Exhibit 10.22
JOINT MARKETING AGREEMENT
This JOINT MARKETING AGREEMENT is entered into this 14th day of June, 1995
("Effective Date") by and between XXXXXXXX, INC., a Minnesota corporation
("XXXXXXXX"), and MENTOR GRAPHICS CORPORATION, an Oregon corporation ("MENTOR
GRAPHICS").
RECITALS
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1. XXXXXXXX has developed and is currently testing and producing materials
known as ViaGrid/TM/.
2. MENTOR GRAPHICS is a world leader in computer-aided design of
electronic circuitry.
3. The parties wish to work together to develop electronic packaging
designs on standard ViaGrid/TM/ and custom ViaGrid/TM/ materials produced by
XXXXXXXX.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, the parties agree as follows:
Section 1. Definitions.
1.1 "Approved Account" means those companies designated on Exhibit A as
approved accounts and such other companies agreed to by XXXXXXXX and MENTOR
GRAPHICS in writing.
1.2 "Excluded Account" means those companies designated on Exhibit A as
Excluded Accounts which shall be excluded from the application of the terms of
this Agreement unless agreed by XXXXXXXX in writing.
1.3 "Production Units" means those non-Prototype ViaGrid/TM/ units
accepted by the Approved Account to be used in a product.
1.4 "Program" means production using ViaGrid/TM/ with a design tested and
accepted by the Approved Account under the terms of this Agreement.
1.5 "Prototype" means those ViaGrid/TM/ units that are produced for an
Approved Account's internal verification engineering and/or manufacturing to
prove the design and manufacturing processes associated with a product.
1.6 "Royalty Product" means any construction of ViaGrid/M/ that is
produced for an Approved Account by XXXXXXXX utilizing a design tested and
accepted by the Approved Account during the term of this Agreement or a
derivative of such design for the same part, purpose and platform and pursuant
to the same Program with the Approved Account, provided MENTOR GRAPHICS has
contributed to the establishment of the Approved Account and its relationship
with XXXXXXXX pursuant to the terms of this Agreement by (a) establishing
ViaGrid/TM/ in the specifications of the design and the design results in a
ViaGrid/TM/ solution; (b) designing a Prototype and the design results in a
ViaGrid/TM/ solution; (c) converting a Prototype design to a Production Unit
design; or (d) any combination of the above.
1.7 "ViaGrid/TM/" means a dielectric, polymeric film material carrying one
or more copper conductive layers and one or more resist layers with vias. Supply
of ViaGrid/TM/ with vias smaller than 3 mil will be limited by XXXXXXXX'x
capacity and other commitments.
Section 2. COOPERATION.
2.1 The parties will work together to develop electronic packaging designs
on standard ViaGrid/TM/ and custom ViaGrid/TM/ materials during the term of this
Agreement.
2.2 To assure a continuous and free exchange of information regarding
design opportunities, the parties hereby establish a Joint Review Board of equal
members from each party at least one technically trained and experienced
employee from each party ("Joint Review Board"). The Joint Review Board shall
meet as often as appropriate to review and approve design opportunities,
identify and agree on additional Approved Accounts and carry out its other
obligations specified in this Agreement. Action by the Joint Review Board shall
be unanimous. Each party shall bear its own costs and expenses in connection
with the meetings of the Joint Review Board. The Marketing Liaisons identified
in Section 2.3 may designate other company representatives from time to time to
act as Joint Review Board members by written notice to the other party.
2.3 Xxxxx XxXxx shall be XXXXXXXX'x designated person responsible for
marketing and X. Xxxxx, as well as additional people designated by XXXXXXXX,
shall be the designated persons responsible for the manufacturing process and
design implementation. The designated account manager of MENTOR GRAPHICS and
Xxxxxxx Xxxx, as well as additional people designated by MENTOR GRAPHICS, will
be the designated persons responsible for fulfilling MENTOR GRAPHICS'
obligations under this Agreement. In the event of changes in any responsible
person designated by either party under this Section 2.3 ("Marketing Liaisons"),
such party shall promptly notify the other party of the change and identify a
replacement.
Section 3. Mentor Graphics' Responsibilities.
