CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 10.40
MANUFACTURING SERVICES AND SUPPLY AGREEMENT
THIS MANUFACTURING SERVICES AND SUPPLY AGREEMENT ("AGREEMENT") is made
as of September 5, 2002 ("EFFECTIVE DATE") by and between Solectron Corporation,
a Delaware Corporation, and its subsidiaries and affiliates, which includes
Solectron Technology Singapore Ltd., Solectron Technology Sdn Bhd, Solectron
Netherlands BV and any other Offshore Business Headquarters ("OBHQs")
("MANUFACTURER") with Solectron Corporation's principal place of business at 000
Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, XXX, and Asyst Technologies, Inc.
("ASYST") with Asyst Technologies, Inc.'s principal place of business at 00000
Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxx 00000, XXX. Solectron Corporation and its
subsidiaries and affiliates and Asyst may individually be referred to in this
Agreement as a "Party," and collectively referred to as the "Parties."
1. Scope of Manufacturing Services and Other Matters
1.1 The manufacture, purchase and sale of the products
specified in Attachment A ("Products") (each individually a "PRODUCT" and
collectively the "PRODUCTS") is governed solely by the terms and conditions (i)
of this Agreement and (ii) of Asyst's purchase orders to the extent that such
purchase orders provide shipping instructions or other directions indicated in
section 3.2 and not in conflict with this Agreement. Pre-printed terms and
conditions of any purchase order or any other document will have no force or
effect. Asyst shall provide Manufacturer with the Asyst Product specifications
in Attachment B ("Product Specifications") ("SPECIFICATIONS") that are necessary
for Manufacturer to manufacture Products for delivery to Asyst and Asyst's
affiliates and subsidiaries under this Agreement and, at Asyst's option, other
tangible embodiments of the Product Technology (as defined in Section 2.1) for
use in the manufacture of Products.
1.2 Manufacturer shall:
1.2.1 manufacture the Products in such quantities as
Asyst may order in accordance with Section 3 below;
1.2.2 ensure that all manufacture and assembly of the
Products hereunder shall be strictly in accordance with the Specifications;
1.2.3 manufacture all Products to a standard consistent
with good manufacturing practices;
1.2.4 be solely responsible for ensuring full compliance
with all applicable laws and regulations applicable to Manufacturer;
1.2.5 provide such services as are necessary for
assembly, in-circuit test, functional test, packaging and delivery of the
Products in accordance with the Specifications, and
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
which includes the testing of software used in or with the Products throughout
such software's intended life cycle;
1.2.6 provide to Asyst, and use in the assembly of the
Products, devices and printed material that have been pre-approved by Asyst and
appear on Asyst's xxxx of material ("BOM") and Asyst's approved vendor list
("AVL") for the Products;
1.2.7 provide materials to properly package the Products
in accordance with the Specifications set forth by Asyst's engineering
documents, drawings, artwork, BOM and AVL, and with standard shipping
requirements to provide adequate protection from damage during transit or
storage while in transit;
1.2.8 provide design for manufacturability and technical
support services to Asyst's new and existing Product development teams in
accordance with Asyst's then-current processes and procedures, which current
processes and procedures are described in Attachment F ("Assembly/Test
Requirements"), Attachment L ("Supplier Quality Requirements") and Attachment P
("Development and Engineering Change Requirements"), and as product ideas evolve
into potential new Products or improvements to existing Products;
1.2.9 provide in-warranty and out of warranty Product
repair and refurbishment services for all Products manufactured and sold to
Asyst and Asyst's subsidiaries and affiliates hereunder, which for out of repair
warranty services the Parties will reasonably determine within ninety (90) days
of the Effective Date the prices and additional processes and terms that apply
to such services and, upon agreement by the Parties, amend Exhibit H-3 to
Attachment H ("Repair and Refurbishment Procedures") to set forth in writing in
this Agreement such agreed prices and additional processes and terms;
1.2.10 maintain an adequate inventory of spare parts for
use in the support and service of the Products that are available for shipment,
which quantities, prices, service levels, and service delivery methodologies
will be reasonably determined by the Parties within ninety (90) days after the
Effective Date and set forth in writing in this Agreement such quantities,
service levels, and methodologies;
1.2.11 work with Asyst to select and maintain inventory
sources sufficient to enable Asyst to meet its customers' contract requirements;
Asyst shall provide Manufacturer with information regarding such requirements;
1.2.12 continuously supply and deliver Products to Asyst
and Asyst's affiliates and subsidiaries upon their request throughout the term
of this Agreement;
1.2.13 use its best efforts to effectuate during the
Transition Period a movement of the manufacture of the Products from Asyst's
existing manufacturing facilities to those mutually agreed manufacturing
facilities of Manufacturer; and
1.2.12 designate a project manager to act as
Manufacturer's single point of contact with Asyst in connection with each new
Product release to be manufactured hereunder;
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
2.
the project manager's responsibilities and other details regarding new Product
development and release shall be agreed upon by the Parties in writing.
