SERVICES AGREEMENT
Exhibit 10.37
This Services Agreement (“Agreement”), dated as of May 15, 2009 (the
“Effective Date”), is entered into by Trident Microsystems (Far East) Ltd., Xxxxxx
House, South Church Street, Grand Cayman, Cayman Islands, B.W.I. (“TMFE”) and
Xxxxxxxx XxxX, Xxxx-Xxxxx-Xxxxxxx 00, 00000 Xxxxxxxx x.Xx., Germany (“Micronas”).
For purposes of this Agreement, “TMFE” and “Micronas” will be deemed to include its
wholly-owned subsidiaries.
WHEREAS, pursuant to that certain Purchase Agreement, dated as of even date herewith, by
and between Micronas, Trident Microsystems, Inc. and TMFE (the “Purchase Agreement”),
Buyer has purchased certain assets (the “Acquisition”) from Micronas and its
affiliates relating to the Product Lines (as defined in the Purchase Agreement).
WHEREAS, in connection with the Acquisition, TMFE desires to engage Micronas to (i)
perform certain services and support (“Transition Services”), (ii) sell inventory and
non-Turnkey products relating to the Product Lines, AVFB and VGCB (“Inventory”) and
(iii) sell newly manufactured products of the Product Lines, AVFB and VGCB (“Manufactured
Products”), upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein
and for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, TMFE and Micronas agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
meanings ascribed to them below. Terms used in this Agreement that are not otherwise defined
herein shall have their respective meanings as set forth in the Purchase Agreement.
1.1. “AVFB” means the analog front-end video and audio decoder product, as
currently produced by Micronas and its Affiliates.
1.2. “Assembly” means the process of electrically connecting and mechanically
encapsulating Die in a Package.
1.3. “Die” means individual integrated circuits on Wafers.
1.4. “Package” means Die, encapsulated through a required Assembly.
1.5. “Sort” means electrical and functional probing tests, applied on a wafer level .
1.6. “Test” means electrical and functional tests, applied on a packaged level.
1.7. “Turnkey” means Die which has gone through Sort, Assembly, final Test, xxxx
and pack.
1.8. “VGCB” means the dual channel video graphics controller for full HD 1080p
flat panel televisions, as currently produced by Micronas and its Affiliates.
1.9. “Wafer(s)” means silicon wafer(s) containing integrated circuits.
2. TRANSITION SERVICES. During the Term, upon the terms and subject to the
conditions of this Agreement, Micronas hereby agrees to perform the Transition Services set
forth in Schedule A
attached hereto. TMFE shall reimburse Micronas for the fees and expenses set forth on
Schedule A in connection with Micronas’ performance of each such Transition Services.
All payments to be made hereunder shall be made by TMFE to Micronas within thirty (30) days
after receipt of an invoice, to such account as Micronas specifies in writing to TMFE.
3. INVENTORY; ORDERS FOR MANUFACTURED PRODUCTS; PAYMENTS; SHIPMENT AND
CANCELLATIONS.
3.1. Inventory. As of the Effective Date, Micronas shall consign Die Bank and
Finished Goods of the Inventory to TMFE. TMFE may select from consigned Inventory, on a
FIFO basis, at a cost of net book value. TMFE shall provide weekly reporting on Inventory
selected. Micronas shall issue invoices to TMFE based on such weekly reports and TMFE shall
make payments to Micronas within thirty (30) days of receipt of invoice. In addition to the
price, TMFE shall pay any tax, duty, fee, or other charge imposed by a government authority
on the sale of the Inventory. All amounts due and payable hereunder shall be invoiced and
paid in Euro. Micronas shall have a right to audit such reports, no more than once per
calendar quarter. TMFE may request Inventory to be located at another location as
designated by TMFE. TMFE shall bear the shipping costs to the new location or any return to
the prior location. Micronas shall cancel all FAB open purchase orders on agreed upon wafer
inventory and TMFE shall issue replacement purchase order to FAB. TMFE shall issue a
purchase order for product to be built before the Closing Date (as defined in the Purchase
Agreement) and will purchase product on a “take or pay” basis.
3.2. Orders for Manufactured Products. TMFE may place orders for Manufactured
Products by submitting a purchase order to Micronas. Micronas shall acknowledge acceptance
or rejection of TMFE’s purchase order within five (5) business days of receipt of such
purchase order. In the acknowledgement of acceptance, Micronas shall include the estimated
shipment date(s) for the underlying purchase order; provided, however, that once
Micronas accepts a purchase order, Micronas will sell and ship the Manufactured Products in
accordance with the terms of such purchase order. Once Micronas has accepted a purchase
order, any amendments or modifications to the purchase order with respect to the amount of
Manufactured Products can only be made if signed by both parties. In the event the
estimated delivery date is delayed by more than five (5) days, Micronas shall provide prompt
notice to TMFE of such delay in shipment.
