EXHIBIT 10.1
CELERITEK/TELEDYNE CONFIDENTIAL
SUPPLY AGREEMENT
This SUPPLY AGREEMENT (this "Agreement") is effective as of the Closing of the
Asset Purchase Agreement (as defined below) (the "Effective Date") by and
between CELERITEK, INC., a California corporation with a principal place of
business at 0000 Xxxxx Xxxxxxxxx, Xxxxx Xxxxx, XX 00000 ("Celeritek"), and
TELEDYNE WIRELESS, INC. (D/B/A TELEDYNE MICROWAVE), a Delaware corporation with
a principal place of business at 0000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxx Xxxx, XX
00000 ("Buyer" together with Celeritek, each a "Party" and collectively the
"Parties").
RECITALS
WHEREAS, Celeritek and Buyer are parties to that certain Asset Purchase
Agreement of even date herewith pursuant to which Buyer acquired certain of the
assets of Celeritek related to its defense division ("ASSET PURCHASE
AGREEMENT");
WHEREAS, as a condition to the Asset Purchase Agreement, Celeritek and
Buyer shall have entered in an agreement for the supply by Celeritek to Buyer of
certain products of Celeritek solely for incorporation into certain products of
Buyer related to the assets sold under the Asset Purchase Agreement;
WHEREAS, Celeritek is willing to supply, and Buyer desires to purchase
such products, in each case, solely pursuant to the terms and conditions of this
Agreement; and
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the Parties hereby agree as follows:
ARTICLES
1. DEFINITIONS
1.1 "AFFILIATE" means, with respect to a Party to this Agreement, any
entity directly or indirectly controlling or controlled by or in common control
with such Party, but only for so long as such control exists, where "control" is
defined as the ownership of more than fifty percent (50%) of the equity or
beneficial interests of such entity, or other voting rights entitled to elect
directors, or if not a corporation, the corresponding managing authority.
1.2 "BUYER PRODUCTS" has the meaning assigned to the term "Products" in
the Asset Purchase Agreement.
1.3 "CAPACITORS" means Celeritek's Si capacitors with the part numbers
set forth in EXHIBIT A.
1.4 "CHANGE OF CONTROL" means, with respect to a Party to this
Agreement: (A) the direct or indirect acquisition of either (i) the majority of
the voting stock of such Party or any Parent of such Party or (ii) all or
substantially all of the assets of such Party, by another entity in a single
transaction or series of related transactions; or (B) such Party is merged with,
or into, another entity.
1.5 "CONFIDENTIAL INFORMATION" means any information disclosed by one
Party (the "Disclosing Party") to the other Party (the "Receiving Party") that
(a) if disclosed in tangible form, is conspicuously marked with a "confidential"
or "proprietary" legend; or (b) if disclosed orally, is clearly designated as
confidential at the time of disclosure and is specifically identified in a
confirmatory writing sent to the Receiving Party within thirty (30) days after
initial disclosure. The non-use and non-disclosure obligations of
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the Receiving Party under this Agreement shall not, however, apply to any
information which (v) is furnished to a third party by the Disclosing Party
without restrictions substantially similar to the non-use and non-disclosure
terms and conditions of this Agreement; (w) was already known by the Receiving
Party at the time of disclosure as shown by the Receiving Party's files and
records immediately prior to the time of such disclosure; (x) was disclosed to
the Receiving Party by a third party who had the right to make such disclosure
without any confidentiality restrictions; (y) is already at the time of
disclosure hereunder, or through no fault of the Receiving Party has become
after the time of disclosure hereunder, generally available to the public; or
(z) was independently developed by the Receiving Party without the use of or
reference to Confidential Information of the Disclosing Party.
1.6 "DEVICES" means Celeritek's GaAs FETs and MMICs with the part
numbers set forth in EXHIBIT A.