1.3 Manufacturer will own all inventory that Manufacturer
procures for use in the production of Asyst's Products unless and until
purchased by Asyst or an Asyst affiliate or subsidiary under this Agreement via
a purchase order from such entity.
1.4 No later than October 14, 2002 (or October 31, 2002 if
Manufacturer is unable to hire at least two (2) accounts payable personnel from
Asyst as part of the employees for which Manufacturer makes offers to pursuant
to Section 10.7) (the "TRANSFER DATE") Manufacturer will purchase Asyst's
existing active inventory of components that are identified on Attachment K
("List of Existing Component Parts") ("EXISTING COMPONENT PARTS") for intended
use and incorporation into the Products or delivery as spare parts to Asyst and
Asyst's affiliates and subsidiaries. Manufacturer shall pay to Asyst an amount
that will not be less than [*] or exceed [*] for this inventory, which specific
value shall be determined on the Transfer Date at Asyst's then-current standard
cost for the Existing Component Parts. Manufacturer shall transfer to an
Asyst-designated bank account such amount via wire transfer in immediately
available funds on the Transfer Date.
1.5 The Products listed on Attachment A ("Products") represent
those products that Asyst desires to obtain from Manufacturer, and Manufacturer
desires to manufacture and supply to Asyst and Asyst's subsidiaries and
affiliates, as of the Effective Date. From time to time, Asyst may request in
writing for Manufacturer to manufacture a new product for supply to Asyst and
Asyst's affiliates and subsidiaries under the provisions of this Agreement (a
"New Product"). If Asyst requests in writing for Manufacturer to manufacture a
New Product, Asyst will provide to Manufacturer at such time a proposed product
introduction plan, a ramp plan, the Product Specifications and other pertinent
information for such New Product. Manufacturer will consider in good faith all
such information, and the Parties will determine in good faith the pricing terms
and delivery timeframes that will apply to such New Product. Manufacturer will
not unreasonably withhold, delay or condition its approval to the requested
addition by Asyst of a New Product to this Agreement if such New Product is
similar or comparable in feature and function to any existing Product that is or
has been provided by Manufacturer to Asyst under this Agreement. As to pricing
for such New Product, unless otherwise agreed in writing by the Parties, the
Parties will adopt a similar and comparable pricing methodology for such New
Product as that pricing methodology used in this Agreement for comparable
existing Products. If the Parties reach agreement upon the inclusion of such New
Product under this Agreement, then subject to Section 19.15 the Parties will
promptly amend in writing this Agreement, including the addition of all
applicable agreed upon new terms or modification of additional terms, to add the
New Product to this Agreement.
1.6 Manufacturer acknowledges that Asyst has certain
electronic data interchange requirements that Manufacture must meet in order to
supply Products and exchange information under this Agreement, which are
attached as Attachment M ("B2B Messaging"). Manufacturer will use commercially
reasonable efforts to implement all such electronic
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
3.
interchange requirements as soon as practicable, but no later than March 31,
2003. Each Party will bear its own costs of implementation of any such
requirements.
1.7 As of the Effective Date, Asyst and Manufacturer have
agreed upon certain tentative activities and milestones that Manufacturer must
achieve in connection with the transition of the manufacture by Asyst to
Manufacturer of the Products and the later movement of the manufacture of the
Products from Asyst's existing manufacturing facilities to those of
Manufacturer, which activities and milestones are set forth in Attachment O
("Transition Plan"), which are subject to change upon mutual agreement by Asyst
and Manufacturer. Within thirty (30) days after the Effective Date, Manufacturer
and Asyst shall refine further all such activities and milestones and agree upon
and document in greater detail all processes and procedures that Manufacturer
must follow and comply with in connection with the manufacture of Products under
this Agreement for supply to Asyst, and the movement of the manufacture by Asyst
of the Products through from Asyst's existing manufacturing facilities to those
of Manufacturer, including organization charts, reporting responsibilities and
such other matters associated with the manufacture of the Products by
Manufacturer (the "Final Plan"). Subject to and upon its written approval by
both parties, the Final Plan shall supersede and replace the existing schedule
of activities and milestones within Attachment O ("Transition Plan").