3.1 MENTOR GRAPHICS shall use reasonable efforts to (a) recommend
ViaGrid/TM/ to Approved Accounts for applicable design
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solutions and (b) deliver design expertise to the Approved Accounts to develop
electronic packaging designs on ViaGrid/TM/ materials which satisfy the Approved
Account's specifications.
3.2 MENTOR GRAPHICS shall use reasonable efforts to produce and submit for
publication three articles for trade publications that describe the relationship
between XXXXXXXX and MENTOR GRAPHICS and the application successes both parties
have achieved together.
3.3 MENTOR GRAPHICS shall focus its efforts under this Agreement on
designers and design services for application in PCMCIA, disk drive, and density
patch products for memory devices and may pursue designs in any other segment
for which ViaGrid/TM/ and the subject matter of this Agreement may have
application.
Section 4. Xxxxxxxx'x Responsibilities.
4.1 XXXXXXXX shall manage the production and assembly and material
delivery channels to produce the ViaGrid/TM/ product utilizing the Approved
Account's design.
4.2 XXXXXXXX shall coordinate sales between MENTOR GRAPHICS and XXXXXXXX'x
electronic packaging partner and delivery of Prototypes to the Approved
Accounts.
4.3 XXXXXXXX and MENTOR GRAPHICS agree that any Approved Account may use
the design kit developed by them through the ARPA Consortium for standard
ViaGrid/TM/. MENTOR GRAPHICS shall use its current tool systems for all other
designs (i.e., MCM station).
4.4 XXXXXXXX will refer customer interest in tools for design to MENTOR
GRAPHICS.
4.5 XXXXXXXX shall use reasonable efforts to promote and position Mentor
Graphics with the Approved Accounts as its primary design vendor for ViaGrid/TM/
solutions.
Section 5. Design Services.
5.1 MENTOR GRAPHICS shall, upon its acceptance of an engagement for
services, provide design assistance to the Approved Accounts to the extent
requested in a written statement of work ("SOW") from XXXXXXXX or a SOW
developed by a MENTOR GRAPHICS professional services representative with an
Approved Account. The Joint Review Board shall review and approve the design
services targeting the ViaGrid/TM/ material, including the costs of such
services. A major criteria for determining the costs is the mutual desire of the
parties to present a price point that enables the Approved Account to bring its
product implemented in ViaGrid/TM/ to market quickly and affordably. As of the
Effective Date, the parties have identified a rate for design
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services of $135 per hour as meeting this criteria. This targeted rate,
however, may be changed by the Joint Review Board consistent with the major
criteria above, for reasons such as (a) existing business arrangements with a
customer; (b) then current market conditions; (c) changes in MENTOR GRAPHICS'
cost structure; or (d) the likelihood of resulting royalties. MENTOR GRAPHICS
shall provide the Joint Review Board with an estimate of total fees and expenses
to be incurred for the design services. Services shall start subsequent to
approval by the Joint Review Board, execution of applicable agreements, and
receipt and acceptance of a purchase order. Services shall be provided by
MENTOR GRAPHICS to Approved Accounts under terms similar to the MENTOR GRAPHICS
Professional Services Agreement and SOW attached as Exhibits B and C,
respectively. All such design services shall be on standard or custom
ViaGrid/TM/ materials.
5.2 If the Approved Account contracts with XXXXXXXX directly, XXXXXXXX and
MENTOR GRAPHICS shall sign an SOW in the form of Exhibit X. XXXXXXXX shall pay
MENTOR GRAPHICS $135 per hour plus reasonable travel-related expenses incurred
in connection with such design services. MENTOR GRAPHICS shall invoice XXXXXXXX
for such services on a monthly basis. Payment terms shall be net 30 days after
receipt by XXXXXXXX of MENTOR GRAPHICS' invoice. The services specified in the
SOW shall be subject to the terms of this Agreement and the terms of Exhibit B
to the extent consistent with this Agreement. In the event of any conflict in
such terms, the terms of this Agreement shall control.
5.3 SERVICES AND THE RESULTS ARE PROVIDED "AS IS" AND MENTOR GRAPHICS
MAKES NO WARRANTY WITH REGARD TO SERVICES OR RESULTS, EITHER EXPRESS OR IMPLIED.
