EXHIBIT 10.48
CONFIDENTIAL TREATMENT
PURCHASE AND SUPPLY AGREEMENT
This Purchase and Supply Agreement ("Agreement") dated as of December 29,
2000 is entered into by and between Spectrian Corporation ("Spectrian"), a
Delaware corporation, and Zoltar Acquisition, Inc. ("Newco"), a North Carolina
corporation and a wholly-owned subsidiary of Cree, Inc., a North Carolina
corporation ("Parent").
RECITALS
WHEREAS, Spectrian, through its UltraRF division, is a developer and
supplier of ultra linear, high-performance radio amplifiers for the wireless
infrastructure market;
WHEREAS, Newco is a newly formed entity that intends to be a developer and
supplier of high-performance radio frequency power semiconductors and
integrated modules for the wireless infrastructure market;
WHEREAS, Spectrian, Parent and Newco have entered into an Asset Purchase
Agreement, dated November 20, 2000 (the "Asset Purchase Agreement"), pursuant
to which, among other things, Newco shall purchase Spectrian's UltraRF business
division; and
WHEREAS, following the purchase of Spectrian's UltraRF business division,
Newco wishes to supply Spectrian with high-performance radio frequency power
semiconductors and integrated modules and related components and systems
(collectively, "Components") and Spectrian wishes to acquire such Components
from Newco.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and intending to be legally bound, Spectrian and Newco agree:
ARTICLE I.
TERM, QUANTITY, QUALITY, PRICING AND PAYMENT
--------------------------------------------
Section 1.1 Term. The term of this Agreement shall commence on January
----
1, 2001 (the "Effective Date") and shall end at the conclusion of the twenty
four (24) month period following the Effective Date (the "Term.").
Section 1.2 Minimum Commitment. In each calendar quarter during the
------------------
Term, Spectrian agrees to purchase and accept delivery from Newco of, and Newco
agrees to sell and ship to Spectrian, Components having an aggregate purchase
price not less than the respective minimum commitment amounts set forth below:
Calendar Quarter Ending Minimum Commitment
----------------------- ------------------
March 31, 2001 [***]
June 30, 2001 [***]
September 30, 2001 [***]
December 31, 2001 [***]
March 31, 2002 [***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
June 30, 2002 [***]
September 30, 2002 [***]
December 31, 2002 [***]
(for each calendar quarter, and as it may be reduced or modified by the terms
hereof, the "Minimum Commitment"). The Minimum Commitment shall be satisfied
by Spectrian Purchases; provided, however, that, to the extent that Spectrian
Purchases in a calendar quarter exceed the Minimum Commitment for that calendar
quarter, such excess shall not carry over to be applied against the Minimum
Commitment for any subsequent calendar quarter. As used herein, "Spectrian
Purchases" means the aggregate amount the purchase price (without giving effect
to the Shortfall Surcharge (defined below)) of purchases of Components from
Newco and other of the Parent's products that are shipped by Newco to Spectrian
during a given calendar quarter or that have Original Delivery Dates (as
defined in Section 3.1) or scheduled delivery dates otherwise mutually agreed
upon in writing, in each case within such calendar quarter if not shipped
during that calendar quarter. For purposes of this Section 1.2, Spectrian
Purchases include purchase of Components from Newco by any subsidiary of
Spectrian in which Spectrian owns over 50% or by an entity which controls
Spectrian (owns 50% or greater ownership in Spectrian); provided, however, that
purchases by any of the entities specified in Schedule 1.2 hereto shall not be
included as Spectrian Purchases.
If Spectrian fails to satisfy the Minimum Commitment for any calendar
quarter, Spectrian shall pay to Newco in cash, within thirty (30) days
following such calendar quarter, an amount equal to the Shortfall Surcharge. As
used herein, "Shortfall Surcharge" for any calendar quarter means the
difference between the (a) Adjusted Minimum Commitment (defined as Minimum
Commitment less (i) Performance and Component Availability Adjustments and (ii)
Guaranteed Supply Adjustments) for such calendar quarter and (b) Spectrian
Purchases for such calendar quarter. Spectrian agrees to promptly notify Newco
in the event Spectrian expects to not achieve its Minimum Commitment in any
period. In the event that a Shortfall Surcharge shall be payable with respect
to any calendar quarter, the amount of the Shortfall Surcharge shall be deemed
to have been allocated pro rata among all Components shipped during such
calendar quarter as an increase in the purchase price thereof.
Section 1.3 Guaranteed Capacity. Newco agrees that it will allocate
-------------------
sufficient production capacity to Spectrian to meet [***] of the Minimum
Commitment, subject to the other provisions of this Agreement, including the
provisions of Section 2.4 regarding lead times.
Section 1.4 Performance and Component Availability. (a) Spectrian will
--------------------------------------
provide Newco with quarterly product roadmaps and specifications for future
Spectrian products. Spectrian will consider in good faith utilizing
Components from Newco in products under development by Spectrian provided that
such Components are Competitive. Spectrian and Newco shall in good faith
discuss, and mutually agree in writing from time to time, upon the requirements
for Components to be deemed "Competitive". The requirements will be based upon
whether such products (i) have key performance parameter limits that are within
the key performance parameter limits for a third party component that Spectrian
might otherwise utilize, (ii) meet the specification requirements of
Spectrian's product design, (iii) have been fully released to manufacturing by
Newco, (iv) are to be projected to be available in quantities necessary to
support the projected Spectrian production requirements and (v) have a
competitive
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
2
CONFIDENTIAL TREATMENT
price. The parties agree that the Components listed on Schedule 1.4 hereto are
deemed to be Competitive in the Spectrian products for which they currently are
utilized as of the date hereof. Newco shall be afforded a period of [***]
months from the date that production parts are commercially available (or, if
later, from the date the parties have mutually agreed upon the requirements for
a Component to be Competitive) in which to develop and release such Competitive
products to manufacturing.
(b) In the event that Spectrian determines to "lock in" a Component in its
design of Spectrian products, it shall give written notice to Newco of its
determination with respect to such Component (a "Locked In Component").
Thereafter, subject to the other provisions of this Agreement, if Locked In
Components are not available from Newco that meet the Competitive requirements,
and if other Components from the Newco portfolio are not available which would
otherwise meet Spectrian's Competitive requirements for the Minimum Commitment,
then the dollar volume of these Components which are purchased by Spectrian
from other vendors in a calendar quarter shall be deemed to be a "Performance
and Product Availability Adjustment" for purposes of the Minimum Commitment for
such quarter.
Section 1.5 Guaranteed Supply. Subject to the other provisions of this
-----------------
Agreement, Newco shall assure supply to Spectrian of all Components that have
been designed into Spectrian's products. In the event that Newco decides to
discontinue manufacturing and delivery of certain Components ("End-of-Life"),
Newco will accept all purchase orders provided by Spectrian ("Last Time Buy")
of the specific part number(s) subject to Newco's End of Life notification for
a period of twelve (12) months from the date of notification and Newco agrees
that delivery will not exceed twenty four (24) months from the date of such
notification. Spectrian's Last Time Buy must be placed before the expiration
of the twelve (12) month period following the End of Life notification. All
Last Time Buy purchase orders shall be placed on a non-cancelable and non-
refundable basis and marked as such on Spectrian's purchase orders. The price
for finished Components purchased under a Last Time Buy will be subject to the
prices or pricing criteria, as outlined in Section 1.6.