2. Grant of License
2.1 Asyst hereby grants Manufacturer a worldwide nonexclusive,
nontransferable, royalty-free right and license, without the right to
sublicense, to use the Product Technology supplied by Asyst to Manufacturer
hereunder, solely to manufacture the Products for sale to Asyst and Asyst's
affiliates and subsidiaries. "PRODUCT TECHNOLOGY" means all object code and
source code, schematic diagrams, information and other related processes and
tangible embodiments relating in any way to the Products, and all other
Confidential Information supplied by Asyst, as well as all patents, copyrights,
mask works, circuit layout rights, design rights, trade secret rights, and other
proprietary rights including intellectual property, in or covering the
foregoing.
2.2 Manufacturer acknowledges Asyst's ownership of the Product
Technology, and agrees that it will do nothing inconsistent with such ownership.
Nothing in this Agreement shall give Manufacturer any right, title or interest
in the Product Technology other than the right to manufacture the Products as
provided herein for distribution to Asyst and Asyst's affiliates and
subsidiaries. In addition, Manufacturer shall:
2.2.1 not challenge, deny or disavow Asyst's ownership
rights in the Product Technology or otherwise attack the validity or scope of
the license granted in Section 2.1, modify, reproduce, duplicate, copy or
otherwise disclose, use, distribute or disseminate the Product Technology in any
form, except as expressly provided herein;
2.2.2 restrict disclosure of and access to the Product
Technology to those of its employees and permitted subcontractors who are
required to use the Product Technology in the course of their employment, for
the purposes consistent with this Agreement and who are
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
4.
bound by written agreement to treat such Product Technology no less
restrictively than as set forth in Section 13 ("Confidential Information");
2.2.3 use its best commercial efforts to prevent any
third party, to the extent known by Manufacturer, from infringing upon Asyst's
rights in the Product Technology and to notify Asyst promptly of any
unauthorized use or disclosure of the Product Technology by others as each such
unauthorized use or disclosure comes to Manufacturer's attention; and
2.2.4 upon the effective date of expiration or earlier
termination of this Agreement, and at its own expense, promptly return to Asyst
the Product Technology and all drawings, blueprints, manuals, specifications,
lists, documentation, source or object codes, tapes, disks, or other storage
media, letters, notes, notebooks, reports, flowcharts, and all other materials
in its possession or under its control relating to the Product Technology.
3. Product Quantity Forecast and Ordering Rules
3.1 Manufacturer shall sell and deliver Products to Asyst in
accordance with purchase orders issued by Asyst. Asyst shall provide a minimum
[*] purchase order with Manufacturer that will be updated by Asyst on a weekly
basis and include at least [*] of purchase order coverage. Asyst will also
provide [*] forecasts to Manufacturer for Products. The forecast is an
estimation of quantities required and will be reissued [*]. All commitments for
purchases of Products made by Asyst shall be made only upon issuance by Asyst of
purchase orders under this Agreement. All forecasts issued under this Agreement
are non-binding and Asyst shall (i) have no obligation to issue any purchase
orders for any quantity of Products; and (ii) incur no responsibility for any
components or materials that Manufacture may acquire in reliance upon any
forecast, except for any Asyst liability as provided in Section 4.5 for those
components that have lead times longer than the purchase order coverage and that
cannot be subsequently canceled without penalty.
3.2 Purchase orders shall refer to this Agreement and contain:
(i) Product description (i.e., Asyst part number and revision level), (ii)
quantity, (iii) routing instructions, (iv) requested delivery date(s), (v)
destination, and (vi) confirmation of price. The term "delivery date" appearing
on Asyst's purchase orders or any change order means the on-dock date of Asyst
or Asyst's affiliates, subsidiaries or customers.
3.3 Within [*] days after receipt of any purchase order that
is consistent with the then-current Asyst forecast and [*] days after receipt of
any purchase order for Products not contained in the then-current Asyst
forecast, Manufacturer will provide Asyst with written acknowledgment accepting
the purchase order or, if the purchase order is not consistent with the
then-current forecast, rejecting the order and the reasons therefor. On
acceptance of a purchase order, Manufacturer shall confirm the requested
delivery date. If Asyst does not receive notice of Manufacturer's rejection of a
purchase order that is consistent with the most recent forecast within the [*]
period, the purchase order shall be deemed accepted.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
5.
