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EXHIBIT 10.10
SUPPLY AGREEMENT
This Agreement (the "Agreement") is entered into this 7th day of
October, 1999 by and between Spectrian, Inc., Semiconductor Division, having its
office at 000 Xxxx Xxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, 00000, hereinafter
referred to as "SPECTRIAN"
and
Stanford Microdevices Inc., having its office at 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, XXX, hereinafter referred to as "SMI".
SPECTRIAN desires to sell, and SMI desires to buy, semiconductor wafers,
transistors, and capacitors to be manufactured by SPECTRIAN using proprietary
designs, pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE in consideration of these premises, and the mutual
promises and conditions in this Agreement, the parties agree as follows.
1. Scope of Agreement.
1.1 Subject to the terms and conditions contained in Section 14
of this Agreement, SMI and SPECTRIAN hereby will disclose Know-how as defined
below and Confidential information, as defined in Section 14 to have wafers,
transistors and capacitors made at SPECTRIAN's fabrication facility in
Sunnyvale, California, in accordance with the Wafer, Transistor, and Capacitor
Specifications set forth in Exhibit A, and to test such wafers, transistors and
capacitors, and to sell such wafers, transistors, and capacitors to SMI at the
prices established in Exhibit B.
"Know-how", when used in this Agreement, shall mean all of
SPECTRIAN designs, techniques, technology, trade secrets, proprietary
information and other confidential information disclosed by SPECTRIAN to SMI
pursuant to this Agreement, which SPECTRIAN and SMI jointly agree is necessary
for SPECTRIAN to produce wafers, transistors, and capacitors under this
Agreement.
1.2 SPECTRIAN shall provide the necessary support to train SMI
personnel in the assembly and test of transistors procured under this Agreement
in accordance with the transistor assembly documents listed in Exhibit D. This
transfer of assembly and test know-how shall occur not later than six months
after the signing of the Agreement, with a goal of three months.
1.3 [***]
1.4 SPECTRIAN and SMI mutually agree that from time to time and
upon the agreement of the parties, additional new products may be added to the
Agreement.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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1.5 [***]
2. License.
2.1 SPECTRIAN hereby grants SMI and its wholly owned subsidiaries
a worldwide non-exclusive and non-transferable marketing license to sell certain
finished discrete LDMOS transistor devices and dies identified by product
specifications attached to this Agreement, which shall be marketed under the SMI
label.
2.2 SPECTRIAN hereby grants SMI and its wholly owned subsidiaries
a worldwide, royalty-free, non-exclusive and non-transferable license to the
technology and Know-how necessary to assemble and test stand alone transistor
devices manufactured with wafers procured under this Agreement. No license shall
be granted to SMI with respect to the wafer fabrication process technology,
rather, SPECTRIAN will supply to SMI for assembly semiconductor dies on which
SPECTRIAN has fabricated the applicable transistor device. SPECTRIAN shall make
available to SMI LDMOS dies manufactured using processes and structures
developed by SPECTRIAN after the effective date of this Agreement in SPECTRIAN's
fab for power amplifier devices. In addition, SPECTRIAN shall provide SMI access
to all related LDMOS assembly and test technologies developed by SPECTRIAN and
deemed necessary by SMI to develop new transistor designs. Spectrian hereby
grants SMI and its wholly owned subsidiaries a non-exclusive and
non-transferable, royalty, worldwide free license to the intellectual property
listed in Exhibit E of the Agreement required for the assembly and test of
transistors using SPECTRIAN dice. The parties shall mutually agree on the
contents of Exhibit E, which will be defined by December 31, 1999; provided
that, should SMI use the intellectual property defined in Exhibit E with other
foundries' dice, then a future royalty agreement may be negotiated between
SPECTRIAN and SMI.
3. Payment.
3.1 SMI shall pay in United States Dollars for wafers supplied by
SPECTRIAN to SMI hereunder within [***] days after SMI receipt of an invoice
from SPECTRIAN which shall be submitted to SMI upon shipment.
4. Orders, Warranty and Claims.
4.1 SPECTRIAN shall supply wafers, transistors, and parts to SMI
in accordance with written purchase orders to be provided by SMI. Each purchase
order shall include the following:
(a) purchase order number;
(b) product name;
(c) manufacturing process;
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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(d) quantities;
(e) unit wafer, transistor, and/or parts prices and total
prices;
(f) desired shipment date (subject to Section 6 "DELIVERY
TIMES" below);
(g) delivery instructions; and
(h) any special requests or comments.
