EXHIBIT 10.2
[ * ] - Certain information omitted and filed separately with the Commission
pursuant to a confidential treatment request under Commission Rule 24b-2.
PURCHASE AGREEMENT
between
CREE RESEARCH, INC.
Durham, North Carolina, USA
("Seller")
and
OSRAM OPTO SEMICONDUCTORS GMBH & CO. OHG
Regensburg
Federal Republic of Germany
("Purchaser")
Dated August 30, 1999
PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement"), made and effective as of the 30th day of
August, 1999 (the "Effective Date"), by and between CREE RESEARCH, INC.
(hereinafter referred to as "Seller"), a corporation organized under the laws of
the State of North Carolina, the United States of America, and OSRAM OPTO
SEMICONDUCTORS GMBH & CO. OHG (hereinafter referred to as "Purchaser"), a
corporation organized under the laws of the Federal Republic of Germany.
Recitals
WHEREAS, Seller is engaged in the business, among others, of manufacturing and
selling LED's in die form and silicon carbide (SiC) wafers; and
WHEREAS, Purchaser is engaged in the business, among others, of manufacturing
LED's packaged in lamp form and desires to purchase a quantity of LED die
products and SiC wafers from Seller; and
WHEREAS, the parties have agreed on the terms and conditions under which Seller
will sell such LED's and wafers to Purchaser and desire to memorialize such
terms in this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and the mutual obligations
undertaken in this Agreement, the parties agree as follows:
1. CONTRACT DOCUMENTS; DEFINITIONS
1.1 Documents.
The following documents are annexed to and made a part of this
Agreement:
(a) Schedule 1 -- Quantity and Shipment Schedule (with Attachment A
thereto)
(b) Schedule 2 -- Price and Payment Schedule
(c) Schedule 3 -- Product Specifications (with Attachments A, B and
C thereto)
1.2 Definitions.
For purposes of this Agreement, the terms defined in this Section 1.2
shall have the meaning specified and such definitions shall apply to
both singular and plural forms:
(a) "Affiliates" of a designated corporation, company or other entity
means all entities which control, are controlled by, or are under
common control with the named entity, whether directly or through
one or more intermediaries. For purposes of this definition
"controlled" and "control" mean ownership of more than fifty
percent (50%) of the voting capital stock or other interest
having voting rights with respect to the election of the board of
directors or similar governing authority.
(b) "Confidential Information" shall have the meaning defined in
Section 11.1.
(c) "License Agreement" means the Development, License and Supply
Agreement between Seller and Siemens AG dated October 25, 1995,
which agreement was assigned to and assumed by Purchaser pursuant
to the Transformation Agreement between Siemens AG, Seller and
Purchaser effective January 1, 1999.
(d) "Product Specifications" means the specifications set forth in
Schedule 3, as the same may be amended from time to time by
mutual written agreement of the parties or pursuant to the terms
and conditions set forth in such schedule.
(e) "Products" mean LED chips and silicon carbide substrates which
conform to the applicable Product Specifications. Products
supplied under this Agreement will be "GaN LEDs," "InGaN LEDs"
and "SiC Wafers" as described in Schedule 3.
2. PURCHASE AND SALE
2.1 Purchase Commitment.
(a) Purchaser will purchase from Seller and Seller will sell to
Purchaser the quantity of Products shown in Schedule 1, subject
to and in accordance with the terms and conditions of this
Agreement.
(b) Purchaser shall be entitled to cancel or otherwise reduce its
purchase commitment under this Agreement, or to reschedule
shipments of Products under this Agreement, only to the extent
expressly permitted by Schedule 1.
2.2 Price.
(a) The purchase price of the Products is set forth in Schedule 2.
(b) The prices stated in this Agreement do not include transportation
or insurance costs, or any sales, use, excise or other taxes,
duties, fees or assessments imposed by any jurisdiction.
(c) All applicable taxes, duties, fees or assessments imposed by any
jurisdiction with respect to the purchase of the Products (other
than taxes on Seller's net income) will be paid by Purchaser. Any
taxes, duties, fees or assessments at any time paid by Seller
which are to be paid by Purchaser under this Agreement shall be
invoiced to Purchaser and reimbursed to Seller.
2.3 Payment Terms.
(a) Purchaser will pay for Products to be purchased under this
Agreement in accordance with the payment terms in Schedule 2.
(b) Payment will be made in U.S. dollars by wire transfer to an
account designated in writing by Seller, without reduction for
any currency exchange or other charges.