Spectrian will make reasonable efforts to assess its Last Time Buy
requirements for each product being subject to an End of Life notification and
place an order for such requirement. In addition, Spectrian may request that a
portion of the Life Time Buy be in the form of Qualified Die Bank. "Qualified
Die Bank" is defined as die in wafer form which has been subjected to the wafer
fabrication process and has had a sample of ten (10) die across the wafer
selected and then packaged and tested for those specific ten (10) die to
confirm that the wafer will yield good RF performance devices at an economic
yield. The approval by Newco of such a Spectrian request for a portion of its
Last Time Buy in the form of Qualified Die Bank will not be unreasonably
withheld. Spectrian shall purchase the Qualified Die Bank under provisions of
the Last Time Buy stated above, and will bear the risk for die yield. The price
for Qualified Die Bank will be no greater than the lower of (i) market price
and (ii) [***] of Newco's standard manufacturing cost (which shall include a
reasonable manufacturing overhead allocation).
In the event that Newco is unable to satisfy Spectrian's Last Time Buy or
Qualified Die Bank request for bipolar technology Components which have been
designed into Spectrian products prior to the Effective Date, Newco agrees to
transfer a royalty free license of the manufacturing process (including
packaging technology, unless Newco agrees to provide such
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
3
CONFIDENTIAL TREATMENT
services to Spectrian to complete the Qualified Die Bank at a reasonable cost)
to such End of Life bipolar Components to Spectrian (or a designee approved by
Newco, such approval not to be unreasonably withheld) to be manufactured
exclusively for Spectrian and be for Spectrian's own use, in order to ensure
that the supply of such devices to Spectrian remains uninterrupted. The
technical information to support such transfer will be provided at cost so as
to ensure that there is no interruption in supply and in no event later than 24
months after the End of Life notification.
In the event that Spectrian purchases Components subsequent to an End of Life
notification from another vendor by virtue of the fact that Newco could not
deliver Components to Spectrian under Spectrian's Last Time Buy purchase
orders, then the purchases of such Components from another vendor other than
Newco shall be deemed to be a "Guaranteed Supply Adjustment" for purposes of
the Minimum Commitment.
Notwithstanding the foregoing, Newco agrees to not End of Life any
Components during the 12 month period following the Effective Date except as
disclosed on Schedule 1.5.
Section 1.6 Qualified Die Bank Purchases. From time to time, Spectrian
----------------------------
may request that Newco provide it with Qualified Die Bank without regard to the
Life Time Buy provisions above. The approval by Newco of such a Spectrian
request will not be unreasonably withheld, but Spectrian shall bear the risk
for die yield. The price for such Qualified Die Bank shall be [***] of Newco's
standard manufacturing cost (which shall include a reasonable manufacturing
overhead allocation). Any such purchase of Qualified Die Bank shall be
credited against the Minimum Commitment for the quarter in which such purchase
is made. Such Qualified Die Bank may be held by Spectrian and thereafter
submitted to Newco for Component finishing, in which case the price of the
Component shall be the difference between the Component price determined
pursuant to Section 1.7 and the price previously paid for such Qualified Die
Bank. The differential in price shall be credited against the Minimum
Commitment for the quarter in which such Component is shipped. Any Qualified
Die Bank purchased by Spectrian hereunder may not be sold or transferred to any
party other than Newco.
Section 1.7 Prices. (a) The prices for products purchased by
------
Spectrian will be as set forth on Appendix A hereto, with the pricing
determined as of the date of the Spectrian purchase order based upon the date
of shipment from Newco. For shipments of bipolar products after the quarter
ending June 30, 2001, the price for each bipolar product shall be the price set
forth in the column for such quarter unless there shall have occurred a
significant increase in packaging costs, in which case the parties shall
negotiate in good faith the price for bipolar products having such increased
packaging costs. For shipments of LDMOS products after the quarter ending June
30, 2001, the parties shall negotiate in good faith, not less than 90 days
prior to the start of a calendar quarter, the price for LDMOS products to be
shipped during such calendar quarter. The parties agree to negotiate in good
faith (i) changes to the LDMOS prices set forth in Appendix A from time to time
in the future and (ii) prices for new Components, in each case based to ensure
best available commercial price at a similar volume purchase discount and a
cost per watt benchmark for substantially equivalent products of any leading
competitor where specific comparable price is not available. In the event that
Newco elects not to meet the best available commercial price for a particular
product having equivalent specifications to the Newco Component, where such
price is offered in writing to Spectrian for quantities not less than those
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
4
CONFIDENTIAL TREATMENT
Spectrian would otherwise purchase from Newco under this Agreement, and Newco
has had at least thirty (30) days after its receipt of a copy of the third
party offer in which to meet such price, Spectrian may purchase such product
from a third party vendor at such lower price, in which case such purchase will
be credited against the Minimum Commitment
Notwithstanding the foregoing, Newco shall provide Spectrian with its
"most favored customers" pricing with respect all of Spectrian's Component
purchases (without regard to volume or mix) for all purchase orders placed
during the (2) two consecutive 12 month periods following the Effective Date,
with the "most favored customer pricing" determined at the time Spectrian
submits its purchase order.
(b) The Component prices do not include sales, use, consumption or excise
taxes of any taxing authority. The amount of such taxes, if any, will be added
to the Component prices in effect at the time of shipment thereof and shall be
reflected in the invoices submitted to Spectrian by Newco pursuant to this
Agreement. Spectrian shall pay the amount of such taxes to Newco in accordance
with the payment provisions of this Agreement.
Section 1.8 Payment. Spectrian shall pay Newco the applicable price for
-------
the Components that Newco ships to Spectrian hereunder within thirty (30) days
from the date of the invoice therefor. All payments due to Newco under this
Agreement shall be made in U.S. Dollars by Spectrian by wire transfer to an
account to be designated in writing by Newco from time to time. All amounts
not paid when due shall bear interest at the rate of one percent (1%) per month
(or such other percentage, if lower, as shall not exceed the maximum rate
permitted by law) commencing forty five (45) days from the date of the relevant
invoice. Spectrian shall be responsible for reasonable attorneys' feeds and
any other reasonable expenses incurred by Newco in connection with the
collection of any amounts due and payable hereunder.
ARTICLE II.
FORECASTS, LEAD TIMES AND ORDERS
--------------------------------
Section 2.1 Rolling Forecasts. (a) Not less than ten (10) days prior
-----------------
to the end of each calendar month during the Term, Spectrian shall submit to
Newco a forecast of its purchase of Standard Components (broken down by
individual Standard Components) for each of the following six months (a
"Standard Component Forecast") and a forecast of its purchase of Custom
Components (broken down by individual Custom Component) for each of the
following six months (a "Custom Component Forecast" and, together with a
Standard Component Forecast, the "Component Forecasts"). As used herein,
"Standard Components" are Components that Newco makes generally available for
sale to the public. "Custom Components" are all Components that are not
Standard Components.
