EXHIBIT 10.21
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement") is entered into as of March 31,
2000 (the "Effective Date"), between TRW Inc., an Ohio corporation, through its
Space and Electronics Group ("TRW") and Endwave Corporation, a Delaware
corporation ("Company").
W I T N E S S E T H:
WHEREAS, Company specializes in the manufacture of microwave and millimeter
wave modules and outdoor units for the telecommunications industry;
WHEREAS, TRW currently has certain technical service capabilities which
would be useful to Company in the conduct of its business; and
WHEREAS, Company desires to obtain from TRW, and TRW is willing to provide
to Company, services useful to Company;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
SERVICES; CONFIRMATION OF TRW POSITION
1.1 SERVICES: At Company's request, TRW will provide Company with the
services described on Schedule 1.1 ("Services") at times and places mutually
convenient to Company and TRW.
1.2 STATUS: TRW will perform all Services as an independent contractor.
Nothing in this Agreement will constitute an appointment of TRW as Company's
agent or authorize TRW to enter into any binding legal commitment on behalf of
Company.
1.3 DESIGN RIGHTS: Title to all inventions, discoveries, patents, computer
software, and technical information created, conceived and/or generated by
employees of TRW in the course of or under this Agreement (hereinafter
"Foreground Intellectual Property") will remain in TRW.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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1.3.1 INITIAL PERIOD: With respect to all Foreground Intellectual
Property created, conceived and/or generated within the period from the
Effective Date to the date six (6) months from the Effective Date, Company
is hereby granted:
1.3.1.1 subject to the reservation set forth in Section 1.3.1.4
below, an exclusive even as to TRW, royalty-free, worldwide,
perpetual, irrevocable right and license, with the right to
sublicense, to manufacture, use, test, sell, offer to sell,
distribute, repair, rebuild, display, market, import and export under
and/or using the Foreground Intellectual Property the specific
products and services designed by TRW under this Agreement in fields
of endeavor up to and including One Hundred Thousand (100,000) feet
above the surface of the earth where the customer (and the customer's
ultimate customer) is other than a government organization; and
1.3.1.2 a non-exclusive, royalty-free, worldwide, perpetual,
irrevocable right and license, with the right to sublicense, to
manufacture, use, test, sell, offer to sell, distribute, repair,
rebuild, display, market, import and export all other products and
services in all other fields of endeavor under and/or using Foreground
Intellectual Property; and
1.3.1.3 a non-exclusive, royalty-free, worldwide, perpetual,
irrevocable right and license, with the right to sublicense, to
manufacture, use, test, sell, offer to sell, distribute, repair,
rebuild, display, market, import and export products and services
under any other TRW-owned intellectual property rights, but only to
the extent such other intellectual property rights are necessary for
the manufacture, use, test, sale, offer for sale, distribution,
repair, rebuild, display, marketing, importing and exporting of
products and services designed by TRW under this Agreement in fields
of endeavor up to and including One Hundred Thousand (100,000) feet
above the surface of the earth where the customer (and the customer's
ultimate customer) is other than a government organization.
1.3.1.4 TRW reserves unto itself the non-exclusive right and
license, with the right to sublicense only as set forth in this
subsection, to manufacture, use, test, sell, offer to sell,
distribute, repair, rebuild, display, market, import and export under
and/or using Foreground Intellectual Property the specific products
and services designed by TRW under this Agreement in fields of
endeavor up to and including One Hundred Thousand (100,000) feet above
the surface of the earth where the customer (and the customer's
ultimate customer) is other than a government organization, such
license being limited to servicing Nokia and/or Nortel in the event
that TRW reasonably determines that Company is unable to fulfill its
contractual obligations with respect to one or both of those
customers. The license granted in this subsection can be further
sublicensed only as is necessary to have a third party perform work or
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produce the specific products and services designed by TRW under this
Agreement for Nokia and/or Nortel on behalf of TRW.