3.3. Prices and Payment. The Manufactured Products prices are set forth in
Schedule A attached hereto; provided, however, in the event the parties
mutually agree in writing in a purchase order to a price that is different from the price in
Schedule A, the price for the Manufactured Products shall be the price as provided under
that purchase order. Micronas shall send invoices to TMFE after the shipment of the
Manufactured Products. All payments to be made hereunder shall be made by TMFE to Micronas
within thirty (30) days after receipt of an invoice, to such account as Micronas specifies
in writing to TMFE. In addition to the price, TMFE shall pay any tax, duty, fee, or other
charge imposed by a government authority on the sale of the Manufactured Products. All
amounts due and payable hereunder shall be invoiced and paid in Euro.
3.4. Shipment. All Inventory or Manufactured Products shall be sold, prices
quoted, FCA (Free Carrier) from Micronas’s storage location in Freiburg, Germany or Hong
Kong. Title and risk of loss pass to TMFE at the FCA point. TMFE shall be responsible for
all costs associated with shipping and insurance as well as any necessary customs clearances
and duties after the FCA point. If the parties mutually agree to drop-shipment of the
Inventory or Manufactured Products, the minimum shipment size and other terms and conditions
of such drop-shipment shall be set forth in a separate written agreement prior to
commencement of such shipments. Micronas will ship the Inventory or
Manufactured Products in its standard packaging. If TMFE requests special packaging,
it will approach Micronas for the requested change implementation.
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3.5. Covenant of TMFE. TMFE covenants to Micronas that any Inventory consigned
to TMFE shall be purchased in accordance with the “first in, first out” (FIFO) principle,
whereby TMFE shall first sell the consigned Inventory pursuant to this Agreement before it
sells any products manufactured by TMFE or Manufactured Products.
3.6. End of Life Procedure. In the event of end of life for the continuing
production of a product of the Product Lines, Micronas shall provide a cancellation notice
six (6) months prior to such cancellation and provide TMFE the opportunity for a last time
purchase.
3.7. Returns; Chargebacks. TMFE shall assume responsibility for handling all
returns of the Inventory or Manufactured Products purchased from Micronas after the
Effective Date in accordance with Micronas’s normal return policies and procedures,
including quality levels previously committed by Micronas to its customers, existing on the
Effective Date. Any returns received directly by Micronas after the Effective Date shall be
forwarded to TMFE’s designated facility for handling of the returned Inventory or
Manufactured Products and processing of customer credits. Notwithstanding the foregoing,
Micronas shall be responsible for payment of all such returns and chargebacks for the
Inventory or Manufactured Products sold by Micronas after the Effective Date. TMFE shall
deduct the shipping charges, actual product returns, actual damaged product and, if
applicable, actual chargebacks from Micronas during the period. TMFE shall have a right of
offset for such amounts provided TMFE provides a detailed statement to Micronas to that
effect.
4. OWNERSHIP; CONFIDENTIALITY.
4.1. Ownership. Each party retains all right, title and interest in and to its
own Intellectual Property.