1.7 "INTELLECTUAL PROPERTY RIGHTS" means all of the following types,
which may exist or be created under the laws of any jurisdiction in the world:
(i) all Patent Rights; (ii) all copyrights, copyright registrations and
applications therefore and all other rights corresponding thereto throughout the
world (collectively, "Copyrights"); (iii) all trade secrets; (iv) all mask
works, and (v) all other intellectual property or proprietary rights (other than
Patent Rights, Copyrights and trade secrets).
1.8 "PARENT" means, with respect to a Party to this Agreement, any
entity directly or indirectly controlling such Party, but only for so long as
such control exists, where "control" is defined as the ownership of more than
fifty percent (50%) of the equity or beneficial interests of such entity, or
other voting rights entitled to elect directors, or if not a corporation, the
corresponding managing authority.
1.9 "PATENT RIGHTS" means (i) any pending or issued United States,
foreign or international patent or patent application; (ii) any continuations,
continuations-in-part, substitutions or divisional applications thereof; (iii)
any patents issuing on any of the foregoing applications; (iv) any renewals,
reissues, re-examinations or extensions of any such patents or patent
applications; and (v) any foreign counterparts or equivalents of any of the
foregoing.
1.10 "PRODUCT" or "PRODUCTS" means individually or collectively the
Devices, Substrates and Capacitors.
1.11 "SUBSIDIARY" means, with respect to any third party, any entity
directly or indirectly controlled by such third party, but only for so long as
such control exists, where "control" is defined as the ownership of more than
fifty percent (50%) of the equity or beneficial interests of such entity, or
other voting rights entitled to elect directors, or if not a corporation, the
corresponding managing authority.
1.12 "SUBSTRATE DESIGNS" means the mask works, layouts and other drawings
of the design of the Substrates transferred to Buyer under the Asset Purchase
Agreement.
1.13 "SUBSTRATES" means the substrate products with the Celeritek part
numbers set forth in EXHIBIT A.
2. PRODUCT SUPPLY
2.1 FORECAST.
(a) Delivery. Within thirty (30) days after the Effective Date,
Buyer shall deliver to Celeritek, and thereafter on a monthly basis, a written
rolling forecast of its anticipated requirements for Products over the next
twelve (12) month period (each a "FORECAST"). Buyer will use good faith efforts
to
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provide accurate Forecasts based on the best reasonable information available
at the time of the Forecast. Subject to Section 2.2(d) below, there is no
minimum purchase commitment under this Agreement.
(b) Forecast Commitments. The first two (2) months of Buyer's
Forecast for Devices (other than MMICs), Capacitors and Substrates and the first
three (3) months of Buyer's Forecast for MMICs shall be firm and binding, with
all remaining months in each such Forecast to be used for planning purposes
only.
2.2 ORDER PROCESS.
(a) Purchase Orders. From time to time during the term of this
Agreement and subject to the terms and conditions of this Agreement, Buyer shall
submit to Celeritek written purchase orders ("Purchase Orders") for Products
which Purchase Orders will (i) expressly refer to this Agreement; (ii) specify
quantities ordered; (iii) specify the requested shipping date ("Requested
Shipping Date") which shall not be more than six (6) months after the date on
which such Purchase Order is submitted; and (iv) include the destination address
and any special shipping instructions. The Parties agree and acknowledge that
the terms and conditions of this Agreement (including Exhibits) will exclusively
control all orders for Products and will supersede any terms and conditions
contained in Buyer's Purchase Orders, in any quotation or acknowledgment and any
other business form that either party may use in connection with the
transactions contemplated by this Agreement, regardless of any failure of a
receiving party to object to such terms or conditions.
(b) Acceptance of Purchase Orders. Each Purchase Order submitted
by Buyer hereunder shall be subject to Celeritek's written acceptance in
accordance with the terms hereof. Celeritek will use commercially reasonable
efforts to give written notice of acceptance or rejection for each Purchase
Order within two (2) business days after receipt of such Purchase Order,
identifying a scheduled shipping date ("Scheduled Shipping Date") with any such
acceptance. Scheduled Shipping Dates will be assigned by Celeritek as close as
reasonably practicable to the Requested Shipping Date identified in the Purchase
Order in accordance with the applicable lead time under Section 2.2(e) below.