(b) Attached hereto as Schedule 2.1(a)(i) is Spectrian's Standard
Component Forecast for the period beginning on January 1, 2001 and ending on
June 30, 2001. Attached
5
hereto as Schedule 2.1(a)(ii) is Spectrian's Custom Component Forecast for the
period beginning on January 1, 2001 and ending on June 30, 2001 (the "Initial
Custom Component Forecast").1
Section 2.2 Firm Orders. The first two months of each Standard
-----------
Component Forecast and the first three months of each Custom Component Forecast
shall be deemed to be a "Firm Order", against which Newco shall ship Components
to Spectrian. Firm Orders shall include a delivery date determined in
accordance with Section 2.4 hereof. The Firm Orders shall be binding on both
parties, and Spectrian shall be obligated to purchase and Newco shall be
obligated to supply Components in the quantities indicated therein. Firm
Orders may not be cancelled or modified by either party without the written
consent of the other party.
Section 2.3 Cancelled Custom Orders. Spectrian may cancel any Custom
-----------------------
Component order during the period ending on the date (the "Trigger Date") that
is the later to occur of (i) 90 days prior to the anticipated delivery date
determined in accordance with Section 2.4 hereof and (ii) a date mutually
agreed to by Spectrian and Newco. In such event, Spectrian shall be obligated
to reimburse Newco for any packaging costs incurred by Newco with respect to
such cancelled order (plus any restocking or similar penalty of any third party
supplier). The amount of such reimbursement shall not be credited against the
Minimum Commitment.
Section 2.4 Lead Times. Not later than ten (10) days prior to the end
----------
of each calendar quarter, Newco will publish and provide to Spectrian the lead
times for delivery of Standard Components. For Standard Components, the lead
time shall be [***] from the date that Spectrian shall submit a purchase order
for such Standard Components to Newco; provided, however, that Newco in good
faith may modify the lead time for a particular Component if (i) the amount of
such Component ordered is more than 110% of the amount of such Component
ordered by Spectrian within the preceding three month period and (ii) such
Components had been fully released to manufacturing prior to the commencement
of such three month period; and provided, further, that for Components that had
not been so released, a reasonable lead time shall be established (and notice
thereof provided to Spectrian) at the time such Components are released to
manufacturing. For Custom Components, the lead time shall be [***] or such
other time as may be mutually agreed in writing by the parties. Newco from time
to time in good faith may modify the lead times for Components by giving
written notice to Spectrian base on changes in Newco's vendors' lead times and
Newco's capacity (subject to the minimum capacity provisions above) , except
that the lead time in effect as of the date of the purchase order may not be
modified without the consent of the parties. Newco shall not be obligated to
accept purchase orders for Components requesting deliveries outside the lead
time applicable under this Section 2.4.
Section 2.5 Existing Purchase Orders. Newco shall continue to honor the
------------------------
terms and conditions of all third party purchase orders as provided in the
Asset Purchase Agreement.
------------------------------
1 These two attachments will be provided by Spectrian not later than
December 10, and will ensure that Spectrian satisfies the Minimum Commitment
for the initial calendar quarter.
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
6
CONFIDENTIAL TREATMENT
Section 2.6 Future Purchase Orders. The terms and conditions of
----------------------
Spectrian's standard purchase order and Newco's standard purchase order
acceptance form attached hereto as Schedule 2.6 shall be exchanged by the
parties, in Spectrian's case to confirm the Components and delivery dates
ordered pursuant to the Component Forecasts, and in Newco's case to confirm its
acceptance of orders and agreement to the delivery dates, but shall otherwise
be considered exchanged as an administrative convenience only, without adding
to or modifying any of the provisions of this Agreement.
ARTICLE III.
DELIVERY AND SHIPPING
---------------------
Section 3.1 Delivery. Newco shall deliver Components to Spectrian on
--------
the dates requested by Spectrian and agreed to by Newco in the purchase orders
(the "Original Delivery Dates"); provided, however, that Newco may fill Firm
Orders up to fourteen (14) days before or after the Original Delivery Dates and
still be in compliance with the delivery terms hereof; provided, further,
however, that for purposes of the Minimum Commitment the purchase date shall be
deemed to be the Original Delivery Dates.
Section 3.2 Shipping. All sales of Components under this Agreement are
--------
made F.O.B. shipping point. Spectrian shall be responsible for all
transportation costs and title and risk of loss shall pass to Spectrian upon
shipment by Newco.
ARTICLE IV.
INSPECTION
----------
Section 4.1 Prompt Notice. Promptly after receiving each shipment of
-------------
Components, Spectrian shall examine such Components for any damage, defect,
non-conformance or shortage. Spectrian shall notify Newco within fifteen (15)
days of receipt of Component if the Component does not comply with the
Component specification (determined by reference to UltraRF's published
specifications as in effect on the date hereof or as otherwise may be mutually
agreed to in writing) and Newco shall, upon Spectrian's request and as soon as
reasonably possible, replace the non-conforming Component with a Component
meeting the Component specification.
ARTICLE V.
PRODUCT WARRANTY
----------------
Section 5.1 Warranty Period. Newco agrees to assume the warranty
---------------
Obligation for UltraRF products which were shipped to external customers during
the [***] period prior to the Effective Date. Spectrian represents to Newco
that the aggregate amount of shipments to third parties prior to the date
hereof does not exceed [***]2
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
7
CONFIDENTIAL TREATMENT
[***] and that Spectrian is unaware of any defects therein and has not received
notice of any warranty or similar claims with respect thereto which have not
previously been remedied in accordance with the warranty obligations assumed by
Newco hereunder or under the Asset Purchase Agreement. With respect to products
shipped after the Effective Date, Newco agrees to a Component warranty period
of [***] from the date of Component shipment. The warranty provided by Newco
shall be as set forth on Schedule 5.1 hereto.
Section 5.2 Scope of Warranty. Newco agrees that the Components shipped
-----------------
by it pursuant to this Agreement shall be entitled to the warranty terms set
forth on Schedule 5.2 hereto.
ARTICLE VI.
LIMITATION OF LIABILITY
-----------------------
Section 6.1 Limitation of Liability. IN NO EVENT SHALL ANY PARTY BE
-----------------------
LIABLE TO ANY OTHER PARTY FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, IRRESPECTIVE OF THE WAY IN WHICH
SUCH DAMAGES MAY ARISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
ARTICLE VII.
