Exhibit 10.20
ELANTEC SEMICONDUCTOR, INC.
STOCKING INDEPENDENT REPRESENTATIVE AGREEMENT
This Stocking Independent Representative Agreement (this "Agreement")
is made and entered into as of August 1, 1996 (the "Effective Date") by and
between Elantec Semiconductor, Inc., a Delaware corporation maintaining its
principal place of business at 0000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000
("Elantec"), and Microtek, Inc. a [corporation/partnership/sole proprietorship]
organized under the laws of Japan with its principal place of business located
at 0-0-0 Xxxxx, Xxxxxxxx-Xx, Xxxxx 000.
RECITALS
A. Elantec designs, manufactures and sells certain hybrid and monolithic
integrated circuit products, including the products listed in Exhibit A hereto,
as it may be amended from time to time (the "Elantec Products").
B. Elantec and Representative desire that Representative act as a stocking
independent manufacturer's representative for the promotion and sale of Elantec
Products under the terms and conditions set forth below.
The parties hereto agree as follows:
1. Appointment as Stocking Independent Representative of Elantec.
(a) Appointment. Elantec hereby appoints Representative, and
Representative hereby accepts such appointment, as its non-exclusive stocking
independent manufacturer's representative for the limited purposes of (i)
identifying prospective purchasers and promoting the sale of, and soliciting
orders for, Elantec Products in and limited to the territory described in
Exhibit B attached hereto (the "Territory"), and (ii) distribution of Elantec
Products in the Territory.
(b) Limitations. This appointment authorizes Representative to
solicit orders of Elantec Products only within the Territory. Representative has
no authority to, and agrees that it will not solicit, directly or indirectly,
orders of Elantec Products outside of the Territory.
(c) Independent Contractors. Representative's relationship
with Elantec during the term of this Agreement will be that of an independent
contractor. Representative will not have, and will not represent that it has,
any authority to bind Elantec, to assume, or create any obligation, express or
implied, to enter into any agreements, or to make any warranties or
representations, on behalf of Elantec or in Elantec's name other than as
expressly authorized herein.
(d) Elantec's Reserved Rights.
(i) Elantec Accounts. Elantec reserves the right to
sell Elantec Products directly to those customers in the Territory designated as
"Elantec Accounts" and listed in Exhibit C hereto, and Representative agrees
that it will not be entitled to receive any commission in connection with the
sale of Elantec Products to Elantec Accounts. Elantec further reserves the right
from time to time and in its sole discretion to designate additional Elantec
Accounts.
(ii) In General. Elantec further reserves the right
and privilege to solicit and make sales of its products directly to anyone
anywhere, including without limitation end-users and other distributors, without
being obligated or liable to Representative in any manner or on account of any
such solicitation or sale.
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(iii) OEM Orders. While it is Elantec's usual policy
not to accept orders from OEM customers in quantities fewer than 100 units per
item, but to refer such orders to its distributors, Elantec reserves the right
to fill any such OEM orders directly, at its sole discretion.
(iv) Changes in Elantec Products. Elantec reserves
the right, from time to time, in its sole discretion and without liability to
Representative, to add to or delete from the list of Elantec Products which
Representative is authorized to promote and sell
2. Obligations of Representative. Representative warrants and
represents to and agrees with Elantec that Representative has, and during the
term of this Agreement will continue to maintain, the capacity, facilities and
personnel necessary to perform such functions as are required to carry out its
obligations under this Agreement, that it is ready and willing to do so, and in
particular that:
(a) Marketing Efforts. Representative will use its best
efforts to (i) vigorously and aggressively promote and solicit orders for
Elantec Products within the Territory in accordance with the terms and policies
of Elantec as announced from time to time, and (ii) satisfy those reasonable
criteria and policies with respect to Representative's obligations under this
Agreement developed and announced by Elantec from time to time. Representative,
at its expense, will take an active part in Elantec's sales programs and
participate in distributor product training courses.
(b) Advertising Obligations. Representative will aggressively
advertise Elantec Products in the Territory, provided that Representative will
not use advertisements that have not been approved in writing by Elantec.
(c) Facilities and Personnel. Representative will provide and
maintain, at Representative's expense, (i) a sufficient number of technical and
sales personnel having the knowledge and training necessary to inform customers
properly concerning the features and capabilities of Elantec Products, and to
service and support Elantec Products, and (ii) sufficient sales offices in the
Territory to adequately serve the demand for Elantec Products.