The orders in each Purchase Order, once accepted by Celeritek in writing
pursuant to this Section 2.2(b), shall be binding, and any cancellations or
reschedule of shipment of such orders shall be governed by Sections 2.2(c).
Subject to the terms and conditions of this Agreement, Celeritek agrees to
accept all Purchase Orders for Products which correspond to the quantities
provided in Buyer's relevant Forecast which are firm and binding as set forth
under Section 2.1(b) above.
(c) Rescheduling & Cancellation. Buyer shall only be entitled to
reschedule a Scheduled Shipping Date or cancel any order of Products pursuant to
an accepted Purchase Order upon Celeritek's prior written consent.
(d) Minimum Order Lots. All orders for (i) Capacitors shall be in
multiples of an entire wafer and (ii) Substrates shall be in multiples of an
entire array.
(e) Lead Times. Lead times with respect to all Products shall be
four (4) weeks.
2.3 PRICING. The prices for each of the Products purchased during the
term of this Agreement are set forth in EXHIBIT B attached hereto. If, during
the term of this Agreement, Celeritek grants any third party more favorable
pricing for Products on substantially similar terms and conditions for
substantially similar or lesser quantities of Products, Celeritek shall notify
Buyer thereof in writing within thirty (30) days of granting such third party
such more favorable pricing and Buyer shall have fifteen (15) days to notify
Celeritek of its acceptance of such terms ("PRICING ADJUSTMENT DATE"). Provided
Buyer has notified Celeritek of its acceptance thereof within such fifteen (15)
day period, the pricing in EXHIBIT B shall be deemed automatically adjusted to
such more favorable pricing. For avoidance of doubt, such more favorable pricing
shall only be
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effective on a forward going basis and solely with respect to those Products,
the obligation for the supply or purchase of which arose after the Pricing
Adjustment Date.
2.4 RESALE RESTRICTIONS. Except as set forth under Section 3.2 below,
Buyer understands and agrees that its purchase of Products hereunder shall be
solely for incorporation into Buyer's Products for resale as part of and
incorporated into Buyer's Products and not on a "stand-alone" basis, i.e. other
than as part of and incorporated into Buyer's Products.
2.5 OTHER TERMS AND CONDITIONS. In addition to the terms and conditions
set forth in the main body of this Agreement, Buyer's purchase of Products
hereunder shall be subject to the terms and conditions set forth in EXHIBIT C,
in the event of any conflict between the terms and conditions set forth in the
main body of this Agreement and the terms and conditions set forth in EXHIBIT C,
the terms and conditions set forth in the main body of the Agreement shall
govern.
2.6 LAST TIME BUY. In the event Buyer receives a notice of termination
pursuant to Section 6.3 of this Agreement, Buyer shall have the right, in
addition to any binding commitments for Products under Section 2.1(b) above
existing at the time of receipt of such notice, to submit, within thirty (30)
days of receipt of such notice of termination, a Purchase Order for a final,
one-time, last buy of Products ("LAST TIME BUY"), provided that (1) other than
Sections 2.1(a) (Forecasts), Section 2.1(b) (Forecast Commitments), such
Purchase Order conforms to the other terms and conditions of this Agreement; (2)
the Requested Shipping Dates for all Products are prior to the effective date of
termination of the Agreement (TERMINATION DATE"), provided that Celeritek shall
be entitled to extend the Scheduled Shipping Date for any Products beyond the
Termination Date to the extent deemed reasonably required by Celeritek to
deliver the quantity of Products of Buyer's Last Time Buy; and (3) the
quantities of Products of such Last Time Buy represent a good faith, reasonable
estimate on the part of Buyer of its requirement for Products over the eighteen
(18) months following delivery of the Purchase Order for the Last Time Buy. For
avoidance of doubt, in no event shall Buyer's Last Time Buy be deemed to require
Celeritek to obtain any additional manufacturing capacity or personnel resources
to fulfill such Last Time Buy, which, if in Celeritek's good faith, reasonable
opinion will be required to fulfill such Last Time Buy, the parties shall
negotiate in good faith alternate quantities of Products based on Celeritek's
then existing and available manufacturing capacity and personnel resources and
Buyer's estimated requirements.