CONFIDENTIALITY
---------------
Section 7.1 Confidentiality. Any information disclosed by one party or
---------------
its Affiliates to the other party or its Affiliates in connection with the
performance of this Agreement and designated in writing by the disclosing party
at the time of the disclosure as confidential (collectively, the "Confidential
Information") shall be received and maintained in confidence by the receiving
party using the same standard of care that the receiving party uses to protect
its own like confidential information, but not less than reasonable care. The
Confidential Information may be used by the receiving party only to perform its
obligations under this Agreement, and shall not be disclosed to a third party
without the prior written consent of the disclosing party. The disclosure of
Confidential Information shall be restricted only to those employees of the
receiving party requiring access to the Confidential Information to perform its
obligations under this Agreement. As used herein, "Affiliate" shall mean, with
respect to a party, any other person or entity which, directly or indirectly,
controls, is controlled by or is under common control with such party, where
"control" and "controlled" mean ownership of more than fifty percent (50%) of
the outstanding equity interests having voting rights with respect to the
election of the board or directors or comparable governing authority. Each
party shall be responsible for any breach by its Affiliates of the obligations
of this Article VII.
--------------------------------
2 As of the date of the Asset Purchase Agreement, the amount is not
greater than [***]. The amount to be inserted will be the actual amount of
such sales as of the Effective Date.
8
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
The provisions of this Section 7.1 shall not apply to Confidential
Information which is: (a) already known to the receiving party without an
obligation of confidentiality (it being understood that information of either
party in the possession of the other party prior to the Effective Date shall be
covered by this exception); (b) publicly known or becomes publicly known
through no unauthorized act of the receiving party; (c) rightfully received by
the receiving party without obligation of confidentiality from a third party;
(d) disclosed to a third party by the disclosing party without similar
restrictions; (e) approved for disclosure by the disclosing party; or (f)
required to be disclosed pursuant to a requirement of a governmental agency or
by law as long as the receiving party provides to the disclosing party notice
of the requirement prior to any disclosure.
Section 7.2 Return of Confidential Information. Upon the expiration or
----------------------------------
termination of this agreement for any reason, each party shall upon request
return to the other party or certify in writing the destruction of all
Confidential Information received in tangible form by it or its Affiliates from
the other party or its Affiliates and cease any further use of such
Confidential Information.
ARTICLE VIII.
DISPUTE RESOLUTION
------------------
Section 8.1 Dispute Resolution. All controversies, disputes or claims
------------------
arising among the parties in connection with, or with respect to, any provision
of this Agreement which has not been resolved within thirty (30) days after
either Parent, on the one hand, or Spectrian, on the other hand, have notified
the other in writing of such controversy, dispute or claim, shall be submitted
for arbitration in accordance with the rules of the American Arbitration
Association or any successor thereof. Arbitration shall take place at an
appointed time and place in Sunnyvale, California.
Section 8.2 Selection of Arbitrators. Newco and Spectrian each shall
------------------------
select one independent arbitrator (who shall not be counsel for such party),
and the two so designated shall select a third independent arbitrator. If
either party shall fail to designate an arbitrator within seven calendar days
after arbitration is requested, or if the two arbitrators shall fail to select
a third arbitrator within 14 calendar days after arbitration is requested, then
such arbitrator shall be selected by the American Arbitration Association or
any successor thereto upon application of either party. Judgment upon any
award of the majority of arbitrators shall be binding and shall be entered in a
court of competent jurisdiction. Subject to the provisions of this Agreement,
the award of the arbitrators may grant any relief that a court of general
jurisdiction has authority to grant, including, without limitation, an award of
damages and/or injunctive relief, and shall assess, in addition, the cost of
the arbitration, including the reasonable fees of the arbitrator, reasonable
attorneys' fees and costs of all prevailing parties, against all non-prevailing
parties.
Section 8.3 Temporary Injunctive Relief. Nothing herein contained shall
---------------------------
bar the right of any of the parties to seek and obtain temporary injunctive
relief from a court of competent jurisdiction in accordance with applicable law
against threatened conduct that will cause loss or damage, pending completion
of the arbitration, and the prevailing party therein shall be entitled to an
award of its reasonable attorneys' fees and costs.
9
CONFIDENTIAL TREATMENT
Section 8.4 Arbitration Rules. All disputes and claims shall be
-----------------
determined by arbitration in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (the "Rules") in effect on the date
hereof, except that such Rules shall be modified by this Agreement.
Section 8.5 Arbitration Proceedings. All arbitral proceedings arising under,
or in connection with, this Agreement shall be governed by the Federal Rules of
Civil Procedure. Notwithstanding the previous sentence, the arbitrators' award
shall be made no later than ninety (90) days after their appointment. Subject
to the parties' right to be treated fairly, the arbitrators may shorten the
periods of time otherwise applicable to the arbitral proceedings under the
Rules or the Federal Rules of Civil Procedure to permit the award to be made
within the time limitation set forth in the previous sentence.
ARTICLE IX.
MISCELLANEOUS
-------------
Section 9.1 No Agency. The relationship between Newco and Spectrian is
--------
that of independent contractors and nothing herein shall be deemed to
constitute the relationship of partners, joint venturers, nor of principal and
agent, between Newco and Spectrian. Neither party shall have any express or
implied right or authority to assume or create any obligations on behalf of or
in the name of the other or to bind the other to any contract, agreement or
undertaking with any third party.
Section 9.2 Notices. All notices required or permitted to be given
-------
under this Agreement shall be in writing and shall be sent by facsimile
transmission or mailed by registered or certified mail addressed to the party
to whom such notice is required or permitted to be given as set forth in the
Asset Purchase Agreement. Any party may, by written notice to the other
parties, as provided herein designate a new address to which notices to the
party giving the notice shall thereafter be mailed.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail, postage prepaid,
if mailed.
Section 9.3 Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, without the written consent of each party. The failure by
any party at any time to enforce any of the terms or conditions of this
Agreement shall not constitute or be construed as a waiver of the terms and
conditions. Each party expressly reserves the right to enforce the terms and
conditions of this Agreement at any time.
Section 9.4 Successors And Assigns. This Agreement shall be binding
----------------------
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns, provided that this Agreement and the rights and
obligations contained herein or in any exhibit or schedule hereto shall not be
assignable, in whole or in part, without the prior written consent of the
parties
10
CONFIDENTIAL TREATMENT
hereto and any attempt to effect any such assignment without such consent shall
be void, provided, further, that other party's consent shall not be necessary
for the assignment of a party's rights and obligations hereunder to a person or
entity which has acquired all or substantially all of such party's assets if
the purchaser assumes and agrees in writing for the benefit of the other party
to perform the selling party's obligations hereunder. In the event that more
than fifty percent (50%) of the outstanding capital stock of Parent or
Spectrian shall be acquired by a third party, Newco or Spectrian, as
applicable, shall be obligated to cause such third party to acknowledge and to
assume and agree in writing, for the benefit of the other party hereto, to
perform the obligations of Newco or Spectrian, as the case may be.
In the event that more than fifty percent (50%) of the equity interest of
Parent or Spectrian shall be acquired by a third party, such third party shall
be required to acknowledge the obligations of Newco or Spectrian, as the case
may be.
Section 9.5 No Third Party Beneficiaries. This Agreement is solely for
----------------------------
the benefit of the parties, and is not intended to confer upon any other person
any rights or remedies.