(d) Customer Responsibilities. Representative will: (i) assist
Elantec in locating prospective purchasers of Elantec Products and will provide
all pertinent information concerning Elantec Products to prospective purchasers;
(ii) promptly transmit to Elantec all customer inquiries, complaints and other
important information Representative obtains from or with respect to such
customers; (iii) assist customers in placing orders for Elantec Products and
promptly transmit such orders to Elantec for acceptance or rejection by Elantec
as set forth in this Agreement; and (iv) assist in expediting deliveries of
Elantec Products to purchasers of Elantec Products.
(e) Service and Support. Representative will provide prompt
pre- and post-sale service and support for all Elantec Products located in the
Territory.
(f) Adaptation for Local Market. Unless Elantec otherwise
agrees in writing, Representative will translate all data sheets and Elantec
advertising and promotional materials used in connection with Elantec Products
into the language of the Territory. Representative will obtain Elantec's written
approval of the translated materials prior to distributing or using any such
materials. Representative hereby assigns to Elantec all of its rights in and to
all such translated materials, including but not limited to all related
copyrights.
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(g) No Competing Products. Representative will not sell during
the term of this Agreement any products which Elantec in its sole discretion
deems to be competitive with Elantec Products. Representative warrants that
Exhibit E hereto lists all of the manufacturers and distributors, and their
respective products, that Representative represents as of the Effective Date
and, if Representative undertakes to represent any additional manufacturers or
distributors, or to promote any additional products of the manufacturers and
distributors listed in Exhibit E, Representative will so inform Elantec by
written notice within ten (10) days after such undertaking.
(h) Meetings and Trade Show Attendance. Representative will:
(i) attend, and aggressively promote Elantec Products in such trade shows,
conventions and exhibits as Elantec reasonably requests; (ii) attend any sales
meetings held by Elantec to which Elantec invites Representative with reasonable
notice; and (iii) notify Elantec of Representative's sales meetings and provide
Elantec personnel adequate opportunity to provide sales and promotion
information regarding Elantec Products in such meetings.
(i) Representative Covenants. Representative will: (i) conduct
business in a manner that reflects favorably at all times on Elantec Products
and the good name, goodwill and reputation of Elantec; (ii) avoid deceptive,
misleading or unethical practices that are or might be detrimental to Elantec,
Elantec Products or the public; (iii) make no false or misleading
representations with regard to Elantec or Elantec Products; (iv) not publish or
employ, or cooperate in the publication or employment, of any misleading or
deceptive advertising material with regard to Elantec or Elantec Products; (v)
make no representations, warranties or guarantees to customers or to the trade
with respect to the specifications, features or capabilities of Elantec Products
that are inconsistent with the literature distributed by Elantec; and (vi) not
enter into any contract or engage in any practice detrimental to the interests
of Elantec.
(j) Representative Financial Condition. Representative
warrants and represents that it is in good financial condition, solvent and able
to pay its bills when due. Representative will maintain and employ in connection
with Representative's business under this Agreement such working capital and net
worth as may be required in the reasonable opinion of Elantec to enable
Representative to carry out and perform all of Representative's obligations and
responsibilities under this Agreement; and from time to time, on reasonable
notice by Elantec, Representative will furnish such financial reports and other
financial data as Elantec may reasonably request as necessary to determine
Representative's financial condition.
(k) Compliance with Law. Representative will at all times have
all necessary legal permits and licenses required by any governmental unit or
agency and will comply with all applicable international, national, state,
regional and local laws and regulations, including United States export laws, in
performing its duties hereunder and in any of its dealings with respect to
Elantec Products.
(l) Market Conditions. Representative will advise Elantec
promptly concerning any market information that comes to Representative's
attention respecting Elantec, Elantec Products, Elantec's market position or the
continued competitiveness of Elantec Products in the marketplace. Representative
will confer from time to time, with and at the request of Elantec, on matters
relating to market conditions, sales forecasting and product planning.
(m) Costs and Expenses. Except as expressly provided herein or
agreed to in writing by Elantec and Representative, Representative will pay all
costs and expenses incurred in the performance of Representative's obligation
under this agreement.
(n) Inventory. Representative will carry a representative
inventory of Elantec Products to assure adequate and timely "off-the-shelf"
delivery to customers;
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(o) Export. Representative will take all reasonable and
necessary precautions to prevent ultimate exportation of Elantec products to
countries prohibited by rules or regulations of the United States government,
and to obtain all export licensees and other governmental approvals necessary
prior to the export of any Elantec Products.
3. Obligations of Elantec.
(a) Customer Information. Elantec will transmit to
Representative the names and addresses of prospective customers in the Territory
from whom Elantec receives inquiries regarding Elantec Products.