2.7 SUBSTRATES. Celeritek's obligation to deliver the Substrates
hereunder is conditioned upon Buyer's timely delivery to Celeritek of a complete
and accurate copy of the relevant associated Substrate Design(s) and Celeritek
shall have no liability hereunder based on Buyer's failure to do so. In
connection with the foregoing, Buyer hereby grants Celeritek, a worldwide,
non-exclusive, royalty free, right and license, including the right to grant
sublicenses, under Buyer's Intellectual Property Rights to use, reproduce, and
distribute such Substrate Designs and to make, have made, import, sell and offer
for sale the Substrates, in each case solely for or on behalf of Buyer and not
for or on behalf of any third party. For avoidance of doubt, subject to Section
6.5, this license terminates upon the termination of this Agreement.
3. ESCROW & LICENSE
3.1 DEPOSIT. Promptly, but in no event more than thirty (30) days after
the Effective Date of this Agreement, Celeritek and Buyer agree to negotiate a
mutually agreeable escrow agreement with DSI, or other mutually agreeable entity
(the "Escrow Agent") pursuant to which Buyer shall be named as a beneficiary to
and have the right to receive a copy of (i) specifications of the materials
underlying the Devices and Capacitors; (ii) process specifications for the
manufacture of the Devices and Capacitors, (iii) mask works and designs for the
Devices and Capacitors, respectively; (iv) testing procedures used to
characterize Devices and Capacitors (in either electronic media form or hard
copy) (collectively, the "Deposit"). All costs of establishing and maintaining
the Deposit shall be borne exclusively by Buyer.
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CELERITEK/TELEDYNE CONFIDENTIAL
3.2 DEPOSIT LICENSE. Subject to the terms and conditions of this Agreement,
Celeritek hereby grants Buyer a worldwide, limited, non-exclusive,
non-transferable, non-sublicensable, right and license under Celeritek's
Intellectual Property Rights existing on the Effective Date and during the term
of this Agreement in and to the Deposit and the Products to make or have made
the Devices and Capacitors itself or through any contract manufacturer and to
use, sell, import export or otherwise commercialize such Products either (i) as
part of and incorporated into Buyer's Products or (ii) on a "stand-alone" basis,
i.e. except as part of and incorporated in Buyer's Products. The foregoing
license (1) under (i) above shall be royalty free and (2) under (ii) above shall
be subject to the payment of a royalty in accordance with Section 3.4 below. The
foregoing licenses are a present grant of rights exercisable by Buyer upon a
release of the Deposit under Section 3.3 below. The term of the foregoing
licenses shall be solely for a period of three (3) years commencing on the
Effective Date hereof (which shall survive termination of this Agreement in
accordance with Section 6.6 below). The foregoing licenses include the right to
modify and create derivative works of the Deposit for purposes of creating
improvements to the Devices or Capacitors as deemed reasonably necessary by
Buyer, it being understood that for avoidance of doubt, the foregoing licenses
do not entitle and do not constitute a grant under any of Celeritek's
Intellectual Property Rights to us, modify or create derivative works of the
Deposit to develop any other products or services.