Subject orders shall become effective only upon the written acceptance
thereof by SPECTRIAN within 5 working days.
The terms of this Agreement shall prevail over any conflicting terms in
any order documents, invoices or similar documents exchanged between the parties
hereunder.
4.2 SMI shall place an annual purchase order with SPECTRIAN for
the finished transistor devices shown in Exhibit A to be sold to the merchant
market and for wafers to be utilized in manufacturing transistors for sale to
the merchant market. SMI and SPECTRIAN shall hold annual pricing negotiations
for the products shown in Exhibit A or more frequently as required to meet
specific demands of the merchant market.
4.3 SMI shall provide SPECTRIAN every month with a good faith
four (4) month rolling forecast of its wafer, transistors, and parts
requirements on a monthly basis, and SPECTRIAN shall use its best efforts to
make available to SMI sufficient fabrication, assembly and test capacity to meet
such forecast requirements. In addition to the status reports established under
Section 7 below, the parties shall provide one another with reasonable notice
about changes in desired shipping or production schedules, availability of
capacity or other similar situations. The forecast is considered as a firm order
for a period of thirty (30) days; changeable by [***] in the 31-59 day period,
and changeable as much as required in the period of 60 days or greater.
a. Any other provision of this Agreement notwithstanding,
if SPECTRIAN shall be delayed more than sixty (60) days in the production and
delivery of wafers, transistors or parts for any particular SMI purchase order,
regardless of cause, SMI may, at its reasonable discretion, provided that
SPECTRIAN is unable to provide a recovery program acceptable to SMI, cancel such
order effective upon written notice thereof to SPECTRIAN. Upon resubmission of
any such cancelled order by SMI and acceptance thereof by SPECTRIAN, SPECTRIAN
shall then use its best efforts to give a priority delivery date to such new
order. If SPECTRIAN delays production and delivery more than sixty (60) days
under three (3) or more SMI purchase orders in any six (6) months' period under
this Agreement, SMI may terminate this Agreement immediately by sending notice
of termination to SPECTRIAN.
b. SPECTRIAN gives warranty on workmanship and material
for [***] months. In case of warranty claims by SMI, SPECTRIAN's warranty is
limited to the replacement of wafers, transistors, and/or parts.
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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5. Product Support.
5.1 SPECTRIAN agrees to provide technical assistance and other
support to SMI as reasonably required. SPECTRIAN agrees to provide the
information necessary for SMI to generate technical sales data and marketing
collateral for the devices shown in Exhibit A. SMI shall be responsible for the
production of all sales literature and collateral.
6. Delivery Times.
6.1 Unless otherwise agreed to in writing by SMI, delivery times
upon acceptance of a SMI purchase order by SPECTRIAN shall be:
a) WAFERS - twelve (12) weeks for production wafers for
quantities up to 100 wafers, with the target to go down to eight (8) weeks in
2000; delivery times for quantities beyond 100 wafers are to be mutually agreed
upon.
b) TRANSISTORS - In accordance with the acknowledged
purchase orders.
c) CAPACITORS - In accordance with the acknowledged
purchase orders.
SPECTRIAN shall use its best efforts to achieve all delivery times on a
regular and consistent basis.
6.2 In the event of a third party suit or claim against SMI
and/or SPECTRIAN involving a Third Party Right (as defined in Section 16),
SPECTRIAN may, at its reasonable discretion and upon advice of its legal
counsel, suspend or terminate the production and supply of any wafers and
transistors to SMI if such continued production and supply would or could cause
SPECTRIAN to violate such Third Party Right. SPECTRIAN shall discuss any such
suspension or termination with SMI and shall give due opportunity for SMI to
satisfy the provisions of Section 16, prior to the implementation thereof. In
case SPECTRIAN interrupts production due to circumstances described hereinabove,
it shall provide reasonable assistance to SMI in order to re-establish
deliveries of wafers and transistors, if appropriate, by subcontracting to
another foundry.
7. Status Reports.
7.1 Upon request from SMI, SPECTRIAN shall provide SMI with
work-in-process information, in SMI content and format, status reports, with
projection of waferout and transistor completion dates.
7.2 Any deviations from acknowledged delivery dates due to
unforeseen manufacturing problems shall be reported to SMI within 3 working days
when such problems become apparent.
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8. Process Changes.