Section 9.6 Titles and Headings. The Article and Section headings in
-------------------
this Agreement are inserted for convenience of reference only, and are not
intended to constitute a part of or to affect the meaning or interpretation of
this Agreement.
Section 9.7 Attachments. The attachments to this Agreement shall be
-----------
construed with and as an integral part of this Agreement to the same extent as
if they had been set forth in full in this Agreement.
Section 9.8 Severability. The remedies provided herein are cumulative
------------
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction.
It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
Section 9.9 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of North Carolina, as
applied to contracts made and performed within the State of North Carolina
without regard to principles of conflicts of law.
Section 9.10 Counterparts. This Agreement may be executed in any number
------------
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement.
Section 9.11 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement supercedes all prior agreements and understandings, oral and
written, with respect to its subject matter.
11
CONFIDENTIAL TREATMENT
Section 9.12 Force Majeure. No party shall be liable to the other party
-------------
for any failure to perform any obligation under this Agreement (other than the
payment of money owed hereunder) where such failure is due to causes beyond the
reasonable control of the party. Such causes include, but are not limited to
acts of war, government export controls, other governmental acts (including
without limitation changes in applicable law), industrial dispute, lock-out,
accident, fire, explosion, transport delays, acts of a third party, or loss or
damage to any equipment due to acts of God. Each party shall use its best
efforts to comply with its respective obligations under this Agreement despite
the intervention or occurrence of any such cause, and to resume compliance with
those obligations as soon as any such cause ceases to affect the performance of
its obligations under this Agreement.
Section 9.13 Termination. Either party may terminate this Agreement in
-----------
the event that (a) the other party materially breaches this Agreement; (b) the
other party becomes insolvent or enters bankruptcy, receivership, liquidation,
composition of creditors, dissolution or any similar proceeding; or (c) a
significant portion of the assets of the other party necessary for the
performance of this Agreement become subject to attachment, embargo or
expropriation.
A party intending to terminate this Agreement pursuant to this Article IX
(other than clause (b) of the preceding paragraph) shall first notify the other
party of the grounds for the intended termination. If the other party fails to
remedy such grounds for termination within thirty (30) days of such notice (or
any longer period of time as mutually agreed by the parties), then the
terminating party may terminate this Agreement effective upon notice to the
other party without the need for any judicial action.
The provisions of this Article IX are without prejudice to any other
rights or remedies either party may have by reason of the default of the other
party.
In the event a competitor of Spectrian in the wireless infrastructure
market acquires a significant interest in Newco (directly or indirectly), Newco
will provide Spectrian with reasonable assurances that Newco will utilize its
best efforts to preserve the confidentiality of all information related to
products produced for Spectrian and Spectrian product programs.
The provisions of Articles VI and VII shall survive termination of the
Agreement. The termination of this Agreement shall not affect any rights
either party has accrued at the time the termination becomes effective.
Section 9.14 Attorneys' Fees. In any action or proceeding brought to
---------------
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the
court, shall be entitled to recover its reasonable attorneys' fees in addition
to any other available remedy.
12
CONFIDENTIAL TREATMENT
IN WITNESS WHEREOF, Spectrian and Newco have caused this Agreement to be
executed in multiple counterparts by their duly authorized representatives.
ZOLTAR ACQUISITION, INC. SPECTRIAN CORPORATION
By: By:
----------------------------- --------------------------
Name: Name:
----------------------------- --------------------------
Its: Its
----------------------------- --------------------------
Date: December 29, 2000 Date: December 29, 2000
13
CONFIDENTIAL TREATMENT
Schedule 1.2
Purchases Not Considered Spectrian Purchases
For purposes of Section 1.2, Spectrian Purchases include purchase of Components
from Newco by any subsidiary of Spectrian in which Spectrian owns over 50% or
by an entity which controls Spectrian (owns 50% or greater ownership in
Spectrian); provided, however, that purchases by any of the entities specified
below shall not be included as Spectrian Purchases:
[***]
[***]
[***]
[***]
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Schedule 1.4
Performance and Component Availability
The following products are deemed to be Competitive:
PART NUMBER PRODUCT NAME FREQUENCY
----------- ------------ ---------
[***]
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Schedule 1.5
Guaranteed Supply
Newco may elect to End of Life the following products during the 12 month
period following the Effective Date:
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Schedule 2.1(b)(i)
Spectrian's Standard Component Forecast
For the Period Beginning on January 1, 2001 and Ending on June 30, 2001
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Schedule 2.1(b)(ii)
Spectrian's Custom Component Forecast
For the Period Beginning on January 1, 2001 and Ending on June 30, 2001
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Schedule 2.6
Future Purchase Orders
Terms and conditions of Spectrian's standard purchase order and Newco's
standard purchase order acceptance form:
See Insert--Spectrian's Standard Purchase Order Forms.
See Insert--Newco's Standard Purchase Order Acceptance Form.
SHIP TO:
[SPECTRIAN SPECTRIAN PURCHASE ORDER
LOGO PURCHASE ORDER REVISION PAGE
DEPICTED
HERE] 000 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Phone 000-000-0000 THIS PUHCHASE ORDER NUMSER MUST APPEAR ON ALL
FAX 000-000-0000 INVOICES PACKING LISTS! CARTONS AND
Resale No~ SRGH 26-753509 CORRESPONDENCE RELATED TO THIS ORDER
DATE OF ORDER BUYER
DATE OF REVISION BUYER
VENDOR XXXX TO:
CUSIOMER ACCT NO. VENDOR NO. PAYMENT TERMS FREIGHT TERMS FOB. SHIP VIA
CONFIRM TO /TELEPHONE/ P0 TYPE
LINE PART NUMBER/DESCRIPTION REV DELIVERY DATE QUANTITY UNIT UNIT PRICE EXTENSION TAX
---- ----------------------- --- ------------- -------- ---- ---------- --------- ---
TOTAL
-----------------
AUTHORIZED SIGNATURE
SUPPLIER
TERMS AND CONDITIONS OF PURCHASE ORDER
1. All portions of this purchase order which do not have a definite scheduled
delivery date stated may be cancelled at any time by Spectrian without
additional charge or recourse to Spectrian.
2. Our part number must appear on all packages, packing list and invoice.
3. Ship per instructions, unless otherwise specifically instructed in writing.
4. Do not declare extra value, unless otherwise specifically instructed in
writing.
5. Packing list must accompany each shipment.
6. Last shipment on order must be marked "Final Shipment" on packing list and
on invoice.
7. This order will become a binding contract upon the receipt of the
acceptance signed by the seller. This acceptance must be made within 10
days of the date of the purchase order. Said contract shall constitute the
entire agreement of the parties hereto and shall supersede all prior
offers, negotiations, and agreements on the articles covered by this order.