(c) Seller will provide Purchaser an invoice and/or shipping
documentation for each shipment showing the quantity shipped,
the applicable price, any amounts prepaid by Purchaser for the
shipment, and any taxes, duties, fees or other assessments due
from Purchaser with respect to the shipment.
(d) Amounts not paid when due under this Agreement shall accrue
interest at the rate of twelve percent (12%) per annum or, if
less, the maximum rate permitted by law.
3. DELIVERY
3.1 Purchase Orders, Forecasts.
(a) Purchaser will submit written purchase orders evidencing its
commitment to purchase Products prior to each scheduled shipment
date set forth in Schedule 1. Purchase orders will specify the
particular quantity of each Product type to be shipped.
Concurrently with the execution of this Agreement, Purchaser has
delivered or will deliver its purchase orders to Seller for the
quantities to be shipped during the first two monthly (four-week)
periods of the first quarterly period shown in Schedule 1. All
other purchase orders must be received at least sixty (60) days
prior to the monthly period in which shipment is scheduled
according to Schedule 1.
(b) Purchase orders may be submitted by Purchaser or by its
Affiliates acting on Purchaser's behalf and in its name. If
Purchaser requests delivery of shipments to a location other than
Regensburg, Germany, the personnel at such location shall be
regarded as authorized to act on Purchaser's behalf with respect
to scheduling and acceptance of shipments and other matters
relating thereto.
(c) The terms and conditions of this Agreement shall govern the
purchase of Products under this Agreement notwithstanding any
contrary provisions of any purchase order, order acknowledgment
or other similar document issued by either party. Purchase orders
issued under this Agreement are intended as an administrative
convenience and, in the case of InGaN LEDs, to specify the
selection of such Products, but the obligation to purchase
Products under this Agreement is not conditioned upon issuance of
a purchase order.
(d) Together with each purchase order, Purchaser shall furnish Seller
a nonbinding forecast of the mix of Products expected to be to
ordered for delivery during the three months following the period
covered by the purchase order.
(e) Seller will, within ten (10) days after receipt of a purchase
order submitted in accordance with the foregoing, issue a written
order acknowledgment advising Purchaser of the scheduled shipment
date(s) for the quantities ordered.
3.2 Shipment Schedule.
(a) Seller will use all commercially reasonable efforts to ship
Products in accordance with the shipment schedule set forth in
Schedule 1. Seller reserves the right to ship quantities prior to
the scheduled dates; provided, however, that no shipment shall be
made such that Purchaser receives the shipment earlier than the
calendar month immediately preceding the month such quantity was
originally scheduled to be shipped.
(b) Seller shall be deemed in default due to a delay in meeting the
shipment schedule set forth in Schedule 1 only if, immediately
after the last day of any calendar month specified therein, the
cumulative quantity actually shipped by Seller is less than
eighty-five percent (85%) of the cumulative quantity due to have
been shipped.
(c) In the event of a default by Seller as provided in Section
3.2(b), Purchaser shall be entitled to liquidated damages of one
percent (1%) per week of the purchase price of the delayed
Products, subject to a maximum of ten percent (10%) of such
purchase price. If Product shipments are delayed six weeks or
more due to circumstances within Seller's reasonable control,
then in lieu of the foregoing liquidated damages Purchaser may
claim damages actually resulting from the delay up to forty
percent (40%) of the purchase price of the delayed Products. This
paragraph states Purchaser's sole claim for damages resulting
from Seller's delay in delivering Products.
3.3 Packaging.
Seller will ship Products in Seller's standard packaging or packaged
in such other manner as the parties may mutually agree in writing.
3.4 Manner of Shipment.
Unless otherwise mutually agreed Products shall be shipped F.C.A.
Seller's manufacturing facilities by delivery to a transportation
company designated by Purchaser. Products shall be deemed delivered
to Purchaser when delivered to the transportation company at the
shipping point. Title and risk of loss or damage shall pass to
Purchaser upon delivery. All transportation charges and expenses,
including the cost of insurance against loss or damage in transit,
shall be Purchaser's sole responsibility. Any such amounts paid by
Seller will be invoiced to and paid by Purchaser.
4. NON-CONFORMING SHIPMENTS.
4.1 Reporting of Claims.
Except for warranty claims under Article 6, in the event any shipment
does not conform to the ordered amount and type of Product or suffers
other faults or defects clearly discernible upon reasonable
inspection, such non-conformity will be reported in writing to Seller
as soon as possible and in any event no later than forty-five (45)
days after shipment of the Product to Purchaser. All other
non-conformities in shipments shall be reported in writing to Seller
promptly upon discovery. If not so reported, the non-conformity shall
be deemed waived.