3.3 RELEASE CONDITIONS. Buyer shall be entitled to receive a copy of the
Deposit in accordance with the procedure therefor set forth in the Escrow
Agreement upon the occurrence of any one of the following events: (1) Celeritek
ceases to offer for sale any Device or Capacitor or (2)(i) Celeritek files a
voluntary petition under Chapter 7 of the United States Bankruptcy Code (the
"Code"); (ii) an involuntary petition under Chapter 7 of the Code is filed
against Licensor, and such petition is not dismissed within thirty (30) days of
such filing; or (iii) Licensor files a voluntary petition, or an involuntary
petition is filed against Licensor, in each case under Chapter 11 of the Code
and, the trustee, or Celeritek as the debtor in possession, fails to assume
(including by way of rejection) this Agreement. For avoidance of doubt, in the
event of a release pursuant to subsection 3.3(1) above, the release of the
Deposit, and the license granted under 3.2 above with respect thereto, shall be
limited to the specific Device or Capacitor identified by Celeritek's serial
number which Celeritek has ceased to offer for sale.
3.4 DEPOSIT LICENSE ROYALTIES & PAYMENT.
(a) Royalty. In consideration of the rights and licenses granted to the
Deposit as set forth under Section 3.2(ii) above, Buyer shall pay Celeritek the
per unit royalty set forth in EXHIBIT B with respect to each Device and
Capacitor sold pursuant to Section 3.2(ii) above ("Royalties"). Royalties shall
be payable to Celeritek or relevant trustee or successor to the Intellectual
Property Rights in and to the Deposit, as the case may be (each generally
referred to under this Section 3.4 only as "Trustee") on a calendar quarterly
basis concurrently with delivery of the applicable Quarterly Report (as defined
below) for such quarter.
(b) Royalty Reports & Audit. No later than thirty (30) days after the
end of each calendar quarter after a release of the Deposit, Buyer shall deliver
to Trustee a written report showing the number of Devices and Capacitors sold on
a "stand-alone" basis pursuant to Section 3.2(ii) above during such quarterly
period and the computation of amounts due with respect thereto under 3.4(a)
above ("Quarterly Report"). During the term of this Agreement and for three (3)
years thereafter, Buyer shall maintain complete and accurate books and records
with respect to the manufacture and sale of Devices and Capacitors under Section
3.2(ii) above, or otherwise pertaining to the payment of fees hereunder by
Buyer, including without limitation all underlying data sufficient to support
the information disclosed in the Quarterly Reports ("Buyer Records"). Trustee
may have an independent auditor, on at least fifteen (15) days prior notice to
Buyer, audit Buyer Records, provided that such audits shall not be performed
more frequently than once in any twelve (12) month period, unless an audit
reveals an underpayment and then Trustee shall have the right to conduct an
additional audit during such twelve (12) month period. The audit will be at
Trustee's cost and expense,
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unless, however, such audit reveals an underpayment of five percent (5%) or more
for the period audited, then Buyer shall immediately pay the shortage, any
applicable interest and the costs of such audit.
4. CONFIDENTIALITY
4.1 OBLIGATIONS. The Receiving Party will not use any Confidential
Information of the Disclosing Party except in performance of this Agreement, and
will disclose the Confidential Information of the Disclosing Party only to the
employees and independent contractors of the Receiving Party who have a need to
know such Confidential Information for purposes of this Agreement and who are
under a duty of confidentiality no less restrictive than the Receiving Party's
hereunder. The Receiving Party will protect the Disclosing Party's Confidential
Information in the same manner as the Receiving Party protects its own
confidential or proprietary information of a similar nature, and in no event
with less than reasonable care. Notwithstanding the foregoing, the Receiving
Party may disclose Confidential Information of the Disclosing Party to the
extent that such disclosure is required by law or by the order of a court or
similar judicial or administrative body, provided that the Receiving Party
notifies the Disclosing Party of such required disclosure promptly and in
writing, and cooperates with the Disclosing Party, at the Disclosing Party's
request and expense, in any lawful action to contest or limit the scope of such
required disclosure. Notwithstanding the provisions of this Agreement, each
Party may disclose the terms of this Agreement (a) in connection with the
requirements of an initial public offering or securities filing; (b) in
confidence, in connection with a merger or acquisition or proposed merger or
acquisition, or the like; (c) in confidence, to accountants, banks, attorneys
and financing sources and their advisors; or (d) in confidence, in connection
with the enforcement of this Agreement or rights under this Agreement. For
avoidance of doubt, the entire contents of the Deposit shall be deemed
Celeritek's Confidential Information. Buyer shall not, and shall not authorize
any third party to reverse engineer or otherwise attempt to discover the
methods, processes or logic used by Celeritek in the design, development and
manufacture of the Products or underlying any of Celeritek's other Confidential
Information. For avoidance of doubt, nothing contained herein shall preclude
Buyer from purchasing products from another third party which are based upon the
materials in the Deposit under Section 3.1 in accordance with Buyer's license
under Section 3.2, or the methods, procedures or logic of Buyer, or of a party
other than Celeritek.