MENTOR GRAPHICS SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. MENTOR GRAPHICS IS NOT OBLIGATED TO
SUPPORT ANY SOFTWARE OR OTHER MATERIAL THAT IT PROVIDES UNDER THIS AGREEMENT.
5.4 EXCEPT AS PROVIDED IN SECTION 5.5, (A) NEITHER PARTY SHALL BE LIABLE
TO THE OTHER PARTY FOR ANY CLAIMS AGAINST IT BY ANY PARTY NOT A PARTY TO THIS
AGREEMENT, (B) NEITHER PARTY SHALL BE LIABLE FOR LOSS OF PROFITS, INTERRUPTION
OF SERVICE, OR FOR ANY OTHER SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES AND
(C) IN NO EVENT SHALL MENTOR GRAPHICS' LIABILITY TO XXXXXXXX FOR DAMAGES EXCEED
THE FEES AND ROYALTIES PAID UNDER THIS AGREEMENT FOR SERVICES PROVIDED
HEREUNDER.
5.5 Each party shall indemnify and hold the other party harmless from and
against all loss, claims, costs, expenses, damages and liabilities, including
reasonable attorneys' fees, which the other party may suffer or be required to
pay arising out of injuries to persons (including death) or damage to tangible
property solely and directly caused by the negligence or
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willful misconduct of the indemnifying party's agents or employees.
5.6 The provisions of Sections 2 and 3 of Exhibit B apply to the ownership
and licensing of any Intellectual Property developed under this Agreement (as
Intellectual Property is defined in Section 2.1 of Exhibit B), with the
following three exceptions. Any Intellectual Property which is embodied in
ViaGrid/TM/ or its manufacture ("ViaGrid/TM/ Technology") shall be the sole
property of XXXXXXXX and shall be transferred to XXXXXXXX pursuant to the
assignment provisions of Section 2.2 of Exhibit B. Intellectual Property which
is embodied in MENTOR GRAPHICS' software, tool set or related design services
(other than the design kit developed by MENTOR GRAPHICS and XXXXXXXX under the
ARPA Consortium, which is jointly owned) or in development processes, training
and documentation associated with such software, tool set and related design
services ("MG Technology") shall be the sole property of MENTOR GRAPHICS and
shall be subject to the licensing provisions of Exhibit B. Intellectual Property
which is not ViaGrid/TM/ Technology or MG Technology shall be jointly owned.
With respect to such jointly owned Intellectual Property either party may
utilize, use or exercise its undivided rights without the consent of the other
party and without accounting to the other party, provided that the parties shall
cooperate in the pursuit of any patent applications related to such jointly
owned Intellectual Property. If the patent application is pursued, the parties
shall agree upon the details for filing such protection and any enforcement
issues thereof at the given time.
Section 6. Royalty Payments and Reports.
6.1 As additional consideration for MENTOR GRAPHICS' services hereunder,
XXXXXXXX agrees to pay MENTOR GRAPHICS a royalty of $1.50 per square foot for
each design on custom ViaGrid/TM/ and $3.50 per square foot for each design on
standard ViaGrid/TM/ for each Royalty Product sold to an Approved Account during
a period, whichever is shorter, of (a) 5 years from initial production of the
Royalty Product; (b) the date this Agreement is terminated pursuant to Section
10.2 as a result of a breach by MENTOR GRAPHICS of a material provision of this
Agreement; or (c) the completion of the Program for the Royalty Product between
XXXXXXXX and the Approved Account. Royalties for Royalty Products shall begin to
accrue after XXXXXXXX or its subcontracted manufacturers begins shipping Royalty
Products to the Approved Account regardless of the date that the design is
initiated. All royalty payments shall be made on a quarterly basis as set forth
in Section 6.2 below.
6.2 Within 30 days after the end of each calendar quarter, XXXXXXXX shall
furnish MENTOR GRAPHICS with a written report setting forth the square footage
of each Royalty Product with respect to which any royalty payments are payable
under Section 6.1 and the amount of royalty payment payable with respect to that
Royalty Product; and the aggregate amount of all royalty
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payments payable under Section 6.1. XXXXXXXX shall use all reasonable efforts
to provide a preliminary report of royalty payments by the end of each calendar
quarter. The cut-off date for royalty data to be provided to MENTOR GRAPHICS
will be the 15th day of the last month of a quarter.