4.2 Remedies for Non-Conforming Shipments.
Seller's sole obligation with respect to shipments determined to be
non-conforming shall be, at its option, to replace the non-conforming
Products (with shipment at Seller's expense) or to issue a credit to
Purchaser in the amount of the price paid for such Products with
interest calculated at the rate of twelve percent (12%) per annum
from the date of payment to the date of credit. This paragraph states
Seller's sole obligations with respect to non-conforming shipments.
After acceptance of any shipment Purchaser's sole remedies for
defects in such shipment shall be as provided in the warranty
provisions of this Agreement.
4.3 Compliance with Instructions.
In addition to such other duties as may be imposed by law, Purchaser
will comply with all of Seller's reasonable instructions regarding
rejected goods. If Purchaser incurs any expenses in complying with
such instructions, Seller shall reimburse Purchaser for such expenses
promptly upon receipt of Purchaser's written request therefor.
5. TECHNICAL COOPERATION
Seller and Purchaser agree to have their representatives meet in person
from time to time, at mutually agreed upon times and locations but not more
frequently than once each calendar quarter, to discuss potential
improvements in and the markets for the InGaN LEDs.
6. WARRANTIES
6.1 Limited Warranty.
(a) Seller warrants to Purchaser that Products purchased from Seller
under this Agreement will conform to and perform in accordance
with the applicable Product Specifications (Attachments A, B and
C to Schedule 3).
(b) This warranty is extended only to Purchaser and does not
constitute a warranty to Purchaser's customers or any other
person. This warranty shall not apply to any defect or failure to
perform resulting in whole or in part from improper use,
application, installation or operation, and Seller shall have no
liability of any kind for failure of any equipment or other items
in which the Products are incorporated.
(c) All claims under this warranty must be reported in writing to
Seller (with such report accompanied by the Product claimed to be
defective, including the die "package" in the case of Products
sold in die form) as soon as possible, but in any event no later
than ************************ (****) days after shipment of the
Products to Purchaser. If not so reported, such claims shall be
waived.
(d) Seller's sole obligation with respect to Products determined not
to meet the terms of this warranty shall be, at its option, to
replace such Products or to issue a credit or refund to Purchaser
in the amount of the price received by Seller for the Products.
This paragraph states the exclusive remedy against Seller with
respect to breach of the warranty given herein or other alleged
defects in the Products.
6.2 Warranty Disclaimer.
THE WARRANTY IN SECTION 6.1 ABOVE IS GIVEN IN LIEU OF ALL OTHER
WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR IMPOSED
BY STATUTE OR OTHERWISE. ALL IMPLIED WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE AND MERCHANTABILITY ARE EXPRESSLY DISCLAIMED BY
SELLER.
7. INDEMNIFICATION
7.1 By Seller.
(a) Seller at its expense will defend any claim or judicial action
brought against Purchaser by a third party, and indemnify
Purchaser against any liability for damages finally awarded in
any such action, insofar as the same is based on a claim that
Products purchased under this Agreement infringe any patent of a
third party.
(b) If any Products are held to be infringing and their use or sale
enjoined, or if in the opinion of Seller any Products are likely
to become the subject of such a claim of infringement, Seller
may, in its sole discretion and at its own expense, procure a
license which will protect Purchaser against such claim without
cost to Purchaser, replace Seller's inventory of Products with
non-infringing Products, or require return of Products in
Seller's inventory and refund the price paid by Purchaser for
such Products.
(c) Seller shall have no obligation hereunder for or with respect to
claims, actions or demands alleging infringement that arise by
reason of combination of noninfringing items with any items not
supplied by Seller.
(d) This Section 7.1 states the entire liability of Seller with
respect to any claim of infringement.
7.2 Conditions of Indemnification.
Seller's obligations under the foregoing indemnity are subject to the
condition that the Purchaser give the Seller: (1) prompt written
notice of any claim or action for which indemnity is sought; (2)
complete control of the defense and settlement thereof by Seller; and
(3) cooperation of the Purchaser in such defense. The obligations
under the foregoing indemnity are also subject to the condition that
the Purchaser not enter into any compromise or settlement or make any
admission of liability without the prior written consent of the
Seller.