(b) Marketing and Technical Information. Elantec will provide
Representative with marketing and technical information concerning Elantec
Products, as well as catalogs, suggested resale price lists, and other sales
aids, all in the English language, for the use of Representative, in amounts to
be determined by Elantec in its sole discretion. When Elantec so requests and
upon termination of this Agreement, Representative shall promptly return all
such materials to Elantec in good and usable condition. If Representative fails
to return such materials, the cost of such materials shall be deducted from
commissions otherwise payable to Representative.
4. Forecasts and Records.
(a) Forecasts. Within fifteen (15) days after the end of each
calendar month, Representative will provide to Elantec a written forecast of
orders to be placed for the following four months, by customer and part number,
and a written report containing such other information as Elantec may reasonably
request from time to time.
(b) Records. Representative will maintain, for at least two
(2) years after termination of this Agreement, accurate books and records,
including copies of all customer and other correspondence, relating to
Representative's performance of its obligations under this Agreement, and will
permit examination thereof by Elantec personnel at all reasonable times.
(c) Notification. Representative will notify Elantec in
writing (i) of any claim or proceeding involving Elantec Products within ten
(10) days after Representative learns of such claim or proceeding and (ii)
within thirty (30) days of any change in the management or control of
Representative or any transfer of more than twenty-five percent (25%) of
Representative's voting control or a transfer of substantially all its assets.
5. Customer Orders, Terms of Sale and Billing.
(a) Acceptance. No customer order received by Elantec from
Representative or directly from any customer of Representative for Elantec
Products shall be considered binding unless and until accepted in writing by
Elantec, or, if no written acceptance is given by Elantec, unless or until the
order is shipped. Representative has no right, power or authority, express or
implied to accept any order as binding upon Elantec and Elantec reserves the
right to reject any order placed through Representative.
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(b) Terms of Sale. All sales to customers of Representative
shall be according to Elantec's prices, terms and conditions in effect at the
time of sale. Elantec reserves the right to, in its sole discretion, establish,
change, alter or amend its prices, price lists, discount rates, terms and
conditions of sale, warranty, delivery and packaging charges, methods of payment
and any other matters relating to the sale of Elantec Products without thereby
incurring any obligation or liability to Representative.
(c) Billing. All Elantec Products for which orders are
accepted by Elantec will be shipped and billed by Elantec directly to the
customer. All invoice payments shall be made directly to Elantec by the
customer.
6. Representative Compensation. As full consideration for the
services of Representative under this Agreement in its capacity as an
independent representative, Elantec will pay Representative commissions as set
forth below:
(a) Criteria for Commissions. Representative is eligible to
receive commissions only with respect to orders for Elantec Products placed by
customers in the Territory (other than Elantec Accounts), which orders have been
accepted by Elantec. Except for those cases in which split commissions are
deemed appropriate by Elantec, no commissions be paid on sales to customers
located outside of the Territory. Notwithstanding the other provisions of this
Section 6, no commissions will be paid on orders for which Representative, or an
entity controlled by Representative or which controls Representative, acts as a
distributor. [Representative will also be entitled to receive commissions on
distributor point of sales orders (i. e. orders placed by customers in the
Territory through authorized Elantec distributors) ("Disti POS").]
(b) Commissions on Net Billing Price. As to purchases meeting
the criteria of Section 6(a), Elantec will pay Representative commissions at the
rate set forth in Exhibit D hereto based upon the "Net Billing Price" of sales
of Elantec Products. "Net Billing Price" is defined as the gross selling price
of an Elantec Product, not including any repair, support, interest or finance
charges, reduced by direct costs associated with the sale of such Elantec
Product, including but not limited to discounts, warehousing allowances,
insurance and transportation charges, taxes, rebates, cancellations and returns.
[For Disti POS, the gross selling price is based on the price paid to the
distributor by the customer.] (e.g., stocking orders for resale as described in
Section 7 below.)
(c) Engineering Services Commissions. If as a result of
Representative's efforts Elantec provides engineering services or supplies
products other than Elantec Products to customers in the Territory, Elantec will
pay Representative commissions at the rate set forth in Exhibit D hereto based
on the Net Billing Price of such services or products.
(d) Split Commissions. If Elantec, in its sole discretion,
determines that the sale of Elantec Products within the Territory is the result
of the combined efforts of Representative and any other party or parties,
Elantec will allocate a portion of the commission otherwise payable to
Representative in respect of such sale to such other party or parties. Elantec
shall divide the commission between Representative and the other party or
parties in such proportions as Elantec determines to be equitable, and its
decision to do so and the manner in which it does so shall be final and binding
on all parties involved.