3.4 Manufacturer's prices provided under this Agreement will
not include any premium for overtime labor charges for increased quantities of
Products required to be delivered within the flexibility limits set forth in the
table below. Any charges for overtime that Manufacturer incurs for increased
quantities of Products beyond such flexibility limits must be approved in
advance by Asyst. Manufacturer will develop a supply chain model that will
facilitate performance of its obligations hereunder and enable Asyst to meet its
quarterly forecasted revenue targets.
3.5 Asyst and Asyst's affiliates and subsidiaries may, from
time to time, and subject to the table below, reschedule in writing for later
delivery those quantities of Products contained in binding purchase orders.
Asyst may also request at any time for Manufacturer to increase the quantities
on order up to the maximum amounts that are set forth in the below schedule, and
Manufacturer shall accommodate such request. Subject to Manufacturer's
compliance with the provisions of Sections 3.7 and 3.8, and Manufacturer's
mitigation obligations under Section 4.7, any liability to Asyst for excess and
obsolete inventory of components and materials purchased by Manufacturer for use
in Products that have not otherwise been used by Manufacturer will be determined
in accordance with Sections 4.5 and 4.6 after taking into consideration the
below table that limits the amount of components and materials that may be
increased or rescheduled, without the prior written consent of Manufacturer, for
use in production to manufacture Products:
MAXIMUM ALLOWABLE INCREASE OR RESCHEDULE QUANTITIES
Maximum Reschedule
Number of days Period from
before Delivery Maximum Originally Scheduled
Date on Asyst Maximum Reschedule Delivery Date on Asyst
Purchase Order Increase Quantity Quantity Purchase Order
------------------- --------------------- -------------- --------------------------
[*] [*]% [*]% [*] days
------------------- --------------------- -------------- --------------------------
[*] [*]% [*]% [*] days [*]
------------------- --------------------- -------------- --------------------------
[*] [*]% [*]% [*] days [*]
------------------- --------------------- -------------- --------------------------
[*] [*]% [*]% [*] days [*]
------------------- --------------------- -------------- --------------------------
[*] [*]% [*]% [*]
------------------- --------------------- -------------- --------------------------
* Asyst and Asyst's affiliates and subsidiaries may [*] as long as the
final delivery date is within such period.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
6.
Asyst acknowledges that upside flexibility may be dependent upon Manufacturer's
ability to achieve Vendor Managed Inventory implementation of materials and
components. Excess material caused by a reschedule or cancellation will be
subject to the provisions in Section 4.
3.6 Manufacturer will notify Asyst in writing immediately
after Manufacturer becomes aware of a reasonable likelihood that there is or
will be a materials or capacity constraint that could negatively affect
Manufacturer's ability to meet any existing or forecasted needs under this
Agreement for Product(s) ("Supply Constraint"). During any period of Supply
Constraint, Manufacturer agrees to allocate materials and capacity to Asyst and
Asyst's affiliates and subsidiaries under whichever of the following formulas
would give them the greatest quantity of Products: (i) [*] to their [*] of all
of Manufacturer's customer orders for the previous [*] months for Products which
use the scarce materials or capacity; (ii) [*] to their [*] of all of
Manufacturer's customer forecasts for the same or similar products that use the
same scarce materials or capacity; or (iii) any [*] which Manufacturer uses [*].
3.7 Manufacturer will ensure that the amount of finished goods
inventory, work in process, components and materials on hand is limited to that
amount that is required to support the agreed upon lead times and the maximum
allowable increased quantities that are set forth in the above schedule in
Section 3.5 of this Agreement (collectively "Inventory"). Notwithstanding
anything to the contrary, the costs incurred by Manufacturer for any purchases
or the manufacture of components and materials beyond that required for the
Inventory will be borne by Manufacturer. Within sixty (60) days after the
Effective Date and a quarterly basis thereafter, Manufacturer will provide Asyst
with a [*] plan to require vendors that supply components to Manufacturer to be
part of a Vendor Managed Inventory program. Manufacturer will use commercially
reasonable efforts to establish and maintain contractual arrangements with key
suppliers to include components and materials that are intended for use in the
Products in Manufacturer's then-current Vendor Managed Inventory program, and
Asyst will provide reasonable cooperation and appropriate involvement in such
efforts.