8. LIMITATIONS OF LIABILITY
EXCEPT AS PROVIDED IN ARTICLE 7, NEITHER SELLER NOR PURCHASER WILL HAVE ANY
LIABILITY TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR
SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE
USE OR PERFORMANCE OF ANY PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THIS LIMITATION APPLIES REGARDLESS OF WHETHER SUCH CLAIM IS
BASED ON TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY
OTHER THEORY. This limitation shall not apply to the extent liability is
mandatory by law, as for example in cases of intent or gross negligence,
and cannot be lawfully disclaimed.
9. FORCE MAJEURE
Seller shall not be in default or liable for any delay or failure in
performance of this Agreement due to strike, lockout, riot, war, fire, act
of God, accident, delays caused by Purchaser or compliance with any law,
regulation, order or direction, whether valid or invalid, of any
governmental authority or instrumentality thereof or due to any causes
beyond its reasonable control, whether similar or dissimilar to the
foregoing and whether or not foreseen. Seller shall use all commercially
reasonable efforts to avoid or remove such causes of non-performance or to
limit the impact of the event on Seller's performance and shall continue
performance with the utmost dispatch whenever such causes as removed.
10. TERMINATION
10.1 Termination upon Default or Insolvency.
Either party may terminate this Agreement by giving written notice of
termination to the other:
(a) if the other party commits a material breach of its obligations
under this Agreement or any other agreement between the parties
(including but not limited to the License Agreement) and does not
cure such breach within thirty (30) after receipt of written
notice of the breach from the non-breaching party; or
(b) if the other party becomes insolvent, or any voluntary or
involuntary petition for bankruptcy or for reorganization is
filed by or against the other party, or a receiver is appointed
with respect to all or any substantial portion of the assets of
the other party, or a liquidation proceeding is commenced by or
against the other party; provided that, in the case of any
involuntary petition or proceeding filed or commenced against a
party, the same is not dismissed within sixty (60) days.
10.2 Effect of Termination.
Nothing in this Article 10 shall affect, be construed or operate as a
waiver of any right of the party aggrieved by any breach of this
Agreement to recover any loss or damage incurred as a result of such
breach, either before or after the termination hereof.
11. CONFIDENTIAL INFORMATION
11.1 Definition.
"Confidential Information" means any information received by one
party or its Affiliates (the "receiving party") from the other party
or its Affiliates (the "disclosing party") and which the receiving
party has been informed or has a reasonable basis to believe is
confidential to the disclosing party, unless such information: (1)
was known to the receiving party prior to receipt from the disclosing
party; (2) was lawfully available to the public prior to receipt from
the disclosing party; (3) becomes lawfully available to the public
after receipt from the disclosing party, through no act or omission
on the part of the receiving party; (4) corresponds in substance to
any information received in good faith by the receiving party from
any third party without restriction as to confidentiality; or (5) is
independently developed by an employee or agent of the receiving
party who has not received or had access to such information.
11.2 Identification.
Information which the disclosing party wishes to have treated as
Confidential Information under this Agreement shall be identified at
the time of disclosure as "confidential" by marking, or in the case
of oral disclosures, shall be confirmed as such in writing within
thirty (30) days following the oral disclosure.
11.3 Confidentiality Obligations.
(a) Each party agrees to maintain Confidential Information received
from the other in confidence and neither use for any unauthorized
purpose nor disclose such Confidential Information, without the
prior written approval of the disclosing party, except for such
disclosures as are required to comply with any order of a court
or any applicable rule, regulation or law of any jurisdiction or
as provided in Section 11.4. Confidential Information may be used
only in the performance of this Agreement and for such other
purposes as the disclosing party may authorize in writing.
(b) In the event that a receiving party is required by judicial or
administrative process to disclose Confidential Information of
the disclosing party, it shall promptly notify the disclosing
party and allow the disclosing party a reasonable time to oppose
such process.
(c) Within each party and their respective Affiliates, Confidential
Information shall be disclosed only on a need-to-know basis. Each
party shall protect Confidential Information of the other by
using the same degree of care, but not less than a reasonable
degree of care, to prevent unauthorized disclosure or use as that
party uses to protect its own confidential information of like
nature.
(d) The foregoing obligations shall remain in force with respect to
each item of Confidential Information for five (5) years
following the date such information is first disclosed under this
Agreement.
(e) Each party represents and warrants to the other that its
employees, agents or consultants having access to any
Confidential Information of the other party shall be subject to a
valid, binding and enforceable agreement to maintain such
Confidential Information in confidence.
(f) Each party agrees upon request of the other party to return all
Confidential Information received from the other party under this
Agreement.