8.1 Either party may request the other party to accept changes in
the production process for wafers, provided, however, any material changes to
the production process for wafers that has been previously approved by SMI for
production of its wafers, including changes to procedures, flow or
specifications, may only be made if such changes are first approved in writing
by SMI, which approval shall not be unreasonably withheld.
8.2 Changes requiring written approval are major changes as
described in Exhibit C.
9. Ownership and Responsibility.
a. SPECTRIAN and SMI acknowledge that each party will own its
pre-existing technology, and any technology solely created by it. SPECTRIAN will
own any and all intellectual property developed solely by SPECTRIAN related to
semiconductor manufacturing, the die, packaging or internal matching of devices
covered by this agreement. Except as set forth above, all know-how and
inventions relating to the design of devices, device assembly, or internal
matching of devices jointly invented by the parties in the course of product
development efforts will be jointly owned and each party shall retain the right
to use and license such technology.
10. Discontinuation of Production.
a. SPECTRIAN agrees, upon notification to SMI that SPECTRIAN will
render obsolete or make a major fab process change, close the wafer fab, or
change ownership, to make available for purchase at the option of SMI that
quantity of wafers equal to SMI's past purchases or reasonably anticipated
future purchases under this Agreement, as the case may be, over a five (5) year
period of time. SPECTRIAN will provide notification at least 12 months in
advance of time of obsolescence or major process change. Delivery of wafers
ordered under this provision will be at a mutually agreeable rate but shall in
no case extend over a period greater than 12 months.
11. Spectrian Quality Inspection.
11.1 SPECTRIAN shall ship only such wafers, transistors or parts
as have passed visual inspection and electrical testing by SPECTRIAN, in
accordance with the latest approved revisions in effect of the specifications
set forth in Exhibit A.
11.2 SPECTRIAN shall process all wafers and dies delivered to SMI
in accordance with the latest approved revision level of SPECTRIAN Specification
040160, "LDMOS Wafer Evaluation and Die Preparation Process," and the applicable
LDMOS Die Specifications (510XXX) except as modified by Section 11.3 of the
Agreement.
11.3 SPECTRIAN will perform DC testing only on wafer and die
delivered to SMI in accordance with the requirements of 040160 and the
applicable 510XXX documents. SMI will perform all RF device evaluation assembly
and test for wafer qualification. All references to device builds for evaluation
sample testing, and qualification noted in 040160 and 510XXX documents are not
applicable to SPECTRIAN.
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SPECTRIAN warranties that [***] of the die from each wafer
delivered to SMI, when packaged into finished devices, will yield transistors
that comply with the applicable [***] transistor document. In the event a wafer
does not comply with this requirement, SMI will advise SPECTRIAN immediately,
but in no case later than [***] business days after receipt thereof by SMI, that
a wafer(s) has failed to comply with the performance and yield requirements of
paragraph 11.3. An engineering review meeting will be convened, attended by the
engineering representatives of both companies to review wafer data, and set a
corrective action plan for any failed wafers. After discussions regarding the
failed wafers have been completed, SMI, at its option and with advanced
notification to SPECTRIAN, shall return the wafer(s) for credit or replacement
or another agreed upon solution.
11.4 SMI and/or its appointed customers shall be entitled upon
any reasonably written request and during normal business hours, and at its sole
expense, to witness inspection and testing of all wafers manufactured by
SPECTRIAN for SMI under this Agreement and to audit the SPECTRIAN quality
control system to monitor the quality of wafers manufactured. If corrective
actions require follow-up, additional, directly related audits are permitted,
SMI personnel, in conducting such inspections or audits, shall be bound by
SPECTRIAN rules at its plants respecting visits by outside personnel.
11.5 SPECTRIAN shall keep, and provide reasonable access to SMI,
all SPECTRIAN test, inspection, processing, and full tracing of all wafers, from
fabrication to shipment, including scraps, normally maintained for a wafer lot
for each lot of wafers processed, on the same terms as it handles its standard
production records for other customers. SPECTRIAN shall not destroy records
pertaining to the wafers within 18 months of their creation and without first
giving SMI thirty (30) days written notice of such intended destruction and, the
right to obtain copies of such records for SMI own files and at SMI own expense.
11.6 Should SPECTRIAN discover or be informed about a condition
that may affect the quality or reliability of wafers in process or shipped to
SMI, SPECTRIAN will inform SMI immediately and present to SMI all pertinent
data.
