]
The Products identified on this Exhibit A, in the form appended
to the Agreement on April 1, 2001, constitute all of the current
Products of METAWAVE, all of which are currently manufactured at
METAWAVE's manufacturing facilities located in Redmond,
Washington, and Taipei, Taiwan. VIASYSTEMS is acquiring the
Redmond, Washington manufacturing facility concurrently with the
execution of this Agreement, and will hereafter acquire the
Taipei, Taiwan manufacturing facility, with the closing of the
latter acquisition expected to be completed within [90 day] from
the date of this Agreement. The Products denoted above by an
asterisk represent the Products currently manufactured at
METAWAVE's Taipei, Taiwan manufacturing facility. This Agreement
will become effective as to such Products immediately upon the
consummation of the purchase of the Taipei, Taiwan manufacturing
facility by VIASYSTEMS. During the interim period prior to such
purchase, METAWAVE will continue to manufacture all of such
Products internally at the Taipei, Taiwan manufacturing facility.
The Agreement shall become effective as to all Products not
denoted by an asterisk immediately.
Exhibit B
Pricing
See attachment
Prior to the closing of the purchase and sale of the
manufacturing assets of Metawave's Taiwan subsidiary ("Taiwan
Operations") as contemplated by Section 10.7 of the Asset
Purchase Agreement, Viasystems will verify that the [*] as
previously delivered to Viasystems (the "Projected Demand"). In
the event such [*], then the [*] as set forth above will be
negotiated in good faith and agreed to among the parties to [*].
Exhibit C
Quality Metrics
(1) [*] at each test point in the manufacturing process,
(2) [*] Per Unit
(3) [*] issued,
(4) [*] received,
(5) Test results from [*] to be tested.
(6) [*] in both [*]
(7) Ongoing status of [*].