4.2. Confidentiality. The Parties acknowledge and agree that all proprietary
or nonpublic information disclosed by one party (the “Disclosing Party”) to the
other party (the “Receiving Party”) in connection with this Agreement, directly or
indirectly, which information is (i) marked as “proprietary” or “confidential” or, if
disclosed orally, is designated as confidential or proprietary at the time of disclosure and
reduced in writing or other tangible (including electronic) form and delivered to the
Receiving Party within thirty (30) days of disclosure, or (ii) provided under circumstances
reasonably indicating that it constitutes confidential and proprietary information of the
Disclosing Party (“Confidential Information”). The Receiving Party may disclose
Confidential Information only to those employees and subcontractors who have a need to know
such Confidential Information and who are bound to retain the confidentiality thereof under
provisions (including provisions relating to nonuse and nondisclosure) no less restrictive
than those required by the Receiving Party for its own confidential information. The
Receiving Party shall, and shall cause its employees to, retain in confidence and not
disclose to any third party (including any of its sub-contractors) any Confidential
Information without the Disclosing Party’s express prior written consent, and the Receiving
Party shall not use such Confidential Information except to exercise the rights and perform
its obligations under this Agreement. Without limiting the foregoing, the Receiving Party
shall use at least the same procedures and degree of care which it uses to protect its own
confidential information of like importance, and in no event less than reasonable care. The
Receiving Party shall be fully responsible for compliance by its employees with the
foregoing, and any act or omission of an employee of the Receiving Party shall constitute an
act or omission of the Receiving Party. Notwithstanding the foregoing, Confidential
Information will not include information that: (a) was in the public domain at or
subsequent to the time such information was communicated to the Receiving Party by the
Disclosing Party through no fault of the Receiving Party, (b) was rightfully in the
Receiving Party’s possession free of any obligation of
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confidence at or subsequent to the time such information was communicated to the
Receiving Party by the Disclosing Party, (c) was developed by employees or agents of the
Receiving Party independently of and without reference to any information communicated to
the Receiving Party by the Disclosing Party, or (d) was communicated by the Disclosing Party
to an unaffiliated third party free of any obligation of confidence. The obligations under
Section 4.2 shall not apply to the extent that Confidential Information includes information
which is required to be disclosed by a government agency to further the objectives of this
Agreement or by a proper order of a court of competent jurisdiction; provided,
however, that the Receiving Party will use its best efforts to minimize such disclosure
and will consult with and assist the Disclosing Party in obtaining a protective order prior
to such disclosure. The parties’ obligations under this Section shall survive termination
or expiration of this Agreement for a period of five (5) years; provided, however,
that obligations of confidentiality with respect to source code and circuit designs in
human-readable format (e.g., register transfer level (RTL) format) provided hereunder shall
remain in effect in perpetuity.
4.3. Remedies. It is expressly agreed that a violation of this confidentiality
obligation will cause irreparable harm to the disclosing party and that a remedy at law
would be inadequate. Therefore, in addition to any and all remedies available at law, the
disclosing party will be entitled to an injunction or other equitable remedies in all legal
proceedings in the event of any threatened or actual violation of this Section by the
receiving party.
5. LIMITATION OF LIABILITY. Each party’s liability under the Transition Services and
sale of Inventory or Manufactured Products, respectively, hereunder from any cause whatsoever
shall in no event exceed an amount equal to the amount of the fees and/or purchase price paid
by TMFE to Micronas for such Transition Services and/or Inventory and/or Manufactured
Products, respectively, giving rise to such liability. Micronas’ liability under this
Agreement shall be limited to Micronas’ willful misconduct or gross negligence. This
allocation of risk is reflected in the fees payable for the Transition Services and price of
the Inventory or Manufactured Products.
6. CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST
PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER THE CLAIM IS FOR
BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORY OF
LAW OR EQUITY, EVEN IF ADVISED OF SUCH DAMAGES.
7. TERM; TERMINATION.
7.1. Term. The initial term of this Agreement shall begin on the Effective
Date and shall expire on Schedule A, with respect to each Transition Service, unless
earlier terminated pursuant to Section 7 hereof (the “Term”).
7.2. Termination for Convenience. Either party may terminate this Agreement
for any reason at its convenience upon ninety (90) days written notice to the other party
prior to the expiration of the relevant Term as provided on Schedule A, with respect
to each such Service; provided, however, that TMFE shall purchase, and Micronas
shall fill, TMFE’s purchase orders that have been accepted prior to the notice of
termination; provided, further, that upon any such termination, TMFE shall have the
right to make a last time buy of Inventory or Manufactured Products within six (6) months of
the effective date of termination.
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7.3. Termination With Cause. Either party may terminate this Agreement upon
thirty (30) days written notice of a material breach of this Agreement by the other party
hereto if such breach is not cured within such thirty (30) day period.
7.4. Effect of Termination. Termination or expiration will not relieve either
party from any liability arising from any breach of this Agreement. Neither party will be
liable to the other for damages of any kind solely as a result of terminating this Agreement
in accordance with its terms, and termination of this Agreement by a party will be without
prejudice to any other right or remedy of such party under this Agreement or applicable law.
8. MISCELLANEOUS.
8.1. Authority. Each party hereby represents and warrants to the other party
that (i) it has all requisite corporate power and authority necessary to perform the actions
contemplated to be performed by it hereunder and (ii) this Agreement has been duly executed
and delivered by such party and constitutes legal, valid and binding obligations of such
party enforceable in accordance with its terms, except as such enforceability may be subject
to or limited by (A) applicable bankruptcy, reorganization, insolvency, moratorium and
similar laws affecting the enforcement of creditors’ rights generally and (B) the rules
governing the availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a proceeding
in law or equity.