(e) Adjustment of Commission Rate. Elantec reserves the right
to adjust or eliminate commission rates payable on the sale of Elantec Products
on ninety (90) days' prior notice to Representative.
(f) Timing of Payment. Subject to the provisions of Section
11(d) below, Elantec will pay representative commissions earned by
Representative on sales of Elantec Products no later than the last day of the
month following the month in which Elantec receives payment from the customers
for the sales to which such commissions relate. For commissions earned on Disti
POS, Elantec will pay representative on sales of Elantec Products no later than
the last day of the month following the month in which Elantec receives
notification from the distributor of the customer shipments to which such
commissions relate.
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(g) Refunds. No commission shall be due to Representative, and
any commission paid shall be refunded by Representative, with regard to sales of
Elantec Products if (i) such Elantec Products are rejected or returned in whole
or in part, (ii) any portion of the purchase price for such Elantec Products
becomes subject to adjustment or refund or rebate to the customer, or (iii) any
portion of the purchase price for such Elantec Products must be returned by
Elantec to the customer in connection with any proceeding, whether voluntary or
involuntary, involving such customer under any bankruptcy, insolvency or
debtor's relief law. Elantec may deduct any amounts owed] Representative to
Elantec from any commissions owed by Representative to Elantec from any
commissions owed by Elantec to Representative.
7. Stocking for Resale.
(a) General Terms and Conditions of Sale. The terms and
conditions hereof, and Elantec's standard sales terms and conditions as set
forth in Elantec's purchase order acknowledgment form and on Elantec's
Distributor Price List shall apply to all sales hereunder. Any additional or
different terms and conditions set forth on Representative's forms or otherwise
shall be of no effect, even if accepted by Elantec.
(i) Elantec shall notify Representative by Elantec's
standard purchase order acknowledgment form of the estimated shipment dates of
the products covered by purchase orders accepted in accordance with the standard
terms and conditions. In no event, however, will Elantec be liable for delay or
failure to make any shipment or delivery.
(ii) The prices to Representative for all products
shall be Elantec's standard distributor prices as set forth on Elantec's
Distributor Price List in effect at the time of shipment.
(iii) The minimum order quantities shall be Elantec's
standard minimums established from time to time and as in effect at the time
Representative's orders are acknowledged.
(iv) Terms of payment shall be net 30 days, subject
to credit approval by Elantec, payable to Elantec, Inc., at its Milpitas,
California office.
(v) Elantec's prices do not include any federal,
state or local taxes, use, value-added or other taxes, customs duties or similar
fees which Elantec may be required to pay or collect upon the sale or delivery
of the Elantec products or upon collection of the sales price. Representative
agrees to pay all such taxes and fees to Elantec upon Elantec's demand therefor.
(vi) Representative represents and warrants to
Elantec that all products purchased hereunder are for resale in the ordinary
course of Representative's business, and Representative agrees to provide
Elantec with appropriate resale certificate numbers and other documentation
satisfactory to the applicable taxing authorities to substantiate any claim of
exemption from any such taxes or fees.
(vii) Elantec reserves and Representative grants to
Elantec a purchase money security interest in any and all Elantec products
purchased hereunder and the proceeds therefrom to secure the payment of all
amounts owed by Representative to Elantec for such products. Elantec is hereby
authorized, at its election, to file this Agreement as a security agreement or
financing statement with any appropriate government agency necessary to protect
such security interest. Upon the request of Elantec, Representative agrees to
sign any other form of financial statement or other documents necessary to
protect Elantec's security interest in Elantec products as contemplated in this
Section 7(a)(vii).
(viii) Title to all products purchased by
Representative and all risk of loss or damage will pass to Representative or to
such financing institution or other parties as may have been designated by
Representative upon delivery by Elantec of such products to the carrier or to
Representative, whichever first occurs.
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(b) Price Protection. In the event of a reduction in the price
of a product as set forth in Elantec's published Distributor Price List between
the time that such product is ordered by Representative and the time that such
product is shipped to Representative by Elantec, Representative will be billed
for such product at the reduced price.
(c) Product Packaging. All products shipped by Elantec will be
suitably packaged using anti-static materials. Representative is responsible for
assuring that all orders shipped to its customers are similarly packaged in
anti-static material, and that anti-static handling procedures are maintained.
These procedures must be maintained during repackaging, storage, shipment and at
all other times.
(d) Returns Policy.