12. Inspection.
12.1 SMI shall conduct its own inspection of shipped wafers,
transistors or parts in accordance with the Exhibit A wafer, transistor and
capacitor specifications within thirty (30) business days after receipt thereof
by SMI. If any wafers, transistors or capacitors shipped by SPECTRIAN do not
meet specifications upon such inspection, SMI shall immediately notify SPECTRIAN
in writing of the rejection of such shipment, and the specific defect or
deficiency identified by the inspection. SMI shall hold such materials in a safe
and secure facility and make them available for inspection by SPECTRIAN, subject
to Section 12.5.
12.2 If appropriate, SPECTRIAN may direct SMI to return such
defective materials to SPECTRIAN for further inspection, testing or other
procedures. Any such direction shall be accomplished by an SPECTRIAN Return
Material Authorization ("RMA"), including a specific tracer number to be
prominently displayed on the shipping container for such returned materials.
Upon issuance of an RMA, SMI shall promptly ship such materials together with
all
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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relevant data from the SMI inspection to the designated SPECTRIAN facility,
freight and insurance prepaid, in the original shipping container or containers
of equivalent protective constitution.
12.3 SMI may return such wafers, transistors or parts hereunder
for a credit and may recover its return shipping and insurance expenses from
SPECTRIAN if, and only if, defects in such materials actually exist as indicated
in the SMI rejection notice and were not caused by SMI own misuse, unauthorized
modifications, neglect, improper testing, attempts to repair, or by accident,
fire or other hazard, while such materials were in the possession or control of
SMI.
12.4 SPECTRIAN and SMI acknowledge that some wafers or parts
which do not meet Wafer Specifications and/or are broken may nevertheless still
be expected to yield a functional and reliable product. If SMI elects to
purchase such below-specification wafers or parts, SMI shall be entitled to a
partial credit against the SPECTRIAN invoice in an amount as may be reasonably
agreed upon in writing by SMI and SPECTRIAN. If SMI and SPECTRIAN fail to agree
upon a partial credit amount, then the below-specification wafers or parts shall
be returned to SPECTRIAN at SPECTRIAN's expense.
12.5 SMI and SPECTRIAN agree that conformance to the
specifications within this document does not necessarily indicate the wafers are
free of defects in material and/or workmanship, and that subsequent processing
or testing may uncover such defects in material and/or workmanship. Warranty
claims of such nature shall be made by SMI no later than 30 working days after
the first indication of a potential problem to SMI, and SMI and SPECTRIAN agree
to use their best efforts to correct such defects and provide each other with a
reasonable amount of data or information to effect a cure.
12.6 Any other provision of this Section 12 to the contrary
notwithstanding, no claim by SMI with respect to wafers, parts or services
delivered to SMI under this Agreement shall be greater in amount than the
purchase price of the order in respect of which damages are claimed. IN NO EVENT
SHALL SPECTRIAN BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL
DAMAGES, HOWEVER CAUSED, WITH REGARD TO ANY WAFERS, PARTS OR SERVICES DELIVERED
HEREUNDER. REGARDLESS OF WHETHER SPECTRIAN HAS BEEN INFORMED OF THE POSSIBILITY
OF SUCH DAMAGES OR NOT.
13. Delivery Quantities.
13.1 Delivery quantities will match with ordered quantities as
closely as possible; [***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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14. Confidentiality.
14.1 Each party acknowledges that the information disclosed in
connection with any transactions contemplated hereunder will contain the
Confidential Information and trade secrets of the disclosing party, and will
remain the property of the disclosing party ("Confidential Information"). A
party receiving any Confidential Information of the other party shall take all
reasonable measures to keep and hold any such Confidential Information of the
other party in strict confidence as it would its own Confidential Information
and shall not disclose such Confidential Information of the other party to any
person, firm or corporation without the prior written consent of the other
party. A party receiving Confidential Information of the other party shall not,
except as may be authorized hereafter in writing by the disclosing party, use
any Confidential Information of the other party for any purpose not stated in
this Agreement.
14.2 A party receiving Confidential Information of the other
party shall limit dissemination of and access to any Confidential Information of
the other party to those employees or consultants of the receiving party who
have a good faith need for such access to effectuate the purpose of this
Agreement and who have executed a standard non-disclosure agreement with the
receiving party.
14.3 The obligations of the receiving party described in this
Section shall survive termination or expiration of this Agreement and shall
continue in full force and effect with respect to any information as long as it
remains Confidential Information under this Section 14.