1.3.2 SUBSEQUENT PERIOD: With respect to all Foreground Intellectual
Property created, conceived and/or generated subsequent to the date six (6)
months from the Effective Date, Company is hereby granted:
1.3.2.1 a non-exclusive, royalty-free, worldwide, perpetual,
irrevocable right and license, with the right to sublicense, to
manufacture, use, test, sell, offer to sell, distribute, repair,
rebuild, display, market, import and export products and services
under and/or using Foreground Intellectual Property; and
1.3.2.2 a non-exclusive, royalty-free, worldwide, perpetual,
irrevocable right and license, with the right to sublicense, to
manufacture, use, test, sell, offer to sell, distribute, repair,
rebuild, display, market, import and export products and services
under any other TRW-owned intellectual property rights, but only to
the extent such other intellectual property rights are necessary for
the manufacture, use, test, sale, offer for sale, distribution,
repair, rebuild, display, marketing, importing and exporting of
products and services designed by TRW under this Agreement.
ARTICLE II
COMPENSATION
2.1 HOURLY FEE: For the Services described on Schedule 1.1, Company will
pay TRW an Hourly Fee (the "Hourly Fee") as described on Schedule 2.1 for
calendar year 2000. The Hourly Fee will be increased annually on January lst of
each year by [*] the prior year's Hourly Fee.
2.2 TRAVEL EXPENSES: In addition to the Hourly Fee, if TRW personnel are
required to travel away from their ordinary place of employment to perform
Services, then Company will (i) reimburse TRW for all reasonable travel, lodging
and meal expenses incurred by such personnel in connection therewith, and (ii)
pay TRW the Hourly Fee described in Schedule 2.1 for each hour of Services TRW
personnel perform away from their ordinary place of employment.
2.3 ADDITIONAL EQUIPMENT AND SERVICES: On Company's request, TRW and
Company will consult to determine whether TRW can provide Company with equipment
and additional services at prices to be mutually determined by the parties.
2.4 STATEMENTS: Within ten (10) days after the end of each month, TRW will
submit statements to Company for payment of fees and reimbursement of travel
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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expenses hereunder. Such statements will clearly specify the nature of services
performed or equipment provided, the amount and method of computing the fees
covered thereby, and will include documentation of reimbursable expenses and
such other information as may be appropriate. Within thirty (30) days after its
receipt of such a statement, Company will pay TRW the amount shown on such
statement at the place and in the manner requested by TRW.
ARTICLE III
TERM OF THIS AGREEMENT
3.1 INITIAL TERM: The initial term of this Agreement (the "Initial Term")
will be the two-year period beginning March 31, 2000 and ending March 31, 2002.
3.2 RENEWAL TERM(S): By written agreement of Company and TRW, the parties
may renew the term of this Agreement for one or more additional terms (the
"Renewal Terms") of one (1) year each, each such Renewal Term beginning
immediately after the end of the preceding Initial Term or Renewal Term, as the
case may be.
3.3 MUTUAL TERMINATION: By written agreement signed by Company and TRW, the
parties may terminate this Agreement at any time.
3.4 TERMINATION FOR CAUSE: If either party materially breaches any covenant
or otherwise fails to perform any material obligation under this Agreement, and
fails to cure such breach within thirty (30) days after having been requested to
do so in writing by the other party, such other party, by delivering written
notice to the breaching party, may terminate this Agreement effective as of the
date specified in the terminating party's notice (which date will not be earlier
than the date of the notice).
3.5 RETURN OF EQUIPMENt: Upon any termination of this Agreement, Company
will return to TRW any equipment provided under this Agreement, and Company will
discontinue its use of such equipment.
ARTICLE IV
PROPRIETARY INFORMATION
4.1 PROPRIETARY INFORMATION. For the purpose of this Agreement:
(a) "Proprietary Information" shall mean all drawings, documents,
ideas, know-how and other information supplied by one party to another
(whether disclosed orally, or in documentary form, by demonstration or
otherwise) for the purpose of achieving the objectives of this Agreement.
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(b) "Proper Use" shall mean use of the Proprietary Information solely
by the recipient for the objectives of this Agreement.