11.4 Terms of Agreement.
Purchaser and Seller agree that the terms of this Agreement shall be
treated as Confidential Information of each other subject to this
Article 11; provided, however, that either party may, upon notice to
the other, make such public disclosures regarding this Agreement as
in the opinion of counsel for such party are required by applicable
securities laws or regulations.
12. ADDITIONAL UNDERTAKINGS
12.1 Use of Trademarks, Etc.
Neither party will, without the prior written consent of the other,
(a) use in advertising, publicity or otherwise in connection with any
Products sold under this Agreement, any trade name, trademark, trade
device, service xxxx, or symbol owned by the other party or its
Affiliates; or (b) represent, either directly or indirectly, that any
product of such party or its Affiliates is a product manufactured by
the other party or its Affiliates, or vice versa.
12.2 Use of SiC Wafers.
Purchaser agrees that it will not, without Seller's prior written
consent, use SiC Wafers supplied under this Agreement in the bulk
growth of silicon carbide or in the development of processes for bulk
growth of silicon carbide, nor sell or otherwise transfer or make
available any SiC Wafers to any other person or entity, including
Purchaser's Affiliates, except as provided below. Purchaser may
transfer SiC Wafers supplied under this Agreement to its Affiliates
that are not engaged in the bulk growth of silicon carbide or in the
development of processes for bulk growth of silicon carbide provided
the Affiliate agrees to be bound by the restrictions stated in this
paragraph. Purchaser will be responsible for any breach of the
restrictions by its Affiliate.
12.3 Resale of Products.
Purchaser agrees that it will not, without Seller's prior written
consent, sell or otherwise transfer or make available LED Products
supplied under this Agreement to any other person or entity,
including Purchaser's Affiliates, in the form of LED die or in any
form other than lamp or other packaged form, except as provided below
or permitted by the License Agreement. Purchaser may transfer such
LED Products to its Affiliates in die form for packaging provided the
Affiliate agrees to be bound by the restrictions stated in this
paragraph. Purchaser will be responsible for any breach of the
restrictions by its Affiliate. If Purchaser's inventories of LED
Products supplied under this Agreement exceed its demand for packaged
LEDs, or if due to technical reasons Purchaser is unable to supply
packaged LEDs in a form that meets a particular customer's
requirements, then at Purchaser's request Seller will in good faith
discuss with Purchaser the possibility of giving its consent to the
resale of LED Products in die form in that circumstance.
13. GENERAL
13.1 Notices.
All notices under this Agreement shall be in writing and sent by
prepaid airmail post, by reputable courier service, or by facsimile
or electronic message (with a confirmation copy concurrently
dispatched by prepaid airmail post or courier service), to the
addresses of the respective parties as set forth by their signatures
below or to such other address as the party may hereafter specify by
written notice so given. Notices shall be effective upon receipt at
the location of the specified address.
13.2 Authority; No Conflicting Obligations.
Each party warrants that its has all requisite power and authority to
enter into and perform this Agreement, and that it has no agreement
with any third party or commitments or obligations which conflict in
any way with its obligations hereunder.
13.3 Relationship of the Parties.
The relationship of Purchaser and Seller under this Agreement is
intended to be that of independent contractors. Nothing herein shall
be construed to create any partnership, joint venture or agency
relationship of any kind. Neither party has any authority under this
Agreement to assume or create any obligations on behalf of or in the
name of the other party or to bind the other party to any contract,
agreement or undertaking with any third party.
13.4 Assignment.
Except as expressly provided for in this Agreement, neither this
Agreement nor any right or obligations hereunder shall be assignable
by either party without the prior written consent of the other party
and any purported assignment without such consent shall be void.
Either party may assign this Agreement without such consent in
connection with the sale or transfer of all or substantially all of
the assets of the assigning party. Any permitted assignee shall
assume all obligations of its assignor under this Agreement. No
assignment shall relieve any party of responsibility for the
performance of its obligations hereunder.
13.5 Dispute Resolution.
Any disputes or claims arising from this Agreement or its breach
shall be submitted to and resolved exclusively by arbitration
conducted in accordance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce. The arbitration
shall be conducted by three (3) arbitrators appointed in accordance
with such rules. The place of arbitration shall be in Geneva,
Switzerland. An award rendered in the arbitration shall be final and
binding upon the parties and judgment may be entered thereon in any
court of competent jurisdiction.
13.6 Severability.
If any provision of this Agreement is found invalid or unenforceable,
the remaining provisions will be given effect as if the invalid or
unenforceable provision were not a part of this Agreement.
