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EXHIBIT 10.2
AGREEMENT FOR
REIMBURSEMENT OF WAFER PAYMENTS
BETWEEN
XXXX TECHNOLOGY, INC. AND FUJITSU LIMITED
This Agreement for Reimbursement of Wafer Payments (the "Agreement") is made
and agreed to as of September 30, 1997, by and between XXXX Technology, Inc.
("Xxxx") with its principal offices at 0000 Xxxxxxx 000 Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx, XXX, and Fujitsu Limited ("FJ") with its registered offices at
1-1, Kamikodanaka 4-chome, Xxxxxxxx-xx, Xxxxxxxx-xxx, Xxxxxxxx, 000-00, Xxxxx
(together, the "Parties").
Recitals
WHEREAS, the Parties wish to fully and finally settle all disputes which are
related in any way to wafer and die deliveries from FJ to Xxxx prior to July 1,
1997; and
WHEREAS, FJ and Xxxx have agreed that the payment to be made under this
Agreement shall settle all disputes between the Parties, and any affiliates of
the Parties, over wafer and die deliveries with respect to such period; and
WHEREAS, the terms of this Agreement have been reviewed by an independent
committee of the Board of Directors of Xxxx and this committee has determined
that the terms of this Agreement are in the best interests of Xxxx;
NOW, THEREFORE, in consideration of premises and the terms and conditions set
forth herein, both Parties hereby agree as follows:
1. WAFER YIELD PAYMENT
1.1. Both Parties agree that the amount of the Wafer Yield Payment
will be US$2,254,257.00 (the "Wafer Yield Payment").
1.2. FJ agrees to pay the Wafer Yield Payment on or prior to
October 20, 1997, provided that FJ receives, prior to October 6, (a) a copy of
this Agreement and (b) a copy of the letter forwarded by FJ to Xxxx, dated the
date hereof, confirming the parties' agreement on the principal terms of a
wafer purchase agreement governing the purchase of wafers and dies by Xxxx from
FJ from and after July 1, 1997 (the "Confirmation Letter"), each duly executed
by Xxxx.
1.3. Xxxx' agreement to the terms of this Agreement, including
without limitation the release contained in Section 1.4, shall be subject to and
contingent upon (a) the execution of the Confirmation Letter by both Parties
and (b) the receipt by Xxxx of the Wafer Yield Payment described in Section 1.1.
1.4. Subject to the provisions of Section 1.3 above, Xxxx does
hereby and forever release and discharge FJ and each subsidiary and affiliated
corporation of FJ as well as the successors, shareholders, officers, directors,
assigns, agents, employees and representatives of each of them, past or
present, from any and all cause or causes
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of action, actions, damages, losses, claims, liabilities, and demands of
whatsoever kind or character, known or unknown, suspected to exist or not
suspected to exist, anticipated or not anticipated, whether statutory or common
law, heretofore or hereafter arising out of, connected with or incidental to
FJ's supply to Xxxx of wafers or dies prior to July 1, 1997, including with
respect to the yields of any such wafers and the performance of any such wafers
(or the related dies) on a stand-alone basis or as incorporated into Xxxx
products; provided, however, that such release shall not extend to, and shall
not be deemed to alter or diminish in any respect, any claims by Xxxx for
refund, repair or replacement of defective products based upon breach of the
express warranty that the Parties have agreed will apply to wafers and dies
supplied by FJ and accepted by Xxxx on or after September 30, 1996. Xxxx
acknowledges that the foregoing release is part of a compromise of disputed
claims and agrees that it shall not be deemed or construed as an admission of
liability or responsibility by either Party for any purpose.
1.5. Subject to the effectiveness of Section 1.4 above, FJ does
hereby and forever release and discharge Xxxx and each subsidiary and
affiliated corporation of Xxxx as well as the successors, shareholders,
officers, directors, assigns, agents, employees and representatives of each of
them, past or present, from any and all cause or causes of action, actions,
damages, losses, claims, liabilities, and demands of whatsoever kind or
character, known or unknown, suspected to exist or not suspected to exist,
anticipated or not anticipated, whether statutory or common law, heretofore or
hereafter arising out of, connected with or incidental to FJ's supply to Xxxx
of wafers or dies, including with respect to the yields of any such wafers and
the performance of any such wafers (or the related dies) on a stand-alone basis
or as incorporated into Xxxx products; provided, however, that such release
shall not extend to, and shall not be deemed to alter or diminish in any
respect, Xxxx' obligations with respect to invoices rendered by FJ in the
ordinary course for shipments of wafers or dies. FJ acknowledges that the
foregoing release is part of a compromise of disputed claims and agrees that it
shall not be deemed or construed as an admission of liability or responsibility
by either Party for any purpose.
1.6. WAIVER OF CALIFORNIA CIVIL CODE SECTION 1542. EACH PARTY
HEREBY WAIVES ALL RIGHTS ARISING UNDER CALIFORNIA CIVIL CODE SECTION 1542 OR
UNDER ANY ANALOGOUS REQUIREMENT OF LAW. SECTION 1542 PROVIDES THAT:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE
TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM, MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
EACH PARTY ACKNOWLEDGES THAT IT HAS BEEN FULLY INFORMED BY ITS COUNSEL
CONCERNING THE EFFECT AND IMPORT OF THIS RELEASE UNDER CALIFORNIA CIVIL CODE
SECTION 1542 AND OTHER REQUIREMENTS OF LAW.
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2. CONFIDENTIALITY
2.1. This Agreement and all documents and discussions relating to
this Agreement are confidential information and are to be disclosed only to
employees of a Party who have a justifiable need to know. If either Party
needs to submit this Agreement to any third party, including any governmental
entity, court or regulatory body, such Party shall inform the other Party of
such requested submission in writing with the reasons and factual details of
the request. Subject to the requirements of applicable law, the order of any
court and the order or regulations of any governmental agency, each Party
agrees to use good faith to comply with the reasonable requests of the other
Party relating to the disclosure or nondisclosure of the terms of this
Agreement.
2.2. The Parties shall consult with each other regarding the
wording and substance of any and all press releases, announcements or other
public statements with respect to the transactions contemplated hereby. The
Parties further agree to use good faith to comply with the reasonable requests
of the other Party relating to any such press release, announcement or public
statement.
3. ASSIGNMENT
Neither this Agreement nor any of the rights or obligations created
herein may be assigned, delegated, pledged or otherwise encumbered or disposed
of, in whole or in part, by either Party without written consent of the other
Party. Any attempt to do so without the other Party's prior consent shall be
null and void.
4. ENTIRE AGREEMENT; GOVERNING LAW
This Agreement contains the entire agreement of both parties and
supersedes any and all prior agreements between both parties relating to the
subject matter hereof. This Agreement is to be governed by the laws of
California without regard to the laws of conflict of laws thereof.
5. COUNTERPARTS
This Agreement may be executed in counterparts each of which shall
constitute an original instrument but all of which, taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, both parties have caused their respective authorized
representatives to execute this Agreement as of the date first written above.
XXXX TECHNOLOGY, INC. FUJITSU LIMITED
/s/ XXXX XXXXXXX /s/ HIROHIKO KONDO
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Name: Xxxx Xxxxxxx Name: Hirohiko Kondo
Title: President and CEO Title: Group Senior Vice President
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LSI Products Group
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