8.2. Notices. All notices, requests or other communication hereunder shall be
made in writing and shall be deemed to have been duly given by the parties if addressed and
delivered by hand or telefax, or confirmed by registered mail with postage prepaid, or sent
by international courier service to the addresses set forth below or to such other addresses
which may be given by written notice in accordance with this Section.
If to Seller:
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Xxxxxxxx XxxX Xxxx-Xxxxx-Xxxxxxx 00 00000 Xxxxxxxx x.Xx. Germany Telefax: x00 000 000 00 00 Attn. CFO |
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If to Purchaser:
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Trident Microsystems (Far East) Ltd. c/o Trident Microsystems, Inc. 0000 Xxxxxxx Xxxxx Xxxxx Xxxxx, XX 00000-0000 XXX Telefax: x0 (000) 000-0000 Attn. General Counsel |
8.3. Assignment. Neither party shall assign this Agreement or any of its
rights hereunder without prior written consent of the other party, provided that nothing
herein prohibits Micronas from performing any manufacturing or other obligations hereunder
through its Affiliates or third party foundries or subcontractors. “Affiliate” means an
entity that directly or indirectly controls, is controlled by, or is under common control
with Micronas. For purposes of this definition, “control” means the ownership of more than
fifty (50%) percent of the voting stock of such entity, or if such entity is not a
corporation, the ability to control the day-to-day operations and business of such entity.
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8.4. Agency. Each party shall be acting as an independent contractor and not
as an agent or employee of the other party. Accordingly, each party assumes all risks in
its performance of this Agreement and further shall be solely liable for all injuries to all
persons and for all loss or damage to property to the extent which is attributed to its
performance under this Agreement.
8.5. Governing Law; Attorney’s Fees. This Agreement shall be interpreted and
enforced in accordance with the laws of Switzerland excluding its choice of law rules, with
exclusion of the Vienna Convention on the International Sale of Goods dated April 11, 1980.
8.6. Force Majeure. In the event that either party hereto shall be rendered
wholly or partially unable to carry out its obligation under this Agreement by reasons or
causes beyond its reasonable control, including but not limited to fire, flood, explosion,
action of the elements, acts of God, accidents, epidemics, inability to obtain equipment or
material, or insurrection, riots or other civil commotion, war, enemy action, acts, demands
or requirements of the government in any state, or by other cause which it could not
reasonably be expected to avoid, then the performance of the obligations of each party or
the parties as they are affected by such causes shall be excused during the continuance of
any inability so caused but such inability shall as far as possible be remedied with all
reasonable dispatch, provided the non-performing party provides prompt written notice to the
other party.
8.7. Severability. If at any time any provision of this Agreement shall be
held to be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remainder of the Agreement shall not in any way be affected or
impaired and the invalid, illegal or enforceable provision shall be replaced by a provision
which best fits the Parties’ original intentions.
8.8. Waiver. No failure or delay by either party in exercising any right,
power, or privilege hereunder shall operate as a waiver, nor shall any single or partial
exercise thereof or the exercise of another right, power, or privilege hereunder preclude
future exercise of the same. The waiver by one party of any breach of this Agreement by the
other party shall not be effective unless in writing, and no such waiver shall operate or be
construed on a subsequent occasion as a waiver of the same or any other breach.
8.9. Entire Agreement. This Agreement and all Exhibits attached hereto
represent the entire agreement between the parties as to the subject matter hereof, and
supersedes and terminates all other prior or contemporaneous verbal or written agreements or
understandings with respect to the subject matter hereof. Except as provided under Section
3.3 above, this Agreement supersedes any terms or conditions contained in any purchase order
or other document exchanged by the parties, even if such purchase order or other document is
contemplated hereunder. No modifications to this Agreement shall be enforceable except when
in writing and signed by duly authorized representatives of both parties.
8.10. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which together shall constitute
one and the same instrument. Any executed counterpart delivered by facsimile or other means
of electronic transmission shall be deemed an original for all purposes.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date
first set forth above.
Trident Microsystems (Far East) Ltd.
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Micronas GmbH | |||
/s/ Xxxxxx Xxxxxxx Xxxxxx
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/s/ Xxxxxxx Xxxxx | |||
Xxxxxx Xxxxxxx Xxxxxx Director |
Xxxxxxx Xxxxx | |||
/s/ Xxxxx X. Xxxxxx
President and Director |