13.7 Amendments; Waiver.
This Agreement may not be amended except in a writing signed by the
authorized representatives of both parties. No waiver of any
provision of this Agreement shall be effective unless made in writing
and signed by the party sought to be charged therewith. The failure
of either party to enforce any provision of this Agreement shall not
constitute or be construed as a waiver of such provision or of the
right to enforce it at a later time.
13.8 No Implied License.
Nothing in this Agreement shall be construed to convey any license
under any patent, copyright, trademark or other proprietary rights
owned or controlled by either party, whether relating to the Products
sold or any other matter.
13.9 Export Regulation.
Purchaser shall comply in all respects with all laws and regulations
of the United States government or any agency thereof pertaining to
exports.
13.10 Enforcement Costs.
The prevailing party in any arbitration or judicial action brought to
enforce the provisions of this Agreement shall be entitled to recover
its costs and expenses, including reasonable attorneys' fees,
incurred in filing and prosecuting or defending such action.
13.11 Governing Law.
This Agreement shall be governed by and construed in accordance with
the internal laws of Switzerland, without regard to conflicts of laws
principles.
13.12 Construction.
The captions contained in this Agreement are for reference only and
shall not be used in its construction or interpretation. The
provisions of this Agreement shall be construed and interpreted
fairly to both parties without regard to which party drafted the
same.
13.13 United Nations Convention.
The United Nations Convention on Contracts for the International Sale
of Goods shall not apply to this Agreement.
13.14 Entire Agreement.
This Agreement sets forth the entire agreement between the parties
with respect to the subject matter hereof and supersedes all previous
agreements and understandings between the parties, whether oral or
written, relating to such subject matter.
IN WITNESS WHEREOF, the parties, through their respective duly authorized
officers, have executed this Agreement to be effective as of the Effective Date
set out in the preamble hereto.
CREE RESEARCH, INC. OSRAM OPTO SEMICONDUCTORS
GMBH & CO.
By /s/ F. Xxxx Xxxxxx By /s/ X. Xxxxxx
------------------------------- ---------------------------------
F. Xxxx Xxxxxx, Chairman & CEO X. Xxxxxx, General Manager
Date August 31, 1999 Date August 31, 1999
------------------------------- ---------------------------------
By /s/ X. Xxxxx
---------------------------------
X. Xxxxx, Purchasing Manager
Date August 31, 1999
---------------------------------
Address for Notices Address for Notices
Cree Research, Inc. OSRAM Opto Semiconductors GmbH & Co. OHG
0000 Xxxxxxx Xxxxx Xxxxxxxxxxxxx. 0
Xxxxxx, Xxxxx Xxxxxxxx 00000 93049 Regensburg
USA Germany
Attention: F. Xxxx Xxxxxx, Chairman Attention: X. Xxxxxx and X. Xxxxx
Fax No: x0 (000) 000-0000 Fax No: 00 000 000 0000
SCHEDULE 1
Quantity and Shipment Schedule
A. Quantity Commitment.
1. During the period commencing the Effective Date of this Agreement and
ending September 24, 2000 Purchaser will purchase from Seller the
quantities of each Product type shown below:
GaN LEDs **********
InGaN LEDs (std. size) **********
InGaN LEDs (small size) **********
SiC Wafers ********** (50 mm dia.)
2. The "small size" InGaN LED part referenced above has not been
developed by Seller nor qualified by Purchaser. Purchaser's obligation
to buy and Seller's obligation to sell such Product under this
Agreement are subject to the condition that the parties mutually agree
in writing on specifications for the Product. The parties shall
cooperate diligently and in good faith with the goal of Seller
developing the Product, Purchaser qualifying the Product and the
parties reaching mutual agreement on specifications for the Product
such that shipments of the Product may commence under this Agreement
beginning January 1, 2000. Seller will endeavor to deliver engineering
samples and preliminary specifications by August 31, 1999 and
qualification samples and proposed final specifications by September
30, 1999. Failure of the parties to agree on specifications for such
Product shall not give either party the right to terminate this
Agreement.
3. Subject to the conditions set forth above Purchaser has committed to
purchase small size LEDs for use in fulfilling Purchaser's delivery
obligations to a specific customer which Purchaser has identified
separately to Seller (the "End Customer"). If the End Customer ceases
purchasing InGaN LEDs from Purchaser, Purchaser may, by giving Seller
not less than ninety (90) days prior written notice, change all
quantities of small size InGaN LEDs scheduled for shipment under this
Agreement after the effective date of such notice to quantities of
standard size InGaN LEDs having the same aggregate purchase price as
the quantities of small size InGaN LEDs to have been purchased
hereunder.