5. INTELLECTUAL PROPERTY OWNERSHIP
Except for the limited license grant under Section 3.2 above, each Party
hereto retains all of its rights, title and interest in and to any and all of
their Intellectual Property Rights.
6. TERM AND TERMINATION
6.1 TERM. This Agreement will enter into effect upon the Effective Date
and continue in full force and effect for a period of (3) years and, unless
earlier terminated in accordance with its terms and conditions, shall expire at
the end of such three (3) year term (the "TERM").
6.2 TERMINATION FOR CAUSE. Either Party may terminate this Agreement
immediately upon written notice to the other Party for material breach of any
obligation under this Agreement by the other Party, provided that such other
Party has not cured such breach within ninety (90) days after receipt of written
notice of breach from the non-breaching Party stating such Party's intent to
terminate.
6.3 TERMINATION FOR CHANGE OF CONTROL. In the event Celeritek undergoes
a Change of Control after the Effective Date, such successor in interest shall
be entitled to terminate this Agreement upon no less than six (6) months prior
written notice thereof to Buyer.
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6.4 EFFECTS OF TERMINATION. Subject to Section 6.6, upon termination of
this Agreement, each Party will promptly return all tangible embodiments of the
other Party's Confidential Information in such Party's possession or under such
Party's control to the other Party, or destroy such Confidential Information and
certify such destruction in writing to the other Party.
6.5 OUTSTANDING ORDERS. If a Party hereto terminates this Agreement for
the other Party's material breach, then the non-breaching Party shall be
entitled to exercise one of the following options: (i) demand or continue
fulfillment of accepted Purchase Orders that are outstanding at the time of
termination; or (ii) immediately cancel all accepted Purchase Orders outstanding
at the time of termination subject to Buyer's payment of Celeritek's costs as
detailed under Article 11 of EXHIBIT C.
6.6 SURVIVAL. The provisions of the following Articles and Sections
shall survive the termination or expiration of this Agreement: Articles 1
(Definitions), 2 (Product Supply) (subject, in each case to Section 6.5), 3
(Escrow & License) (in the event of termination of this Agreement by Buyer
only), 4 (Confidentiality) (for a period of five (5) years), 5 (Intellectual
Property Ownership), 7 (Limited Warranties), and 8 (Miscellaneous); and Sections
6.5 (Outstanding Orders), and 6.6 (Survival).
6.7 LIMITATION OF LIABILITY UPON TERMINATION. In the event of
termination by either Party in accordance with any of the provisions of this
Agreement, neither party shall be liable to the other, because of such
termination, for compensation, reimbursement or damages on account of the loss
of prospective profits or anticipated sales or on account of expenditures,
inventory, investments, leases or commitments in connection with the business or
goodwill of Buyer or Celeritek. Termination shall not, however, relieve either
Party of obligations incurred prior to the termination, including but not
limited to amounts under Section 6.5(ii) above.