14.4 A party receiving Confidential Information of the other
party may disclose such information to subcontractors upon the prior written
approval of the party disclosing the Confidential Information if such disclosure
is necessary to perform the receiving party's duties under this Agreement, and
such approval shall not be unreasonably withheld. The receiving party shall
cause its permitted subcontractors to sign a confidentiality agreement with
substantially the same terms and conditions of this Section prior to disclosing
Confidential Information of the other party to such subcontractors.
14.5 Neither party shall have a Confidential Information
obligation to the other party with respect to any information of the other party
or any portion thereof which is:
(a) already known to the receiving party at the time of
receiving same as shown by the receiving party's files and records in existence
at the time of disclosure;
(b) or hereafter becomes publicly known through no
wrongful act of the receiving party;
(c) rightfully received from a third party without
restriction on disclosure and without breach of this Agreement;
(d) now or hereafter independently developed by the
receiving party and without reliance in any degree upon any Confidential
Information of the other party;
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(e) furnished by the disclosing party to a third party
without any restriction upon disclosure comparable to that set forth in this
Agreement; or
(f) revealed pursuant to a requirement of a governmental
agency or law, provided that the receiving party provides prompt written notice
of such requirement or law so as to afford the disclosing party an opportunity
to intervene and oppose disclosure.
14.6 The parties agree that any material breach of Section 14
will cause irreparable injury and that injunctive relief in a court of competent
jurisdiction will be appropriate to prevent either an initial or continuing
breach of such nondisclosure and confidentiality provisions herein in addition
to any other relief to which the owner of such Confidential Information may be
entitled.
15. Term.
15.1 This Agreement may be terminated by SMI or SPECTRIAN upon
written notice to the other party:
(a) in the event the other party files a petition in
bankruptcy, or in the event all or part of the other party's assets are assigned
to a trustee or receiver, or if an involuntary petition in bankruptcy is filed
by a third party and the other party does not resolve such petition in its favor
within sixty (60) days after filing and notice thereof;
(b) in the event of a substantial breach of a material
term of this Agreement not remedied by the other party in breach within thirty
(30) days after receipt of written notice by the terminating party specifying
such breach and requesting that it be remedied; and
(c) immediately for any violations of Section 14.
a. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOST PROFITS
OR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, HOWEVER CAUSED,
AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THE TERMINATION OF THIS
AGREEMENT.
b. SPECTRIAN shall not be liable for any damages whatsoever
caused by SMI products, due to design, packaging and testing.
15.4 This agreement shall be in effect for 60 months and shall be
self renewing on the anniversary of this Agreement thereafter unless terminated
by either party at least 180 days prior to such renewal. Should SPECTRIAN decide
to not renew this agreement the discontinuation of product clause (Section 10.0)
becomes effective.
16. Infringement.
16.1 SPECTRIAN warrants to SMI that SPECTRIAN owns the know-how,
copyrights, mask work rights, and other intellectual rights solely to enable
SPECTRIAN to produce the wafers, transistors or parts for SMI lawfully.
SPECTRIAN hereby indemnifies and holds SMI and its directors, officers,
employees and agents harmless from any claim, suit or other liability
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(including reasonable attorneys' fees and costs) arising out of or resulting
from a material breach of the foregoing warranty.
16.2 SMI warrants to SPECTRIAN that SMI owns, or otherwise has
the right to use on behalf of SPECTRIAN all applicable intellectual property
rights to the manufacturing processes not otherwise licensed to SMI by SPECTRIAN
which will be used by SPECTRIAN to produce the wafers or parts. SMI hereby
indemnifies and holds SPECTRIAN and its directors, officers, employees and
agents harmless from any claim, suit or other liability (including reasonable
attorneys' fees and costs) arising out of or resulting from a material breach of
the foregoing warranty.
16.3 In the event of the institution of any suit or claim against
an indemnified party alleging that SPECTRIAN's manufacture of the wafers or
parts violates any circuit design patent or mask work, manufacturing process
patent, or other circuit design or manufacturing process proprietary right of a
third party recognized under the laws of the United States of America
(hereinafter "Third Party Rights"), or shall become the subject of any claim for
violation of Third Party Rights, the indemnified party shall promptly notify the
indemnifying party of such suit or claim and provide reasonable details thereof.