B. Shipment Schedule.
1. The shipment schedule is as follows:
Quarterly (13-Week) Period Ending
-------------------------------------------
Product 12/26/99 3/26/00 6/25/00 9/24/00
--------------------------------------------------------------------
GaN LEDs ******* ******* ******* *******
InGaN LEDs (std. size) ******* ******* ******* *******
InGaN LEDs (small size) ******* ******* ******* *******
SiC Wafers ******* ******* ******* *******
2. Subject to the provisions of this Agreement, unless otherwise mutually
agreed the quarterly amounts shown above will be shipped in three
shipments on the last day of the fourth, eighth and final week of each
quarterly period. Unless otherwise mutually agreed or specified in
purchase orders timely submitted in accordance with this Agreement,
the mix of Products for each shipment shall be in accordance with
Attachment A to this Schedule 1. Unless otherwise mutually agreed, the
quantity of green InGaN LEDs purchased under this Agreement in any
quarterly period shall not exceed the quantities of ***** nm and *****
nm InGaN LEDs for the period shown on Attachment A by more than
********* percent (****%).
3. Purchaser may without charge reschedule shipments of quantities of GaN
LEDs shown above under the following terms:
(a) for quantities scheduled to be shipped more than twenty-four
(24) weeks following Seller's receipt of written notice from
Purchaser requesting rescheduling, Purchaser may reschedule up
to thirty percent (30%) of such quantity for up to ninety (90)
days after the originally scheduled shipment date but not
later than December 24, 2000; and
(b) for quantities scheduled to be shipped more than twelve (12)
weeks but within twenty-four (24) weeks following Seller's
receipt of written notice from Purchaser requesting
rescheduling, Purchaser may reschedule up to ten percent (10%)
of such quantity for up to ninety (90) days after the
originally scheduled shipment date but not later than December
24, 2000.
4. Purchaser may without charge reschedule shipments of up to the
quantity of InGaN LED Products shown below from the quarterly
(13-week) period indicated to the next succeeding quarterly
(13-week) period, provided Seller receives written notice from
Purchaser requesting such rescheduling not later than sixty (60)
days prior to the beginning of the quarterly period in which the
quantities were originally scheduled for shipment.
Quarterly (13-Week) Period Ending
---------------------------------
Product 3/26/00 6/25/00 9/24/00
------------------------------------------------------------
InGaN LEDs (std. size) ******* ******* *******
InGaN LEDs (small size) ******* ******* *******
5. Purchaser may without charge reschedule shipments of quantities of
InGaN GaN LEDs, excluding the quantities shown in the preceding
paragraph, under the following terms:
(a) for quantities scheduled to be shipped more than twenty-four
(24) weeks following Seller's receipt of written notice from
Purchaser requesting rescheduling, Purchaser may reschedule up
to twenty percent (20%) of such quantity for up to ninety (90)
days after the originally scheduled shipment date but not
later than December 24, 2000; and
(b) for quantities scheduled to be shipped more than twelve (12)
weeks but within twenty-four (24) weeks following Seller's
receipt of written notice from Purchaser requesting
rescheduling, Purchaser may reschedule up to ten percent (10%)
of such quantity for up to ninety (90) days after the
originally scheduled shipment date but not later than December
24, 2000.
6. In all other cases Purchaser may reschedule shipments only with
Seller's mutual written agreement. Purchaser's notice requesting
rescheduling must specify the quantity to be deferred and the date on
which shipment is to be made. Subject to the foregoing, a shipment may
be rescheduled any number of times under this paragraph.
SCHEDULE 1 - ATTACHMENT A
Chip (1) Oct-99 Nov-99 Dec-99 Jan-00 Feb-00 Mar-00 Apr-00 May-00 Jun-00 Jul-00 Aug-00 Sep-00 Total
GaN Total *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
InGaN:
**** nm - Total *** *** *** *** *** *** *** *** *** *** *** *** ***
Standard Size *** *** *** *** *** *** *** *** *** *** *** *** ***
**** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
**** nm - Total *** *** *** *** *** *** *** *** *** *** *** *** ***
Small Size *** *** *** *** *** *** *** *** *** *** *** *** ***
**** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
**** nm Total *** *** *** *** *** *** *** *** *** *** *** *** ***
**** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
**** nm Total *** *** *** *** *** *** *** *** *** *** *** *** ***
**** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
**** nm Total *** *** *** *** *** *** *** *** *** *** *** *** ***
**** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
**** nm Total *** *** *** *** *** *** *** *** *** *** *** *** ***
**** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** *** *** *** *** *** *** *** *** ***
Up-Potential
(Confirmed)
InGaN - Standard Total *** *** *** *** *** *** *** *** *** *** *** *** ***
Size (2)
InGaN - Small Total *** *** *** *** *** *** *** *** *** *** *** *** ***
Size (3)
(1) Total per product and per destination.