(i) Representative may return for credit against
future or pending purchase orders a quantity of Elantec products from
Representative's inventory the aggregate price of which (as adjusted where
appropriate pursuant to Section 7(b)) does not exceed 5% of the net sales
(excluding initial stocking quantities) invoiced to Representative by Elantec
for products shipped to Representative in the six months immediately preceding
such return. No return shall be permitted within six months of a prior return
pursuant to this Section 7(d)(i). This return privilege shall apply only if (i)
the returned products have not been in Representative's inventory for more than
twenty-four (24) months after shipment from Elantec; (ii) the returned products
have not been damaged, altered or misused; (iii) the returned products have been
and are currently approved for Representative stocking; (iv) concurrently with
the return, Representative has ordered a quantity of Elantec products the dollar
value of which equals the dollar value of the products returned; (v) all returns
have been made within the time periods specified above; (vi) all products
returned hereunder have been shipped prepaid and accompanied by Elantec's
written authorization; and (vii) products returned to Elantec have been packaged
in suitable anti-static material. Any returned material not so packaged or found
to have been damaged by static electricity may be deemed invalid, and credit may
not be issued.
(ii) Elantec will periodically notify Representative
of discontinued, obsolete or modified products, which may be returned within 30
days of such notification for credit against future or pending purchase orders.
Credit will be given on the basis of Representative's actual purchase price, as
adjusted where appropriate pursuant to Section 7(b). No returns will be
permitted more than 30 days after Elantec's notification.
(e) Warranty; Disclaimer of Warranty; Limitation on Remedy for
Breach of Warranty. EXCEPT AS SET FORTH IN ELANTEC'S MOST CURRENT STANDARD
PRINTED APPLICABLE WARRANTY, ELANTEC MAKES NO WARRANTIES AS TO THE PERFORMANCE
OF ANY ELANTEC PRODUCT AND EACH SUCH ELANTEC PRODUCT IS OTHERWISE SOLD "AS IS."
ELANTEC DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT
LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. THE SOLE REMEDY FOR ANY BREACH OF ELANTEC'S WARRANTY IS
LIMITED TO REPLACEMENT OF DEFECTIVE COMPONENTS, AND DOES NOT COVER INJURY TO
PERSONS OR PROPERTY OR CONSEQUENTIAL DAMAGES OF ANY KIND.
(f) Life Support Systems. LIFE SUPPORT SYSTEMS ARE EQUIPMENT
INTENDED TO SUPPORT OR SUSTAIN LIFE AND WHOSE FAILURE TO PERFORM WHEN PROPERLY
USED IN ACCORDANCE WITH INSTRUCTIONS PROVIDED CAN BE REASONABLY EXPECTED TO
RESULT IN SIGNIFICANT PERSONAL INJURY OR DEATH. REPRESENTATIVE ACKNOWLEDGES THAT
ELANTEC PRODUCTS ARE NOT DESIGNED FOR AND SHOULD NOT BE USED WITHIN LIFE SUPPORT
SYSTEMS WITHOUT THE PRIOR WRITTEN CONSENT OF ELANTEC. REPRESENTATIVE WILL INFORM
USERS CONTEMPLATING APPLICATION OF ELANTEC PRODUCTS IN LIFE SUPPORT SYSTEMS THAT
THEY ARE REQUESTED TO CONTACT ELANTEC FACTORY HEADQUARTERS TO ESTABLISH SUITABLE
TERMS AND CONDITIONS FOR SUCH APPLICATIONS.
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(g) Sales Records and Reports. Representative will provide
Elantec by the 15th of each month with a report containing a list of customers
that purchased Elantec products during the previous month. Each report will
include customer name and location, transshipment location (if any), product
description, quantity, and resale amount (for purposes of verifying the
commissions payable by Elantec to its sales representatives). Representative
will permit Elantec to have full and free access to its sales records for the
purpose of verifying the accuracy of such reports. Representative will provide
Elantec each month with an updated list of Elantec products in Representative's
inventory as of the first day of each month, with quantity on hand and cost
data, and will permit a designated representative of Elantec to inspect and
review such inventory from time to time.
8. Confidentiality. Certain materials and information provided to
Representative by Elantec must be considered confidential. These materials and
information include, but are not limited to, price lists, specifications,
prints, and related items, product plans, marketing plans, as well as
confidential information concerning the business or affairs of Elantec. During
the term of this Agreement and for five years thereafter, Representative will
not use such materials or information in any way contrary to the directions of
Elantec and shall not copy, reproduce, lend, or use such materials or
information in any manner which would allow them to fall into the possession of
persons other than those authorized to have access to them within
Representative's organization.
