EXHIBIT 10.22
AMENDMENT NO. 1, DATED AUGUST 18, 1998, TO THE AGREEMENT BETWEEN
K*TEC ELECTRONICS CORPORATION AND EMULEX CORPORATION
DATED MARCH 12, 1998
The parties agree that the Agreement dated March 12, 1998, referenced above is
amended as follows:
1. Section 2.2, Purchase Orders, is deleted and replaced with the following:
2.2 Purchase Orders. Buyer agrees to provide a firm P.O. (interchangeably
----------------
an "order" or a "P.O.") for the most current 90 day period ("Order
Period") against such forecast. Each order will be subject to
acceptance by Seller and once accepted by Seller shall constitute for
purposes hereof a firm order to purchase such quantities under the
pricing process defined in Section 2.5 within the agreed upon delivery
dates and shall be subject to cancellation charges as set forth in
Section 8.3(b), and Schedule Changes set forth in Section 2.4. For
orders placed during the Order Period, Seller shall automatically
increase the quantity of Products cited in the orders for fibre
channel products by 5%, and for non-fibre channel products by 2 1/2%.
Acceptance by Seller of an order in accordance with this Agreement
shall not be unreasonably withheld.
2. The following new Section 2.8, Customer Purchase Orders, is added:
2.8 Customer Purchase Orders. Seller agrees that, upon receipt of notice
from Buyer, Seller will accept orders directly from Buyer's customers,
IBM and/or DEC only, (Customer's) on the account of Buyer for a period
not to exceed eighteen (18) months from Buyer's notice, unless
mutually agreed. During this period, Seller will ship and invoice
directly to the Customer's. Such orders will be subject to the terms
and conditions in effect between Buyer and Seller at the time such
orders are received by Seller. If Buyer terminates a Customer's right
to place orders directly with Seller, Buyer will notify Seller of such
termination concurrently with Buyer's notice to Customer. In the
event that a Customer's rights under this section is terminated and
Seller is notified of such termination, Seller will ship Products for
orders accepted from that Customer prior to receipt of the notice, but
will not accept further orders from Buyer's Customer.
3. Xxxxxxx 0, Xxxxxxx Xxxxxxxx, is deleted and replaced with the following:
9. Limited Warranty. BUYER ACKNOWLEDGES THAT SELLER IS NOT THE
-----------------
MANUFACTURER OF MOST, IF NOT ALL, OF THE COMPONENTS OF THE PRODUCTS
NOR IS SELLER A THIRD PARTY MANUFACTURER'S AGENT. SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE COMPONENTS
THEREOF, WHICH SELLER DID NOT MANUFACTURE. SELLER SPECIFICALLY
DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN FACT OR BY OPERATION
OF LAW OR OTHERWISE, ANY ORDER, OR IN ANY OTHER MATERIALS, BROCHURES,
PRESENTATIONS, SAMPLES, MODELS OR OTHER DOCUMENTATION OR
COMMUNICATIONS WHETHER ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OR OTHERWISE, WHICH WOULD EXTEND BEYOND THE WARRANTIES
EXPRESSLY CONTAINED HEREIN. SELLER
1
AUTHORIZES BUYER TO ASSERT AT BUYER'S EXPENSE FOR SELLER'S ACCOUNT,
ALL OF SELLER'S RIGHTS UNDER ANY APPLICABLE MANUFACTURER'S WARRANTY,
AND SELLER AGREES TO COOPERATE WITH BUYER IN ASSERTING SUCH RIGHTS;
PROVIDED, HOWEVER, THAT BUYER WILL DEFEND, INDEMNIFY AND HOLD SELLER
HARMLESS FROM AND AGAINST ANY LOSS, LIABILITY OR EXPENSE, INCLUDING
REASONABLE ATTORNEYS' FEES, RESULTING FROM OR ARISING IN CONNECTION
WITH ANY ACTION BY BUYER RELATING TO THE ABOVE AUTHORIZATION.
4. Except as amended above, all terms and conditions of the Agreement remain
in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by
their duly authorized representatives.
K*TEC ELECTRONICS CORPORATION EMULEX CORPORATION
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------ -------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxx Name: Xxxxxxx X. Xxxxxxxxxx
---------------- -----------------------
(Printed or Typed) (Printed or Typed)
Title: President & COO Title: V.P. Finance
--------------- ----------------------
Date: May 14, 1999 Date: June 22, 1999
---------------- -----------------------
2