Failure to give such notice, if it materially impairs the ability of the
indemnifying party to defend against such suit or claim, shall terminate any
duty of indemnification under this Section.
16.4 The indemnifying party shall have sole control of any action
or settlement negotiations relating to any such suit or claim, and the
indemnified party shall render all cooperation reasonably requested by the
indemnifying party in defense of such suit or claim, provided that the
indemnified party may retain its own counsel at its own expense. The indemnified
party shall not settle or attempt to settle any such suit or claim without the
express written consent of the indemnifying party.
16.5 In addition to its duty of indemnification hereunder, the
indemnifying party may, at its sole discretion and expense:
(a) alter or change the circuit design or manufacturing
process, as may be the case, so as to make said design or process non-infringing
of any Third Party Right; or
(b) obtain permission from the affected third party to use
the Third Party right, it being the intention of both parties to continue the
performance of this Agreement if commercially reasonable to do so.
If neither of these methods is appropriate to eliminate
the infringement of the Third Party Right, the indemnifying party at its sole
discretion may terminate this Agreement or withdraw the infringing products
without any additional obligation or liability to the indemnified party, for
lost opportunity or profits or otherwise, due to such termination.
17. Notices.
17.1 Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given to either party
hereto by the other party shall be in writing and shall be deemed duly served
and given when personally delivered to either of the parties
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to whom it is directed, or in lieu of such personal service, on the same day of
transmission by confirmed facsimile or seven (7) days after deposit in the mail,
first class international air mail postage prepaid, or two (2) business days
after being sent by overseas courier, addressed to:
SMI Microdevices Inc. SPECTRIAN, CORPORATION.
000 Xxxxxxx Xxxxxx Semiconductor Division
Xxxxxxxxx, XX 00000 000 Xxxx Xxxx Xxxxx
Attn. of: Xxxxxx X. Xxxxxxxx Xxxxxxxxx, XX 00000
Attn. of: Xxxxx Xxxxx
Either party may change the addresses above upon notice
duly given in writing to the other party.
18. Arbitration.
18.1 Except for any claim based upon an alleged or actual
violation of Section 14 above with respect to confidentiality and
non-disclosure, any dispute relating to the interpretation or performance of
this Agreement or the grounds for the termination thereof shall be resolved at
the request of either party through arbitration as set forth herein. Such
arbitration shall be conducted by one (1) arbitrator who has reasonable
technical knowledge of and experience in the semiconductor industry, chosen and
agreed upon by the parties.
18.2 Arbitration shall be conducted in Sunnyvale, California,
USA, under the Commercial Arbitration Rules of the American Arbitration
Association (the "AAA"), except as superseded by the provisions of this Section,
or such other rules as may be agreed upon by the parties. The parties shall be
entitled to all discovery permitted under Section 1283.05 of the California Code
of Civil Procedure, with all such discovery to be completed within ninety (90)
days of the commencement of the arbitration. Upon completion of the arbitration
hearing, the arbitrator shall promptly render the decision and award, which
shall be in writing and which shall state the reasons for the conclusions
reached.
18.3 The arbitrator shall have the power to render any award for
ordinary damages or injunctive relief but may not award punitive damages. If
judicial enforcement or review of such arbitration award is sought by either
party, judgement may be entered upon such award in any court of competent
jurisdiction in the United States.
18.4 The prevailing party in any such judicial enforcement,
arbitration or review proceeding or in any other legal proceeding relating to
the interpretation or performance of this Agreement or the grounds for
termination thereof shall be entitled to its reasonable attorneys' fees and
related other costs (including the costs for the arbitrator and the fees of any
interpreters or translators) in addition to any other amount of recovery ordered
by such court. For purposes of this Section, a "prevailing party" shall be that
party which recovers more than one-half (1/2) of the amount set forth in its
claim in the arbitration or which defeats the other party's claim by more than
one-half, or which achieves a comparable result in respect of injunctive relief.
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19. Miscellaneous.
19.1 This document constitutes the entire agreement of SMI and
SPECTRIAN with regard to the subject matter hereof and supersedes all prior
negotiations and agreements whether written or oral. The executed version of
this Agreement and of any other documents prepared by the parties under this
Agreement shall be controlling for all purposes.
19.2 This Agreement may be amended only by a written document
executed by authorized representatives of SMI and SPECTRIAN.
19.3 No right may be assigned, and no duty may be delegated, by
either party under this Agreement except upon the written consent of the other
party, and any attempted assignment and delegation without such consent shall be
void.