(2) **** nm unless otherwise specified in order.
(3) **** nm.
SCHEDULE 2
Price and Payment Schedule
A. Prices.
1. Prices shall be determined as follows, subject to Paragraph (A)(2) of
this Schedule 2:
GaN LEDs:
Incremental Quantities Unit Price (US$)
-------------------------------------------
0 to ***** $*****
***** to ***** $*****
***** and greater $*****
InGaN LEDs (std. size):
Unit Price (US$)
----------------------------------
Incremental Quantities Std. Specification **
(All InGaN LEDs) InGaN LEDs* ********
------------------------------------------------------------
***** to ***** $***** $*****
***** to ***** $***** $*****
***** to ***** $***** $*****
***** and greater $***** $*****
* Part Nos. **********, **********, **********, **********
**********, and **********.
**Applicable only to ************ parts scheduled for shipment
after December 26, 1999.
InGaN LEDs (small size):
Incremental Quantities Unit Price (US$)
-------------------------------------------
0 to ***** $*****
***** to ***** $*****
***** and greater $*****
SiC Wafers:
Incremental Quantities Unit Price (US$)
-------------------------------------------
***** to ***** $*****
***** to ***** $*****
***** to ***** $*****
***** and greater $*****
The parties acknowledge that the reduction in per unit prices
reflects Seller's expectation that it will improve manufacturing
yields and reduce per unit cost.
2. Purchaser and Seller will share the risk of currency exchange rate
fluctuations, as provided in this paragraph, for units shipped
pursuant to Schedule 1. The unit price for such shipments shall be
adjusted by the applicable percentage below according to the value of
the "Euro-Dollar Exchange Rate" on the shipment date. For purposes of
this paragraph, the "Euro-Dollar Exchange Rate" means the average of
the foreign exchange rates for Euros per U.S. Dollar, as published in
the Wall Street Journal during the thirty (30) calendar days preceding
the date of shipment, for rates quoted in New York the preceding
business day for trading among banks in amounts of $1 million or more.
Percentage
Euro-Dollar Exchange rate Price Adjustment
---------------------------------------------------------------------
Equal to or greater than **** -****%
Equal to or greater than **** and less than **** -****%
Greater than **** and less than **** no adjustment
Equal to or less than **** and greater than **** +****%
Equal to or less than **** +****%
B. Payment Terms.
Products will be invoiced upon shipment. Invoices shall be due and payable
within twenty (20) days from the invoice date.
SCHEDULE 3
Product Specifications
A. GaN LEDs. The GaN LEDs subject to this Agreement are Seller's part number
*********** and have the product specifications set forth in Attachment A.
B. InGaN LEDs.
1. The standard size InGaN LEDs subject to this Agreement are
identified by Seller's part numbers as follow and have the product
specifications set forth in Attachment B:
***************
***************
***************
***************
***************
The specifications for the ************************ part require a
dominant wavelength of ********. Purchaser may elect to substitute a
part, identified as special part number ************************,
with the same specifications as the ************************ part
except that the dominant wavelength shall be ********. Seller will
supply Purchaser engineering samples of the ******* part without
charge not later than September 1, 1999. Purchaser must give Seller
written notice of its election to substitute the ******* part on or
before November 1, 1999; otherwise, the election shall lapse unless
otherwise agreed mutually in writing. If Purchaser timely elects to
substitute the ******* part, Seller shall not be obligated to ship
any ************************ parts under this Agreement after
December 26, 1999.
2. Product Specifications for the small size InGaN LED shall be
mutually agreed upon in writing by the parties.
C. SiC Wafers. Product Specifications for the SiC Wafers are set forth in
Attachment C.
SCHEDULE 3 - ATTACHMENT A
Information in attachment omitted in its entirety and filed separately with the
Commission pursuant to a confidential treatment request under Rule 24b-2 of the
Commission.
SCHEDULE 3 - ATTACHMENT B
Information in attachment omitted in its entirety and filed separately with the
Commission pursuant to a confidential treatment request under Rule 24b-2 of the
Commission.
SCHEDULE 3 - ATTACHMENT C
Information in attachment omitted in its entirety and filed separately with the
Commission pursuant to a confidential treatment request under Rule 24b-2 of the
Commission.