6.3 Notwithstanding anything contained herein to the contrary, no royalty
payment shall be due or payable under this Section 6 on Royalty Products which
are Prototypes that do not become Production Units, or Royalty Products which
are not accepted by the Approved Account within 90 days of the date of sale or
are returned by the Approved Account or Royalty Products which, after
acceptance, are recalled but not replaced by XXXXXXXX.
6.4 XXXXXXXX shall keep accurate records in sufficient detail to permit
MENTOR GRAPHICS to determine the amount of royalty payments payable hereunder.
On reasonable written notice from MENTOR GRAPHICS, XXXXXXXX shall permit such
records to be inspected by a MENTOR GRAPHICS' certified public accountant during
normal business hours, but only to the extent necessary to verify the amount of
royalty payments payable or accrued hereunder.
6.5 Except as provided in Section 6.1(b), this Section 6 shall survive any
termination or expiration of the Agreement.
Section 7. Confidentiality.
To assist in their performance under this Agreement the parties may
exchange certain information, including technical and marketing information,
which the disclosing party deems confidential. All confidential information
disclosed under this Agreement will be disclosed and treated in accordance with
the Confidential Information Exchange Agreement (CIEA) attached as Exhibit D.
Section 8. Non-Exclusivity.
8.1 Notwithstanding anything to the contrary herein, in the event (a)
MENTOR GRAPHICS fails to meet its obligations under this Agreement, any work
order with XXXXXXXX or SOW; (b) MENTOR GRAPHICS declines an engagement for
services proposed by XXXXXXXX or an Approved Account or (c) an Approved Account
has specified a design company other than MENTOR GRAPHICS after each party has
asserted reasonable efforts in converting such account, then XXXXXXXX may
contract with other design companies and shall have no liability to MENTOR
GRAPHICS with respect to any resulting design and no royalty obligation
hereunder.
8.2 In the event the XXXXXXXX members of the Joint Review Board do not
approve a design opportunity proposed by MENTOR GRAPHICS after discussion of all
relevant issues by the Joint Review Board and approval of such design
opportunity by the MENTOR GRAPHICS members of the Joint Review Board, XXXXXXXX
shall not independently solicit such design opportunity during the term of this
Agreement without allowing MENTOR GRAPHICS to participate
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in such opportunity under the terms of this Agreement including Section 8.1
above.
Section 9. Publicity.
9.1 XXXXXXXX and MENTOR GRAPHICS will jointly share products and
literature at the Design Show, IPC Show and SAE Show. A joint press release
announcing this Agreement will be approved by both parties and promptly released
by both parties.
9.2 XXXXXXXX shall publicly refer to MENTOR GRAPHICS as its EDA and design
partner. MENTOR GRAPHICS shall refer to XXXXXXXX as its materials and design
partner on high performance materials.
Section 10. Term and Termination.
10.1 The term of this Agreement shall be for a period of 24 months from
the Effective Date, subject to earlier termination as provided below. The
parties may extend the term of this Agreement by subsequent written agreement.
10.2 If either party defaults on or breaches any material provision of
this Agreement, the party not in default or breach shall have the right to
cancel this Agreement upon written notice provided the defaulting party does not
correct the default or breach within the applicable cure period. In the event
of a breach of the obligations of a party under this Agreement, the nonbreaching
party shall provide written notice to the breaching party setting forth, in
sufficient detail, a description of the breach and the applicable cure period.
If the breach is either party's breach of the confidentiality provisions, the
notice of breach shall provide for a cure period of not less than five days.
For all other types of breach, including without limitation the failure to pay
any amounts due in a timely manner, the notice of breach shall provide for a
cure period of not less than 30 days.
10.3 Either party may terminate this Agreement in the event that
proceedings for a reorganization, liquidation, bankruptcy or receivership are
filed or instituted against the other party.
10.4 At the end of the term of this Agreement, neither party will have any
liability to the other except with respect to any breach of any obligations
under this Agreement and except for any obligations under this Agreement which
by their terms continue after termination of this Agreement.