19.4 Notwithstanding the foregoing, however, either party shall
be entitled to assign this Agreement, and all rights and obligations hereunder,
to a wholly-owned subsidiary or to a successor to all or substantially all of
its assets, whether by sale, merger, or otherwise, provided that either party
indicating such assignment shall provide the other party with at least thirty
(30) days prior written notice and cause such assignee to be bound by this
Agreement. In the event of a major change of ownership, either party shall have
the right to terminate the Agreement with at least 60 days prior written notice.
This agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective representatives, heirs, administrators,
successors and permitted assigns except as otherwise provided herein.
19.5 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
19.6 Except for the duty of payment for goods and services
previously supplied, neither party shall be responsible or liable to the other
party for non-performance or delay in performance of any terms or conditions of
this Agreement due to acts of God, acts of governments, wars, riots, strikes or
other labor disputes, shortages of labor or materials, or other causes beyond
the reasonable control of the non-performing or delayed party, provided,
however, non-performance or delay in excess of one hundred eighty (180) days
shall constitute cause for termination of this Agreement by either party.
19.7 This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but such counterparts
together shall constitute only one and the same instrument.
19.8 Any waiver (express or implied) by either party of any
breach of this agreement shall not constitute a waiver of any other or
subsequent breach.
19.9 In the event any provision of this Agreement is held to be
invalid or unenforceable, the valid or enforceable portion thereof and the
remaining provisions of this Agreement will remain in full force and effect.
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19.10 Each party hereto is an independent contractor of the
other, and neither shall be deemed an employee, agent, partner or joint venturer
of the other. Neither party shall make any commitment, by contract or otherwise,
binding upon the other nor represent that it has any authority to do so.
19.11 Each party shall obey all applicable laws and regulations
in the performance of its respective duties and tasks under this Agreement and
shall use its best efforts to assist the other party to do likewise.
19.12 Each party shall designate a single management
representative who shall be the primary point of contact for that party in its
relations with the other party hereunder, and each party may change its
representative from time to time upon prior written notice to the other party.
Initially, the SMI representative shall be Xxxxxx X. Xxxxxxxx and the SPECTRIAN
representative shall be Xxxxx Xxxxx.
19.13 This Agreement shall be governed by the laws of the state
of California without regard to its conflicts of laws principles.
-13-
14
IN WITNESS WHEREOF the parties have caused this agreement to be executed
by their respective duly authorized representatives.
FOR STANFORD MICRODEVICES, INC. FOR SPECTRIAN CORPORATION
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxxxx Xxxxx
------------------------------- ---------------------------------
(signature) (signature)
Xxxxxx X. Xxxxxxxx Xxxxx Xxxxx
Chief Operating Officer President
STANFORD MICRODEVICES, INC. Semiconductor Division
SPECTRIAN CORPORATION
Nov 8, 1999 5th Nov 1999
------------------------------- ---------------------------------
(date) (date)
-14-
15
EXHIBIT A
PRODUCT SPECIFICATIONS
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
16
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
-2-
17
EXHIBIT B
PRICING
--------------------------------------------- -----------------------------------------------
TRANSISTORS WAFERS/DIE
--------------------------------------------- -----------------------------------------------
DEVICE PRICE (EACH) TYPE PRICE (EACH)
--------------------------------------------- -----------------------------------------------
[***] [***] [***] [***]
--------------------------------------------- -----------------------------------------------
CAPACITORS
-----------------------------------------------
TYPE PRICE/WAFER
-----------------------------------------------
[***] [***]
-----------------------------------------------
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
18
EXHIBIT C
MAJOR CHANGE CLASSIFICATION
The following are considered major changes and require SMI notification prior to
implementation.
WAFER FABRICATION
[***]
PACKAGING
[***]
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
19
EXHIBIT D
-----------------------------------------------------------------------------------------------
LDMOS TRANSISTOR ASSEMBLY
-----------------------------------------------------------------------------------------------
TRANSISTOR MODEL DEVICE P/N ASSEMBLY SPECIFICATION
-----------------------------------------------------------------------------------------------
[***] [***] [***]
-----------------------------------------------------------------------------------------------
Specifications 510XXX"
[***] Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
20
EXHIBIT E
INTELLECTUAL PROPERTY FOR ASSEMBLY/TEST OF SPECTRIAN DEVICES USING SPECTRIAN
DICE