9. Indemnification.
(a) No Indemnification of Representative. Elantec shall not be
liable for any losses, injuries, damages, or claims of any nature whatsoever
which Representative may be subject to or incur as a result of any of its
activities in connection with this Agreement.
(b) Indemnification by Representative. Representative shall
indemnify Elantec and hold it harmless from any claims, losses or damages, for
personal injury, property damage or any other liability, arising from (i) the
negligence or fault of Representative, its employees or agents, (ii) any
unauthorized use by Representative, its employees or agents of any trademarks,
copyrights or patents relating to Elantec Products, or (iii) any unauthorized
warranty made by Representative, its employees or agents relating to Elantec
Products.
(c) Not Employees. In all matters relating to this Agreement,
neither Representative nor its employees or agents are, or shall act as,
employees of Elantec within the meaning or application of any federal or state
unemployment insurance laws, old age benefit laws, social security laws, workers
compensation or industrial accident laws, or under any other laws or regulations
which may impute any obligations or liability to Elantec by reason of an
employment relationship. Representative shall indemnify Elantec and hold it
harmless from and against any liabilities or obligations imposed or attempted to
be imposed upon Elantec by virtue of any such law with respect to employees of
Representative in performance of this Agreement.
10. Proprietary Rights.
(a) Trademark Use During Agreement. During the term of this
Agreement, Representative is authorized by Elantec to use the trademarks and
logos used by Elantec for Elantec Products in the course of Representative's
advertisement and promotion of the Elantec Products. Representative's use of
such trademarks and logos will be in accordance with Elantec's policies in
effect from time to time, including but not limited to trademark usage and
cooperative advertising policies.
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(b) Use of Type Number Designation; Labels. In connection with
the sales promotion or advertising of Elantec Products, Representative shall use
the name and type number designated by Elantec for each such Elantec Product.
Representative shall not in any way alter Elantec's labels or other identifying
marks on its products.
(c) Advertising. In no event shall Representative's
advertising create the impression that Representative or any entity other than
Elantec is the manufacturer of the Elantec Products. All Representative
advertising which includes use of Elantec trademarks or trade names shall
designate such trademarks with the identification symbol "(R)," where federally
registered, and "O" where not federally registered. All such Representative
advertising must be submitted to Elantec for approval, and such approval must
have been given by Elantec prior to publication. Representative agrees to make
all changes in such advertising reasonably requested by Elantec.
(d) No Representative Rights in Trademarks or Copyrights.
Representative has paid no consideration for the use of Elantec's trademarks,
logos, copyrights, trade names or designations, and nothing contained in this
Agreement shall give Representative any interest in any of them. Representative
acknowledges that Elantec owns and retains all copyrights and other proprietary
rights in all Elantec Products, and agrees that it will not at any time during
or after this Agreement assert or claim any interest in or do anything that may
adversely effect the validity or enforceability of any patent, trademark, trade
name, copyright or logo belonging or licensed to Elantec.
(e) No Continuing Rights. Upon expiration or termination of
this Agreement, Representative will forthwith cease all display, advertising and
use of all Elantec names, marks, logos and designations and will not thereafter,
use, advertise or display any name, xxxx, logo or designation which is, or any
part of which is, confusingly similar to that which is associated with any
Elantec Product.
(f) Obligation to Protect. Representative agrees to use
reasonable efforts to protect Elantec's proprietary rights and to cooperate
without charge in Elantec's efforts to protect its proprietary rights.
Representative agrees to notify Elantec of any known or suspected breach of
Elantec's proprietary rights that comes to Representative's attention.
(g) Unauthorized Use of Elantec Products. Representative will
not alter or reverse-engineer Elantec Products.
11. Duration and Termination of Agreement.
(a) Term. The term of this Agreement shall begin on the
Effective Date, and shall expire twelve (12) months thereafter unless earlier
terminated as provided herein. Nothing contained herein shall be interpreted as
requiring either party to renew this Agreement, and neither party expects this
Agreement to be renewed.
(b) Termination at Will. Notwithstanding the above,
Representative or Elantec may terminate this Agreement at will, at any time
during the one year term of this Agreement, with or without cause, by written
notice given to the other party not less than thirty (30) days prior to the
effective date of such termination. Due to the personal nature of this
Agreement, Elantec also reserves the right to terminate this Agreement
immediately upon any material change in ownership or control of Representative.
