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ALL SECTIONS MARKED WITH TWO ASTERICKS ("**") REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
BY XXXX TECHNOLOGY, INC. AS PART OF A REQUEST FOR CONFIDENTIAL TREATMENT.
AGREEMENT
This agreement ("Agreement"), dated as of December 26, 1997, is entered
into by and between FUJITSU LIMITED, a Japanese Corporation ("Fujitsu"), and
XXXX TECHNOLOGY, INC., a Delaware corporation (the "Company").
RECITALS
A. Fujitsu and the Company are parties to a Development Agreement, dated as of
June 25, 1997 (the "Original Agreement"), as amended by an agreement
between Fujitsu and the Company dated September 29, 1997 (the "First
Amendment," and the Original Agreement as amended thereby, the "Development
Agreement"), pursuant to which the Company has agreed to develop a
microprocessor known as the Viper (the "Viper"). Defined terms used herein
without definition have the respective meanings set forth in the
Development Agreement.
B. Pursuant to the Development Agreement, the Company has agreed to deliver to
Fujitsu certain Deliverables on the schedule attached to the Development
Agreement as Exhibit A, including, without limitation, to deliver to
Fujitsu certain Architectural Specifications and a Chip RTL Model in
conformity with Milestone #3 of Exhibit B of the Development Agreement (the
"Subject Deliverables") on September 30, 1997.
C. The Company has delivered to Fujitsu the Subject Deliverables but the
Subject Deliverables were not in full conformity with Milestone #3 of
Exhibit B of the Development Agreement (as amended and restated as Appendix
2 of the First Amendment). Nonetheless, and in full satisfaction of the
Company's obligations with respect to Milestone #3 and Deliverable #3 of
Exhibit B of the Development Agreement (as amended and restated as Appendix
2 of the First Amendment), Fujitsu is willing to accept the non-conforming
deliverables attached hereto as Appendix 1 (the "Alternate Deliverable"),
provided that the Company agrees that (1) such acceptance will not affect
the Company's continuing obligations to develop Viper in accordance with
the Specifications, and otherwise on the terms and conditions, set forth in
the Development Agreement, and (2) Milestone #4 of Exhibit B (Schematics)
of the Development Agreement be amended and restated as attached hereto as
Appendix 2, all as set forth in this Agreement.
D. The Company and Fujitsu attached Target Specifications to the Original
Agreement as Exhibit C until such time as Final Specifications could be
agreed upon, and now wish to agree upon the specifications attached hereto
as Appendix 3 as the Final Specifications for all purposes of the
Development Agreement, in replacement of and substitution for the Target
Specifications.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
1. Delivery and Acceptance of Alternate Deliverable. The Company hereby
delivers the Alternate Deliverable to Fujitsu for acceptance. Subject to
and upon the terms and conditions of this Agreement, Fujitsu hereby accepts
the Alternate Deliverable in full
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satisfaction of the Company's obligations with respect to Milestone #3 and
Deliverable #3 of Exhibit B of the Development Agreement.
2. Limited Nature of Acceptance. The acceptance of the Alternate Deliverable
by Fujitsu shall not be deemed to modify in any respect the performance
specifications set forth in the Development Agreement (without limitation,
**) or the obligations of the Company under the Development Agreement.
3. Amendment of Milestone #3 (SCHEMATICS). Milestone #4 of Exhibit B to the
Development Agreement (pages 7/22, 8/22 and 9/22) is hereby amended and
restated in its entirety as attached hereto as Appendix 2.
4. Payment Terms. Fujitsu will make payment to the Company of the amount
specified in the Development Agreement for Deliverable #3 as provided in
Section 4.1(a) of the Development Agreement. The Company confirms that the
total amount of such payment is $4,400,000 and that no other amounts are
due or payable by Fujitsu to the Company at the present time under the
Agreement. Fujitsu agrees that such payment shall be deemed fully earned
upon the effectiveness of this Agreement and shall be non-refundable;
provided, however, that the Company agrees that nothing herein or in the
First Amendment shall limit the accrual of late delivery penalties through
the date of Fujitsu's acceptance as provided in Section 6.2 of the
Development Agreement, and for such purposes the parties agree that the
Milestone #2 Deliverable was delivered 77 days late and the Milestone #3
Deliverable was delivered 80 days late.
5. Final Specifications. The Company and Fujitsu hereby agree that the
specifications attached hereto as Appendix 3 shall be the Final
Specifications for all purposes of the Development Agreement, in
replacement of and substitution for the Target Specifications.
6. Representations and Warranties. Each party hereby represents and warrants
to the other that the execution and delivery by such party of this
Agreement have been duly authorized by all necessary corporate and other
action and do not and will not require any consent or approval of, notice
to or action by, any person (including any governmental agency) in order to
be effective and enforceable. The Development Agreement, as amended by this
Agreement, constitutes the legal, valid and binding obligation of such
party, enforceable against it in accordance with its terms, without defense
or counterclaim.
7. Reservation of Rights. The Company acknowledges and agrees that neither
Fujitsu's forbearance in exercising its rights in connection with the
delivery of the Alternate Deliverable nor the execution by Fujitsu of this
Agreement shall be deemed (i) to create a course of dealing or otherwise
obligate Fujitsu to forbear or execute a similar agreement under the same
or similar circumstances in the future, or (ii) to waive, relinquish or
impair any right of Fujitsu to future performance by the Company of the
Development Agreement strictly in accordance with its terms.
8. Miscellaneous.
(a) Except as herein expressly amended, all terms and conditions of the
Development Agreement are and shall remain in full force and effect.
All references to the
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Development Agreement shall henceforth refer to the Development
Agreement as amended hereby.
(b) This Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and assigns. No third party
beneficiaries are intended in connection with this Agreement.
(c) This Agreement shall be governed by and construed in accordance with
the law of the State of California (without regard to principles of
conflicts of laws). (d) This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
XXXX TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. (Kit) Xxxxxxx III
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Title: Chief Financial Officer
FUJITSU LIMITED
Matao Itoh for
By: /s/ Xxxxxxx Xxxxxxxx
Title: Group President,
Computer System Group
**