6.8 TERMINATION OF ASSET PURCHASE AGREEMENT. Notwithstanding any other
provision of this Agreement, or the execution of this Agreement by the Parties,
if the Asset Purchase Agreement is terminated pursuant to its terms prior to the
Closing having occurred, this Agreement shall automatically and immediately
become void, null and of no effect without further action on the part of either
Party.
7. LIMITED WARRANTIES.
7.1 LIMITED WARRANTY. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH UNDER
ARTICLE 8 OF EXHIBIT C WITH RESPECT TO PRODUCTS DELIVERED HEREUNDER, ALL
PROTOTYPE PRODUCTS, INFORMATION OR MATERIALS PROVIDED AND ALL RIGHTS GRANTED
UNDER THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ARTICLE 3 ABOVE) ARE DONE
SOLELY ON AN `AS IS' BASIS, WITHOUT WARRANTY OF ANY KIND, AND CELERITEK HEREBY
EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF. CELERITEK HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES
OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT.
7.2 LIMITATION OF LIABILITY. EXCEPT FOR EITHER PARTY'S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 4, IN NO EVENT WILL EITHER PARTY BE
LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR
PUNITIVE, OR OTHER SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT,
GOODWILL OR DATA) WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT,
BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR
OTHERWISE. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE
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OUT OF THIRD-PARTY CLAIMS AGAINST EITHER PARTY. THE ESSENTIAL PURPOSE OF THIS
PROVISION IS TO LIMIT THE PARTIES' POTENTIAL LIABILITY ARISING OUT OF THIS
AGREEMENT AND NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT OR AGREE TO THE SALE
OR PURCHASE OF PRODUCTS ABSENT SUCH LIMITATIONS.
8. MISCELLANEOUS
8.1 FORCE MAJEURE. A Party shall neither be held liable or responsible
to the other Party, nor be deemed to have defaulted under or breached this
Agreement (including Exhibits) for failure or delay in fulfilling or performing
any obligation under this Agreement (other than an obligation for the payment of
money) to the extent, and for so long as, such failure or delay is caused by
acts of terrorism, fire, floods, embargoes, war, acts of war (whether war be
declared or not), insurrections, riots, civil commotion, strikes, lockouts or
other labor disturbances, or acts of God, provided that the affected Party uses
reasonable efforts to overcome such failure or delay.
8.2 SUBCONTRACTORS. Subject to Buyer's prior written consent, which
shall not be unreasonably withheld, Celeritek shall have the right to use third
party contractors to fulfill its obligations under this Agreement. For avoidance
of doubt, the foregoing shall not be deemed to include the engagement or
disengagement by Celeritek of any third party suppliers of components or
subcomponents included within any of the Products sold hereunder, provided that
the quality and availability of such components or subcomponents are in all
material respects substantially the same as the substituted components and
subcomponents.
8.3 INDEPENDENT CONTRACTORS. Each Party hereby acknowledges that the
Parties shall be independent contractors and that the relationship between the
Parties shall not constitute a partnership, joint venture or agency. Neither
Party shall have the authority to make any statements, representations or
commitments of any kind, or to take any action, which shall be binding on the
other Party, without the prior consent of the other Party to do so.
8.4 NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement
shall be construed so as to confer upon any other Party the right of a third
party beneficiary.
8.5 ENGLISH LANGUAGE. This Agreement is in the English language only,
which language shall be controlling in all respects, and all versions hereof in
any other language shall not be binding on the Parties hereto. All
communications and notices to be made or given pursuant to this Agreement shall
be in the English language.
8.6 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of California, without giving effect to
any conflicts of laws principles. The United Nations Convention on Contracts for
the International Sale of Goods does not apply to this Agreement.