(c) Automatic Termination. This Agreement terminates
automatically, with no further act or action of either party, if a receiver is
appointed for Representative or its property, Representative makes an assignment
for the benefit of its creditors, any proceedings are commenced by, for or
against Representative under any bankruptcy, insolvency or debtors relief law,
Representative is liquidated or dissolved or the assets of Representative are
nationalized.
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(d) Commission Rights on Expiration or Termination. Upon
termination or expiration of this Agreement, Representative shall be entitled to
commissions on orders for Elantec Products that satisfy the requirements of
Section 6(a) of this Agreement only if such orders are accepted by Elantec prior
to the effective date of termination and only to the extent such orders are
acknowledged for shipment within three (3) months after such date. Elantec
reserves the right to withhold a reasonable portion of Representative's final
commission payment for a period of up to ninety (90) days to allow for customer
returns.
(e) Effect of Termination or Expiration. Upon termination or
expiration of this Agreement: (i) Representative shall cease to use any Elantec
trademark, trade name, logo or designation; (ii) Representative shall
immediately refund to Elantec any excess commission paid pursuant to Section 6
of this Agreement; and (iii) for a period of two (2) years after the date of
termination, Representative shall make available to Elantec for inspection and
copying all books and records of Representative that pertain to Representative's
performance of and compliance with its obligations and representations under
this Agreement. In the event of any termination of this Agreement for which a
notice period is required, all shipments from Elantec to Representative on or
after the date of giving written notice of termination shall be on a C.O.D.
basis. However, if the Representative's account is past due at the time of
shipment, Elantec, in its sole discretion, may require cash in advance, may hold
up shipment until the account is brought up to date, or may cancel any order to
be shipped if the account is not brought up to date on or before the effective
date of termination.
(f) No Damages for Termination or Expiration. NEITHER ELANTEC
NOR REPRESENTATIVE SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND,
INCLUDING INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR
EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH THIS SECTION 10. REPRESENTATIVE
WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON
TERMINATION OR EXPIRATION OF THIS AGREEMENT, OTHER THAN AS EXPRESSLY PROVIDED IN
THIS AGREEMENT. NEITHER ELANTEC NOR REPRESENTATIVE SHALL BE LIABLE TO THE OTHER
ON ACCOUNT OF TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR REIMBURSEMENT OR
DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED SALES, OR
ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY
EITHER ELANTEC OR REPRESENTATIVE OR FOR ANY OTHER REASON WHATSOEVER BASED UPON
OR GROWING OUT OF SUCH TERMINATION OR EXPIRATION. REPRESENTATIVE ACKNOWLEDGES
AND AGREES THAT (i) REPRESENTATIVE HAS NO EXPECTATION AND HAS RECEIVED NO
ASSURANCES THAT ITS BUSINESS RELATIONSHIP WITH ELANTEC WILL CONTINUE BEYOND THE
STATED TERM OF THIS AGREEMENT OR ITS EARLIER TERMINATION IN ACCORDANCE WITH THIS
SECTION 10, THAT ANY INVESTMENT BY REPRESENTATIVE IN THE DISTRIBUTION ON ELANTEC
PRODUCTS WILL BE RECOVERED OR RECOUPED, OR THAT REPRESENTATIVE SHALL OBTAIN ANY
ANTICIPATED AMOUNT OF PROFITS BY VIRTUE OF THIS AGREEMENT; AND (ii)
REPRESENTATIVE SHALL NOT HAVE OR ACQUIRE BY VIRTUE OF THIS AGREEMENT OR
OTHERWISE ANY VESTED, PROPRIETARY OR OTHER RIGHT IN THE DISTRIBUTION OF ELANTEC
PRODUCTS OR IN ANY GOODWILL CREATED BY ITS EFFORTS HEREUNDER.
(g) Survival. Elantec's rights and Representative's obligating
under Sections 4(b), 6(g), 8, 9 and 10 shall survive expiration or termination
of this Agreement.
12. Limitation of Liability. IN NO EVENT SHALL ELANTEC BE LIABLE,
EITHER IN CONTRACT OR IN TORT, FOR DAMAGES, INCLUDING BUT NOT LIMITED TO
CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES BY REASON OF FAILURE OF ANY
ELANTEC PRODUCT TO FUNCTION PROPERLY, OR OTHERWISE HEREUNDER, EVEN IF ELANTEC
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
54
13. General.
(a) Assignment. This Agreement shall not be assignable by
either party, and Representative may not delegate its duties hereunder without
the prior written consent of Elantec; provided, however, that Elantec may assign
this Agreement to a subsidiary or entity controlling, controlled by or under
common control with Elantec. The provisions hereof shall be binding upon and
inure to the benefit of the parties, their successors and permitted assigns.