No changes shall be made in terms conditions, prices or deliveries without
Spectrian's written consent and Spectrian shall not be bound by any terms
and conditions on sellers acknowledgement forms and/or on invoices which
impose terms or conditions at variance with those hereof. NO CONFIRMATION
OR ACCEPTANCE OF THIS ORDER BY SELLER WHICH STATES TERMS ADDITIONAL TO OR
DIFFERENT FROM THOSE SET OUT HEREIN SHALL OPERATE AS AN ACCEPTANCE OF THIS
ORDER UNLESS SPECTRIAN SPECIFICALLY ASSENTS IN WRITING TO SUCH ADDITIONAL
OR DIFFERENT TERMS.
8. No charge will be allowed for packing, crating, drayage or storage unless
stated herein.
9. Spectrian reserves the right to cancel any portion of this order if not
received on dates specified.
10. Payment for material on this order shall not constitute any acceptance
thereof but all material shall be received subject to Spectrian inspection
and rejection. Defective material or material not in accordance with
Spectrian's specification will be held for seller's instructions and at his
risk and expense. All goods rejected shall at Spectrian's option be
promptly replaced or be deleted from this purchase order with price being
reduced accordingly.
11. By acceptance of this purchase order and shipment of product called for
harem, seller expressly warrants that: (A) all materials and work will
conform to specifications, drawings, or descriptions furnished and or
adopted by Spectrian and will be of good workmanship material, and free of
defects. (B) test and inspection data and other objective evidence required
to prove compliance to buyer's specifications referenced herein will be
retained for a minimum of three years after shipment. (C) such objective
evidence including test and inspection data will be made available to buyer
or buyer's authorized representative upon request at any time during that
period.
12. Unless otherwise herein agreed, special dies, tools, and patterns used in
the manufacture of said articles shall be furnished by and at the expense
of the seller. Said dies, tools, and patterns shall be kept in good
condition and from time to time when necessary shall be replaced by the
seller without expense to Spectrian. However, Spectrian has the option at
any time to reimburse the seller for the whole or any part of said dies,
tools, and patterns and replacements and become the owner and entitled to
the possession of same.
13. Spectrian shall have the privilege to make changes in (A) the
specifications, drawings, and samples, if any; (B) the method of shipment
or packaging; (C) the place and time of delivery and (D) the articles and
materials, including the quantity thereof to be furnished by seller. If any
such changes cause an increase or decrease in the cost of, or time required
for, performance of this purchase order, an equitable adjustment shall be
made in the contract price or delivery schedule, or both by mutual consent.
Any claim by seller for adjustment under this clause must be in writing,
and asserted within thirty (30) days from the date of receipt by seller of
the notification.
14. Vendor shall be liable to Spectrian for all consequential and incidental
damages and expenses (including attorneys' fees) actually or proximately
arising from any breach of Vendor's representations, warranties or
covenants herein. Vendor hereby agrees to defend, indemnify and hold
Spectrian, its owners, officers, directors, employees and agents harmless
from and against any and all claims and suits for property damage, personal
injury, death, expenses (including attorneys' fees), economic loss,
foregone profits, losses or damages of any kind whatsoever actually or
proximately arising from (A) any breach of Vendors' representations,
warranties or covenants herein, or (B) infringements or alleged
infringements by any products, materials or designs purchased or furnished
by Vendor of the United States or foreign patents, trademarks, copyrights,
trade secrets or other proprietary rights.
15. Spectrian shall not be held liable for manufacture or shipment of
quantities in excess of authorized releases. However, Spectrian reserves
the right to accept excess quantities in subject to the terms of the sale.
Any such acceptance shall not constitute a revision of the order and
Spectrian shall not be held liable for any further quantities manufactured
or shipped in excess of authorized releases.
16. Spectrian shall not be liable for any cost, loss, or expense incurred by
seller in connection with any material not specifically authorized by
written release unless a scheduled date has been established for subject
material in this purchase order.
17. The remedies of Spectrian under this purchase order are not exclusive and
the exercise by Spectrian of any remedy shall not limit Spectrian in
pursuing other remedies provided for in law.
18. Spectrian reserves the right to gain access to vendor's production
facilities and witness any activities and/or test required to verify
compliance to purchase order and/or drawing specifications.
SUPPLIER
REV. DESCRIPTION OF CHANGE DATE APPROVED
--- --------------------- ---- --------
A RELEASED
UltraRF's
Terms and Conditions
RELEASED
DRAWN BY: Customer Service APPROVAL: Vice President APPROVAL:
Xxxxxx Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxx Xxxxx
DATE: DATE: DATE:
UItraRF
000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
TITLE: DWG NUMBER: REV:
UItraRF's Terms and Conditions 040201 A
SHEET I OF 6
UltraRF CONFIDENTIAL
1. TERMS AND CONDITIONS. Products and services furnished by UltraRF are sold
--------------------
only on the terms and conditions stated herein. Notwithstanding any terms or
conditions in Customer's order, UltraRF's assent and agreement and performance
of any contract is expressly made conditional on Customer's assent to UltraRF's
Terms and Conditions of Sale, whether in writing or by contract, unless
otherwise specifically agreed to in writing by UltraRF. Acceptance or payment
for Product shall constitute assent. All contracts for the sale of Products
shall be construed and governed by the internal laws of the State of California
where UltraRF has its principal place of business.
2. DELIVERY AND PAYMENT, TITLE, RISK OF LOSS & TAXES. Shipping will be FOB
-------------------------------------------------
UltraRF's point of shipment, with title and risk of loss passing to Customer at
that point. Shipping shall be by UltraRF's shipping agent in normal commercial
packaging. Payment will be due thirty (30) days from the date of invoice. Past
due balances shall be subject to a monthly service charge equal to 12% of the
unpaid amount of the invoice, but not more than the amounts allowed by law.
UltraRF will use all reasonable efforts to deliver Products to a mutually
agreeable schedule. However, delivery dates are approximate and UltraRF is not
liable for delays in delivery for any reason. Notwithstanding anything in this
document to the contrary, UltraRF reserves the right to adopt an equitable plan
of allocation and to adjust delivery schedules accordingly in the event of
shortages. Products must be scheduled for delivery within six months of date of
Customer's order Customer agrees to pay all applicable taxes.
3. ACCEPTANCE. The furnishing by UltraRF of a Product to Customer shall
----------
constitute acceptance of that Product by Customer, unless notice of a defect or
nonconformity is received by UltraRF within thirty (30) days of the receipt of
the Product at Customer's designated receiving address. Any use of a Product by
Customer, its agents, employees, contractors or licensees, for any purpose
after receipt thereof, shall constitute acceptance of that Product by Customer.
UltraRF may repair or, at its option, replace defective or nonconforming parts
after receipt of notice of defect or nonconformity.
4. WARRANTY. UltraRF warrants that its Products sold, at the time of shipment,
--------
to be free from defects in material and workmanship and conform to UltraRF's
specifications. For Products that fail to meet warranty, UltraRF shall, at its
option, and as Customer's exclusive remedy, either replace defective Products
with the same or equivalent Products that meet this warranty or refund the
purchase price. Customer must provide written notice of and return
nonconforming Product. This warranty does not apply to Products that have been
subjected to misuse, including, but not limited to, improper testing, assembly,
and mishandling. This warranty shall not be expanded, and no obligation or
liability will arise, due to technical advice, assistance, or service, written
or otherwise, that UltraRF may provide.