8.7 ASSIGNMENT. Neither Party may assign or otherwise transfer this
Agreement or any rights or obligations under this Agreement, in whole or in
part, whether voluntarily or by operation of law without the prior written
consent of the other Parties, except either Party may assign this Agreement to
an Affiliate or a successor-in-interest to all or substantially all of the
business or assets of such Party (whether by merger, reorganization, asset sale,
or otherwise) pertaining to the subject matter hereof that assumes all of such
Party's obligations under this Agreement. The rights and obligations of each
Party shall inure to the benefit of and bind the permitted successors and
assigns of the Parties to the Agreement. Any assignment in contravention of the
foregoing shall be void and of no effect.
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8.8 COMPLIANCE WITH LAWS. Each Party will comply with all applicable
federal, state, and local laws, rules, and regulations in performance of its
obligations hereunder. Without limiting the foregoing, each Party will comply
with all applicable export control laws, rules, and regulations, including the
Export Administration Regulations promulgated by the U.S. Department of
Commerce.
8.9 NOTICES. All notices or reports permitted or required under this
Agreement will be in writing and will be delivered by personal delivery,
telegram, telex, telecopier, facsimile transmission, or by certified or
registered mail, return receipt requested, and shall be deemed given upon
personal delivery, five (5) days after deposit in the mail, or upon
acknowledgment of receipt of electronic transmission. Notices shall be sent to
the addresses set forth below. Either Party may amend its address upon written
notice to the other.
If to Buyer: If to Celeritek:
Teledyne Wireless, Inc. Celeritek, Inc.
0000 Xxxxx Xxxxx Xxxxxx 0000 Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Attention: Xxx X. Xxxxxx Attention: Tamer Husseni
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
8.10 WAIVERS. The waiver by a Party of any right hereunder, or of any
failure to perform or breach by the other Party hereunder, shall not be deemed a
waiver of any other right hereunder or of any other breach or failure by the
other Party hereunder whether of a similar nature or otherwise.
8.11 SEVERABILITY. If any provision of this Agreement is found by any
tribunal or court of competent jurisdiction to be unenforceable, then such
provision will be construed, to the extent feasible, so as to render the
provision enforceable, and if no feasible interpretation would save such
provision, it will be severed from the remainder of this Agreement. The
remainder of this Agreement will remain in full force and effect, unless the
severed provision is essential and material to the rights or benefits received
by either Party. In such event, the Parties will negotiate, in good faith, and
substitute a valid and enforceable provision or agreement that most nearly
implements the Parties' intent in entering into this Agreement.
8.12 CONSTRUCTION. The article and section headings used in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement. This Agreement, and any instrument referred to
herein or executed and delivered in connection herewith, shall not be construed
against either Party as the principal draftsperson hereof or thereof. Unless
otherwise expressly stated to the contrary herein, all remedies are cumulative,
and the exercise of any express remedy by either Party herein does not by itself
waive such Party's right to exercise its other rights and remedies available at
law or in equity.
8.13 ENTIRE AGREEMENT. This Agreement (including all Exhibits hereto)
contains the entire understanding of the Parties with respect to the subject
matter hereof. All express or implied representations, agreements and
understandings, either oral or written, heretofore made are expressly superseded
by this Agreement. This Agreement may be amended, or any term hereof modified,
only by a written instrument duly executed by both Parties. In the event of any
conflict between any provision of the main terms and conditions of this
Agreement and any Exhibit, the provision of this Agreement shall control.
8.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.
CELERITEK/TELEDYNE CONFIDENTIAL
IN WITNESS WHEREOF, the Parties hereto have caused their duly authorized
representatives to execute this Agreement as of the Effective Date.
"BUYER" "CELERITEK"
TELEDYNE WIRELESS, INC. CELERITEK, INC.
/s/ Xxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxxx
___________________________________ ___________________________________
Signature Signature
Xxxxx X. Xxxxxxx Xxxxx Xxxxxxxx
___________________________________ ___________________________________
Printed Name Printed Name
Vice President
and General Manager Chairman & CEO
___________________________________ ___________________________________
Title Title
10.