(b) Notices. All notices hereunder shall be in writing and
shall be served by personal service, by facsimile, or by certified or registered
mail, return receipt requested, at the address of the receiving party set forth
on the signature page hereof, or at such other address as may be designated by
such party by written notice to the other party. Notice by personal service
shall be deemed given when delivered. Notice by facsimile shall be deemed given
when sent. Notice by mail shall be deemed given five days after mailing.
(c) Section Headings and Language Interpretation. The section
headings contained herein are for reference only and shall not be considered
substantive parts of this Agreement. The use of the singular or plural form
shall include the other form, and the use of masculine, feminine or neuter
genders shall include the other genders.
(d) Governing Law and Choice of Forum. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California, U.S.A. (except that body of laws controlling conflicts of law). The
English-language version of this Agreement controls when interpreting this
Agreement. Representative agrees that any litigation regarding the
interpretation, breach or enforcement of this Agreement shall be filed in and
heard by the state or federal courts with jurisdiction to hear such disputes in
Santa Xxxxx County, California, and Representative hereby submits to the
personal jurisdiction of such courts.
(e) Choice of Language. The original of this Agreement has
been written in English. Representative waives any right it may have under the
law of the Territory to have this Agreement written in the language of the
Territory.
(f) Force Majeure. Neither Elantec nor Representative shall be
responsible for any failure to perform due to unforeseen circumstances or to
causes beyond Elantec's or Representative's control, including but not limited
to acts of God, war, riot, embargoes, acts of civil or military authorities,
fire, floods, accidents, strikes, or shortages of transportation, facilities,
fuel, energy, labor or materials.
(g) Equitable Relief. Representative acknowledges that any
breach of its obligations under this Agreement with respect to the proprietary
rights or confidential information of Elantec will cause Elantec irreparable
injury for which there are inadequate remedies at law, and therefore Elantec
will be entitled to obtain equitable relief in addition to all of the remedies
provided by this Agreement or available at law.
(h) Entire Agreement and Waiver. This Agreement constitutes
the entire agreement between the parties pertaining to the subject matter
hereof, and supersedes in their entirety any and all written or oral agreements
previously existing between the parties with respect to such subject matter. By
acceptance of this Agreement, Representative waives and releases any and all
claims against Elantec arising under prior agreements, whether oral or in
writing. Representative acknowledges that it is not entering into this Agreement
on the basis of any representations not expressly contained herein. Any
modifications of this Agreement must be in writing and signed by both parties
hereto. The waiver by Elantec of any default by Representative shall not waive
subsequent defaults by Representative of the same or a different kind.
55
(i) Agreement, the prevailing party in such
litigation shall be entitled to recover from the other party all the costs,
attorneys' fees and other expenses incurred by such prevailing party in the
litigation.
(ii) Severability. In the event any of the provisions
of this Agreement shall be held by a court or other tribunal of competent
jurisdiction to be unenforceable, the other portions of this Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
ELANTEC SEMICONDUCTOR, INC. REPRESENTATIVE
By: /s/ Xxxxx Xxxxxxxxxx By: /s/ Sadao Honda
-------------------- ---------------
Signature Signature
Xxxxx Xxxxxxxxxx Sadao Honda
---------------- -----------
Printed Name Printed Name
Vice President of Marketing Director of Marketing
--------------------------- ---------------------
Printed Title Printed Title
Address: Address:
0000 Xxxxx Xxxxx 0-0-0 Xxxxx
Xxxxxxxx XX 00000 Suginami-Ku
USA Tokyo Japan
56
EXHIBIT A
ELANTEC PRODUCTS
----------------
All current Elantec products.
57
EXHIBIT B
TERRITORY
---------
Japan
58
EXHIBIT C
ELANTEC ACCOUNTS
----------------
Accounts continuously assigned by RSM.
59
EXHIBIT D
COMMISSION RATES
----------------
SALES BY REPRESENTATIVE OF ELANTEC PRODUCTS:
ENGINEERING SERVICES OR SALES OF NON-ELANTEC
PRODUCTS (AS DEFINED HEREIN) BY ELANTEC:
10%
60
EXHIBIT E
COMPETITION
-----------
Analog Devices
Xxxx Xxxxx
Gennum
Xxxxxx Semi
Linear Technology
Maxim
Micrel
Microlinear
National Semiconductor/Comlinear
Raytheon
Semtech
Telcom
Unitrode
61