4.2 NONDISCLOSURE. All Proprietary Information furnished shall remain the
property of the disclosing party and shall be treated by the recipient in strict
confidence, shall not be used except for Proper Use, shall be disclosed by the
recipient only to persons within the recipient's company (including companies
directly or indirectly more than fifty percent (50%) owned or controlled by the
recipient) who are directly concerned in the Proper Use, and shall not be
disclosed to consultants or by the recipient to any other party without the
disclosing party's prior written consent, except for Proprietary Information
that was:
(a) In the public domain at the time it was disclosed; or
(b) Known to the recipient without restriction at the time of receipt;
or
(c) Published or becomes available to others without restriction
through no act or failure to act on the part of the recipient; or
(d) Known to the recipient from a source other than the disclosing
party without breach of this Agreement by the recipient; or
(e) Subsequently designated by the disclosing party in writing as no
longer proprietary; or
(f) Independently developed by the recipient without reference to the
Proprietary Information; or
(g) Disclosed after five (5) years from the date of delivery by the
disclosing party to the recipient, which five (5) year period shall survive
the termination of this Agreement; provided, however, that if Company, as a
result of an agreement with a customer, requires a longer nondisclosure
period, the parties shall agree to such longer nondisclosure periods with
regard to Proprietary Information applicable to such customer's contract.
If any portion of Proprietary Information falls within any one of these
exceptions, the remainder shall continue to be subject to the foregoing
prohibitions and restrictions. The recipient of Proprietary Information shall
inform its employees of the confidential nature of the Proprietary Information
and shall prohibit them from making copies of any of it except where such copies
are necessary for the purposes of Proper Use, unless agreed upon by the
disclosing party. The recipient of Proprietary Information shall exercise the
same degree of care in protecting such Proprietary Information as it takes to
preserve and safeguard its own proprietary information, and in no event less
than a degree of care a reasonable recipient would use to protect its own
proprietary information.
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4.3 MARKING. Proprietary Information made available in written form by one
party to the other party shall be marked with the legend:
"ENDWAVE PROPRIETARY INFORMATION"
or - "TRW PROPRIETARY INFORMATION"
as the case may be, or an equivalent conspicuous legend. No sheet or page of any
written material shall be so labeled which is not, in good faith, believed by
the disclosing party to contain Proprietary Information. A recipient of
Proprietary Information hereunder shall have no obligation with respect to any
portion of any written material which is not so labeled or any information
received orally unless it is identified as proprietary and a written summary of
such oral communication, specifically identifying the items of Proprietary
Information, is furnished to the recipient within thirty (30) days of such
disclosure.
The individuals identified below are the only persons authorized to receive
Proprietary Information on behalf of the parties:
For Company: Xx Xxxxxx, Xxx Xxxxxx, Xxxx Xxxxxxxx, Xxxxx
Xxxxxxx
For TRW: Xxxxx Daegale, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx
By written notice to the other parties, these representatives may be replaced by
another person from the same party.
4.4 COMPENSATION. The parties shall not be obligated to compensate each
other for the transfer of any Proprietary Information under this Agreement and
agree that no warranties of any kind are given with respect to such Proprietary
Information or any use thereof. No license is hereby granted under any patent,
trademark or copyrights with respect to any Proprietary Information.
4.5 SURVIVAL. The obligations of the parties concerning confidentiality set
forth in this Article IV shall survive termination or completion of this
Agreement.
ARTICLE V
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY'S CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING
FROM OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID TO TRW BY
COMPANY FOR SERVICES RENDERED PURSUANT TO THIS AGREEMENT. NEITHER PARTY SHALL
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTIAL, PUNITIVE, EXEMPLARY,
SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
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ARTICLE VI
MISCELLANEOUS
6.1 SAP: At Company's request, for up to six months after the Effective
Date, TRW will, for no fee, provide assistance to the Company with SAP
transition planning and the negotiation of a long-term services agreement for
SAP. At Company's request, Company can continue to utilize TRW's SAP system, at
Company's expense, for a period of one year after the Effective Date.
6.2 AMENDMENTS: This Agreement may be amended at any time but only by
written instrument executed by the parties hereto.
6.3 WAIVERS: Either party may at any time waive compliance by the other
party with any covenant or condition contained in this Agreement but only by
written instrument executed by the party waiving such compliance. No such
waiver, however, will be deemed to constitute the waiver of any such covenant or
condition by any other party or in any other circumstance or to constitute the
waiver of any other covenant or condition.