THIS WARRANTY EXTENDS TO CUSTOMER ONLY. WARRANTY RETURNS FROM THE CUSTOMER'S
CUTOMER WILL NOT BE ACCEPTED. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS.
(a) Time Period - Product is warranted for a period of three (3) years from
date of shipment.
(b) Exceptions - Device chips and wafers that have received electrical
probe/test and visual inspection are warranted to conform to UltraRF's
specifications or specifications accepted by UltraRF for a period of ninety
(90) days from date of shipment This warranty shall not apply to device chips
or wafers improperly removed from their original shipping container, not stored
per UltraRE's recommended procedures, and/or subjected to testing or
operational procedures not accepted by UltraRF in writing. Chips and wafers
that are purchased untested and development Products and licensed programs are
provided 'AS IS' and without warranty.
2 of 6
5. RESALE. Customer shall not resell any UltraRF Products to brokers or
------
exporters. If Customer breaches the terms of this paragraph, in addition to
UltraRF's cancellation rights, Customer agrees to fully indemnify UltraRF, its
officers, employees and distributors, from any and all liability, including
attorneys' fees and costs. -
6. CRITICAL APPLICATIONS DISCLAIMER. Products are not intended or authorized
--------------------------------
for use in Products surgically implanted into the body, for life support
Products or for other Products for which a Product failure could cause personal
injury or death. If Customer or Customer's customers use Products for such
unintended or unauthorized uses, Customer agrees to fully indemnify UltraRF,
its officers, employees and distributors from all liability, including
attorneys' fees and costs.
7. PATENTS AND OTHER INDUSTRIAL PROPERTY RIGHTS. UltraRF will hold Customer
--------------------------------------------
harmless as set forth herein, in respect to any claim that the design or
manufacture of any Product in UltraRF's commercial line of Products or
manufactured to specifications set by UltraRF and furnished hereunder
constitutes an infringement of any patent or other industrial property rights
of the United States or Canada. UltraRF will pay all damages and costs either
finally awarded in a suit, or paid in UltraRF's sole discretion, by way of
settlement, which are based on such claim of infringement, provided that
UltraRF is notified promptly in writing of such claim of infringement and is
given full authority, information and assistance in settling or defending such
claim. UltraRF shall have no liability whatsoever hereunder with respect to
claims settled by Customer without UltraRF's prior written consent. In the
event that UltraRF is required to hold Customer harmless hereunder, UltraRF
will in its sole discretion and at its own expense, either procure for Customer
the right to continue using the Product, replace it with a non-infringing
Product, or remove it and refund an equitable portion of the selling price and
transportation costs thereof. THIS SHALL CONSTITUTE ULTRARF'S ENTIRE LIABILITY
FOR ANY PATENT OR COPYRIGHT INFRINGEMENT OR CLAIM THEREOF BASED UPON
MODIFICATION OF THE PRODUCTS PERFORMED BY OTHERS THAN ULTRARF, USE OF PRODUCTS
IN COMBINATION WITH OTHER EQUIPMENT OR FOR ANY CLAIM BASED UPON OR RELATED TO
ANY ALLEGED INFRINGEMENT OF ANY PATENT OR OTHER INDUSTRIAL PROPERTY RIGHTS.
Customer shall hold UltraRF harmless against any expense, loss, costs or
damages resulting from claimed infringement of patents, trademarks or other
industrial property rights arising out of compliance by UltraRF with Customer's
design, specifications, or instructions. Except for Customer's implied license
to use and sell a Product incident to its purchase and the implied license of
Customer to sell or otherwise dispose of possession of a copy of a copyrighted
work from UltraRF, the sale of Products does not convey any license by
implication, estoppel, or otherwise. ULTRARF DISCLAIMS LIABILITY FOR ANY U.S.
PATENT OR COPYRIGHT INFRINGEMENT, ARISING FROM USE OR MANUFACTURE BY ANYONE OF
INVENTIONS IN CONNECTION WITH PRODUCTS OR SERVICES SOLD, USED OR INTENDED FOR
SALE OR USE IN PERFORMING CONTRACTS WITH THE UNITED STATES OR RELATED
SUBCONTRACTS.
Customer, without the express prior written consent of UltraRF, does not have
the right to use UltraRFs trademarks, trade names, corporate slogans, corporate
logos, or corporate designations in the sale, lease or advertising of any
Products, or any Product container, component part, business forms, sales,
advertising or proffiotional materials, other business supplies or materials,
whether in writing, orally or otherwise.
3 of 6
8. LIABILITY. ULTRARF'S TOTAL LIABILITY, EXCEPT FOR PERSONAL INJURY, AND
---------
EXCEPT FOR THE LIMITED LIABILITIES OTHERWISE PROVIDED IN SECTIONS 4 AND 7,
WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN
TORT OR OTHERWISE, IS LIMITED TO THE PRICE OF THE PARTICULAR PRODUCTS SOLD
HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED. IN NO
EVENT SHALL ULTRARF BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL
OR SPECIAL DAMAGES OR LIABILITY TO THIRD PARTIES TO THE FULL EXTENT SUCH
MAY BE DISCLAIMED BY LAW.
9. QUOTATIONS AND PRICES. All quotations are subject to the terms and
---------------------
conditions stated herein as well as any additional terms and conditions that
may appear in UltraRF's quotations or proposals. In the case of a conflict
between the terms and conditions stated herein and those appearing in the
quotation or proposal, the latter shall control. UltraRF's prices and
quotations are subject to the following:
(a) All published prices are subject to change without notice.
(b) UNLESS OTHERWISE SPECIFIED IN WRITING, ALL QUOTATIONS ARE FIRM FOR, AND
EXPIRE, THIRTY (30) DAYS AFTER DATE THEREOF AND CONSTITUTE OFFERS. Budgetary
quotations and estimates are for preliminary information only and shall neither
constitute offers, nor impose any responsibility or liability upon UltraRF.
(c) Unless otherwise stated in writing by UltraRF, all prices quoted shall be
exclusive of transportation, insurance, taxes (including without limitation,
any sales, use or similar tax levied on or on an interest in Products), license
fees, customs fee, duties and other charges related thereto, all of which shall
be born by Customer who shall hold UltraRF harmless therefrom, provided that,
if UltraRF, in its sole discretion chooses to make any such payment, customer
shall reimburse UltraRF in full upon demand.
(d) Stenographical, typographical and clerical errors are subject to
correction.
(e) Prices quoted are for Products only and do not include technical data,
proprietary rights of any kind, patent rights, qualification, environmental or
other than UltraRF's standard tests, and other than UltraRF's normal domestic
commercial packaging unless expressly agreed to in writing by UltraRF.
(f) Published weights and dimensions are approximate only. Certified dimension
drawings can be obtained upon request. Manuals, programs, listings, drawings or
other documentation required hereunder must be referenced specifically.
10. ORDERS. All orders shall be subject to acceptance by UltraRF only at its
------
principal place of business.