10.5 Termination or expiration of this Agreement shall have no effect on
XXXXXXXX'x obligations to make payment for services performed under this
Agreement or to pay royalties to the extent required under Section 6.
Section 11. Independent Parties.
Nothing in this Agreement is intended to create a joint venture,
partnership, corporation or other association between XXXXXXXX and MENTOR
GRAPHICS. Neither party to this Agreement
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has authority to act on behalf of the other or to incur any financial
obligations or liability on behalf of the other; if, despite such intention, a
claim arises against one of the parties based on actions of the other, the party
responsible for such actions will fully indemnify the party against whom such
claim is made. The provisions of this Section 11 shall survive termination of
this Agreement for any reason.
Section 12. Arbitration.
Any dispute between the parties arising out of or concerning the subject
matter of, or the respective rights or obligation of the parties under, this
Agreement shall be submitted to arbitration if it cannot be resolved by the
parties. If arbitration is requested by XXXXXXXX, the arbitration proceedings
shall be conducted in Wilsonville, Oregon in accordance with the rules of the
American Arbitration Association then in effect. If arbitration is requested by
MENTOR GRAPHICS, the arbitration proceeding shall be conducted in Minneapolis,
Minnesota, in accordance with the rules of the American Arbitration Association
then in effect. The arbitrator's award shall be final and binding and may be
enforced in any court of competent jurisdiction. The non-prevailing party shall
pay the prevailing party's costs and expenses (including reasonable attorneys'
fees) incurred in enforcing any such arbitration award.
Section 13. Governing Law.
This Agreement and the rights and obligations of the parties hereunder
shall be construed and interpreted in accordance with the laws of the State of
Oregon.
Section 14. Force Majeure.
Both parties to this Agreement shall be excused from the performance of
their obligations hereunder, and shall be excused for so long as such condition
continues, if such performance is prevented by conditions beyond the control of
the parties, such as acts of God, voluntary or involuntary compliance with any
regulation, law or order of any government, war, civil commotion, strike,
epidemic, failure or default of public utilities or common carriers, destruction
of production facilities or materials by fire, earthquake, storm or like
catastrophe.
Section 15. Notice Provisions.
Any notice required or permitted to be given hereunder shall be in writing
and any notice shall be deemed to have been given when delivered in person, by
fax, or three (3) days after the date upon which it is mailed, postage prepaid,
by certified or registered airmail, properly addressed to the addresses written
below:
If to SHELDAHL: Sheldahl, Inc.
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Fax No.: 000-000-0000
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If to MENTOR GRAPHICS: Mentor Graphics Corporation
0000 X.X. Xxxxxxxx Xxxx
Xxxxxxxx 00000
Xxxxxxxxxxx, XX 00000
Attn: General Counsel
Fax No.: 000-000-0000
Section 16. Assignments.
This Agreement is binding upon shall inure to the benefit of the parties
and their successors and assigns; provided that neither the rights nor the
obligations hereunder may be assigned by either party without the prior written
consent of the other party except to the assigning party's parent, subsidiary,
or other enterprise fifty percent or more of the voting power of which is owned
by such party.
Section 17. Modification.
No modification or any claimed waiver of any of the provisions of this
Agreement shall be effective unless in writing and signed by a duly authorized
officer of the party against whom such modification or waiver is sought.
Section 18. Entire Agreement; Exhibits.
18.1 This Agreement shall constitute the entire agreement of the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements between the parties related to the subject matter hereof.
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18.2 The following documents are attached to and made a part of this
Agreement:
Exhibit A Approved Accounts and Excluded Accounts
Exhibit B Mentor Graphics Professional Services Agreement
Exhibit C Mentor Graphics Statement of Work
Exhibit D Confidential Information Exchange Agreement
Section 19. Counterparts.
This Agreement may be signed in any one or more counterparts, each of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each party has caused a duly authorized representative
to execute this Agreement.
XXXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxx
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Its President
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MENTOR GRAPHICS CORPORATION
Professional Services Division
By /s/ Xxxxxxx X. Xxxxx
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Its V.P./General Manager
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MENTOR GRAPHICS CORPORATION
Corporate Contracts
By /s/ Xxxxxxx Xxxxx
---------------------------------
Its Director of Contracts
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