6.4 SEVERABILITY: If any provision of this Agreement is finally determined
by a court of competent jurisdiction to be unlawful, such provision will be
deemed to be severed from this Agreement and every other provision of this
Agreement will remain in full force and effect.
6.5 NOTICES: All notices, requests and other communications hereunder will
be in writing and will be deemed to have been duly given, if delivered by hand,
at the time of receipt or, if communicated by cable or similar electronic means,
at the time receipt thereof has been confirmed by return electronic
communication or signal that the message has been clearly received, or if
mailed, seven (7) days after mailing, registered or certified airmail, return
receipt requested, with postage prepaid:
If to Company, to: Endwave Corporation
000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
If to TRW, to: TRW Inc.
Xxx Xxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
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provided, however, that if any party has designated a different address by
notice to the other given as provided above, then to the last address so
designated.
6.6 ASSIGNMENT: This Agreement will be binding upon and inure to the
benefit of the the permitted successors-in-interest each party. Neither party
shall, without the consent in writing of the other party, which consent shall
not be unreasonably withheld, assign or transfer this Agreement or the benefits
or obligations hereof or any part hereof to any other person other than a
subsidiary wholly owned by such party; provided, however, that no consent shall
be necessary to the extent that either party is acquired by merger or other
acquisition or either party sells all or substantially all of its assets to a
third party.
6.7 THIRD PARTIES: This Agreement is not intended to, and will not, create
any rights in or confer any benefits upon anyone other than the parties hereto
or their permitted assigns.
6.8 INCORPORATION BY REFERENCE: The Schedules to this Agreement constitute
integral parts of this Agreement and are hereby incorporated into this Agreement
by this reference.
6.9 GOVERNING LAW: This Agreement will be governed by and construed in
accordance with the internal substantive laws of California, without regard to
its conflicts of laws provisions.
6.10 COUNTERPARTS: More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart will be
deemed an original without production of the others.
IN WITNESS WHEREOF, Company and TRW have each caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
Endwave Corporation
By /s/ XXXXXX X. XXXXXX, XX.
---------------------------------
TRW Inc.
By /s/ XXXXXX X. XXXX
--------------------------------
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SCHEDULE 1.1
SERVICES
1. TECHNICAL ASSISTANCE: TRW shall use reasonable efforts to provide Company
with technical assistance, in the following areas:
RF Design: Provide simulation, design, development and test support for product
development between 15 and 65 GHz. Agreement includes support to RF, DC and I/F
design, development and test activities. Support also includes assisting in
troubleshooting activities related to module design and or test sets.
Digital Design: Provide simulation, design, development and test support for
product development between 15 and 65 GHz. Agreement includes activities related
to the design, development and testing of DC board, phase locked loop (PLL), I/F
board and I/F circuits. Support also includes assisting in troubleshooting
activities related to module design and or test sets.
MMIC Design: Provide simulation, design, layout and test support for MMIC
development and fabrication for devices between 15 and 65 GHz. Agreement also
includes support necessary to successfully complete a foundry service contract.
Testing and evaluation of fabricated devices (on-wafer and/or fixtured) is
included as part of this agreement.
MPD Assembly and Test: Provide MPD assembly and test (automated and/or manual)
capability using standard MPD processes.
Mechanical/Product Engineering: Provide simulation, design, development and test
support for product development between 15 and 65 GHz. Agreement includes
activities related to the design, development, fabrication and testing of
mechanical housings, covers, RF boards, DC boards and connectors. Support may
also include thermal, stress, reliability, shock and/or vibration analysis.
Agreement also includes assisting troubleshooting activities related to module
design.
Parts, Material and Processes (PM&P): Provide support to material and process
qualification, certification, and failure analysis.
Contracts: On a short-term basis (up to one year after closing), provide
personnel to assist in contract negotiation, establishment, closeout and
discrepancy resolution.
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SCHEDULE 2.1
HOURLY FEES
TRW shall provide the Services set forth in Schedule 1.1 to Company in the form
of employee hours at the following rates:
[*]
Travel and other related expenses will be charged at the actual expense
incurred.
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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