11. CANCELLATION.
------------
(a) Standard Product: Customer may cancel an order with thirty (30) days
written notice prior to UltraRF's shipment date at no charge.
(b) Special Product (non-standard, custom, or Product unique to a customer):
Customer may cancel order with ninety (90) days written notice prior to
UltraRF's shipment date at no charge. Nevertheless, Customer shall remain
liable to pay for all non-transferable and non-cancelable raw materials and
work in process as of the date that UltraRF receives customer's written
notification of cancellation.
4 of 6
(c) UltraRF reserves the right to cancel all or any part of an order, without
any liability to Customer, if e Customer provides inaccurate information as to
its intended use of the Product, or if Customer is in default under any of the
terms and conditions of this document.
12. SPECIAL PRODUCT. Shipment of Special Product within 5% of the quantity
---------------
ordered constitutes full shipment
13. CONFIDENTIAL INFORMATION. All materials and Products furnished by UltraRF
------------------------
or Customer and identified as containing confidential information must be held
in confidence by the recipient using at least the degree of care the recipient
uses for its own confidential information, but no less than reasonable care.
Recipient may not disclose such materials or confidential information except to
employees who require use of the materials in the performance of their duties.
Confidential information does not include information in the public domain,
information known to the recipient prior to any disclosure hereunder,
information developed independently of any disclosure hereunder, information
later communicated to the recipient by another without obligation of
confidence, or information communicated by the owner to a third party free of
any obligation of confidence. All confidential information and materials
containing confidential information shall be held in confidence by the
recipient for five (5) years after receipt.
14. EXPORT CONDITIONS. If, at the time or times of UltraRF's performance
-----------------
hereunder, an export license is required for UltraRF to lawfully export
Products or technical data, then the issuance of the appropriate licenses to
UltraRF or its subcontractor shall constitute a condition precedent to
UltraRF's obligations hereunder. Customer agrees to comply with all applicable
export laws, regulations and orders. Specifically, but without limitation,
Customer agrees that it will not resell, re-export or ship, directly or
indirectly, any Products or technical data in any form without obtaining
appropriate export or re-export licenses from the U.S. Government. Customer
acknowledges that the applicable export laws, regulations and orders may differ
from item to item and/or from time to time.
15. GOVERNMENT CONTRACT COMPLIANCE. If Customer sells Products to the U.S.
------------------------------
Government, UltraRF makes no representations, certifications, or warranties
whatsoever about compliance with acquisition statutes or regulations, except
UltraRF will comply with the following clauses applicable to subcontracts for
commercial items: FAR 52.222-26, Equal Opportunity; FAR 52.222-35, Affirmative
Action for Special Disabled Vietnam Era Veterans; and FAR 52.222-36,
Affirmative Action for Handicapped Workers. Notwithstanding, if Customer sells
Products to any other public entity, state, or local or international, or to a
prime contractor or subcontractor of such entities, Customer remains solely and
liable for compliance with all acquisition statutes and regulations. Except as
expressly provided in this paragraph, UltraR.F makes no representations,
certifications, or warranties whatsoever about compliance with acquisition
statutes and regulations, including, without limitation, those that may relate
to pricing, quality, origin or content.
16. LICENSED PROGRAMS. In the absence of a separate software license between
-----------------
Customer and UltraRF, the following terms and conditions apply to UltraRF's
licensed programs:
a. Licensed programs include computer software and firmware, Title to the
licensed programs delivered hereunder remain vested in UltraR.F or UltraRF's
licensor and cannot be assigned or transferred without UltraRF's written
authorization. Customer agrees not to reverse engineer, disassemble, de-
compile, or modify any programs.
5 0F 6
b. For stand alone licensed programs, UltraRF grants to Customer a non-
exclusive license to use the licensed programs for its internal use in single
computer system. Customer may make up to (5) copies of the licensed programs
for Customer's internal use, so long as Customer has paid UltraRF's then
current licensing fee and faithfully reproduces all of UltraRF's copyright
notices and proprietary legends on the copies. Customer agrees not to disclose,
in any form, the licensed programs or any portion thereof to any person other
than employees of Customer.
c. For licensed programs embedded in Products, UltraRF grants Customer a
license to use such embedded licensed programs in Products subject to the terms
and conditions herein.
d. If Customer is in default of any of the terms and conditions of this
document, the rights granted herein by UltraRF may be terminated on one month's
prior written notice. Within one month after termination, Customer will furnish
to UltraRF a certificate certifying that the original and all copies of the
licensed programs and derivative versions thereof, in whole or in part and in
any form, have been destroyed.
17. GENERAL.
-------
(a) Entire Agreement; Amendment. This document constitutes the entire and final
---------------------------
agreement and supercedes all other communications. No modifications shall be
binding unless made in a written agreement signed by both parties.
(b) Serviceability. If any provision is held invalid, all other provisions
--------------
shall remain valid.
(c) No Assignment. Neither party may assign its rights and obligations
-------------
hereunder without the prior written consent of the other.
(d) Excusable Delay. UltraRF shall not be liable for any delay or failure to
---------------
perform due to any cause beyond its control.
(e) Dispute Resolution. UltraRF and Customer will attempt to settle all claims
------------------
through negotiation or non-binding mediation prior to commencement of
arbitration proceedings. All disputes concerning any contract or Product
hereunder not otherwise resolved between UltraRF and Customer shall be resolved
by binding arbitration under the Commercial Arbitration Rules of the American
Arbitration Association or such other rules as may be agreed upon by the
parties. The arbitration shall be conducted by a single arbitrator who is an
attorney, chosen and agreed upon by the parties. Arbitration shall be held at
the location of UltraRF's principal place of business. The parties shall be
entitled to reasonable discovery in the discretion of the arbitrator. The
arbitrator shall make a reasoned award stating his conclusions and reasons for
the award. The prevailing party shall be entitled to costs including arbitrator
fees and reasonable attorney fees. Customer consents to exclusive venue and to
personal jurisdiction in the State of California for purposes of litigation of
any matter arising out of this document. No action, regardless of form, arising
out of or in any way connected with the Products or Services furnished by
UltraRF, may be brought by Customer more than one (1) year after the cause of
action has accrued. If any part, provision or clause of the Terms and
Conditions of Sale, or the application thereof to any person or circumstances,
is held invalid, void or unenforceable, such holding shall not affect and shall
leave valid all other parts, provisions, clauses or applications of the terms
and conditions remaining, and to this end the terms and conditions shall be
treated as serviceable.
6 OF 6
CONFIDENTIAL TREATMENT
Schedule 5.1
Warranty Period
[***]
[***]
[***]
[***]
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Schedule 5.2
Scope of Warranty
[***]
[***]
[***]
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
CONFIDENTIAL TREATMENT
Appendix A
Prices
PART PRODUCT FREQUENCY Jul-Sep'00 Oct-Dec'00 Jan-Mar'01 Apr-Jun '01
NUMBER NAME Pricing Pricing Pricing Pricing
------ ----------- --------------- --------- ---------- ---------- ---------- -----------
[***]
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