3.8 The Parties acknowledge that certain components intended
for inclusion in Products are subject to ordering lead times in excess of [*]
days ("LONG LEAD TIME COMPONENTS"), which components are identified in the list
set forth on Attachment C ("Long Lead Time Components"). From time to time and
during the term of the Agreement on at least a [*] basis, Manufacturer will
provide written updates to such list of the Long Lead Time Components to Asyst
for Asyst's review and acceptance. Any updates that are requested by
Manufacturer to the list of Long Lead Time Components must be approved in
writing by Asyst. Any update that Manufacturer requests will be deemed to be
accepted by Asyst unless Manufacturer is notified in writing by Asyst of its
objection to such update within [*] days after Asyst receives the requested
update from Manufacturer. If Asyst refuses to accept such update to the list of
Long Lead Time Components, then, notwithstanding Manufacturer's obligations to
accept purchase orders and deliver Products under this Agreement to Asyst,
Manufacturer shall be entitled to reject subsequent purchase orders from Asyst
that it cannot fulfill because it does not have the necessary Long Lead Time
Components on hand, but would have otherwise had
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
7.
them on hand had Asyst not objected to Manufacturer's requested update to the
list of Long Lead Time Components.
4. Excess Material Finished goods and raw material liability will be
evaluated [*] as or as mutually agreed by the Parties. Liability will be
assessed in accordance with Section 4.5 to Asyst following identification of [*]
Excess Inventory and [*] Excess Inventory as defined in Sections 4.1 and 4.2,
respectively, and identified in Section 4.4 below.
4.1 "[*] EXCESS INVENTORY" is defined as those: (a) components
and materials of Manufacturer which are on hand or are
Non-cancelable/non-returnable material on order that (i) are to be used in
Products, (ii) are not classified as Long Lead Time Components, and (iii) are in
excess of [*] days of demand as identified in purchase orders, which have been
supplied to Manufacturer under this Agreement, and (b) Long Lead Time Components
of Manufacturer which are on hand or are non-cancelable/non-returnable material
that (i) are to be used in Products, (ii) Asyst has authorized Manufacturer to
purchase in accordance with Section 3.8, and (ii) are in excess of those
portions of Asyst's forecasts encompassing units that contain such Long Lead
Time Components, but in all cases excluding from subsections 4.1(a) and 4.1(b)
above any and all components and materials or Non-cancelable/non-returnable
material on order that are classified as Existing Component Parts or [*] Excess
Inventory.
4.2 "[*] EXCESS INVENTORY" is defined as components and
materials of Manufacturer which are on hand or are non-cancelable/non-returnable
material on order that may have been previously classified as [*] Excess
Inventory, have not been used in Products or otherwise sold by Manufacturer, and
are in excess of [*] days of demand as identified in Asyst's forecasts, but in
all cases excluding from subsections 4.2(a) and 4.2(b) above any and all
components and materials or Non-cancelable/non-returnable material on order that
are classified as Existing Component Parts.
4.3 "NON-CANCELABLE/NON-RETURNABLE MATERIAL" are those
components of Manufacturer for which Manufacturer has negotiated agreements, or
Manufacturer has assumed agreement obligations negotiated by Asyst, with
suppliers that do not provide for the return and/or cancellation of such
components without the payment by Manufacturer of more than a nominal charge,
but in all cases excluding Existing Component Parts.
4.4 Manufacturer will determine if there is [*] Excess
Inventory or [*] Excess Inventory against the demand and flexibility
requirements of Asyst and Asyst's affiliates and subsidiaries that are set forth
in Section 3.5 of this Agreement and, if Manufacturer so determines, then
Manufacturer will provide promptly all such relevant information to Asyst [*].
Any liability for [*] Excess Inventory and [*] Excess Inventory will be
determined in accordance with Section 4.5 for such [*] Excess Inventory and [*]
Excess Inventory that Manufacturer cannot reduce by mitigation per standard
purchasing practices and as required under Section 4.7.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
8.
4.5 Subject to the provisions of Section 3.7, Asyst's
liability for [*] Excess Inventory and [*] Excess Inventory under this Agreement
is to be determined and assessed as follows:
4.5.1 For [*] Excess Inventory, Asyst will be charged
carrying costs at a monthly rate of [*].
4.5.2 For [*] Excess Inventory, Asyst shall take receipt
of the inventory within [*] days of notification, at current material cost plus
(i) a [*] cost of acquisition for material or components purchased by
Manufacturer, or (ii) a [*] cost of manufacture for material or components
manufactured by Manufacturer.
4.6 All Existing Component Parts that are acquired by
Manufacturer from Asyst pursuant to Section 1.4 will be used by Manufacturer for
production requirements or otherwise sold by Manufacturer as spare parts to
Asyst and Asyst's affiliates and subsidiaries. Manufacturer will use its best
efforts to absorb promptly into production or otherwise sell all such Existing
Component Parts. Any Existing Component Parts that are not absorbed by
Manufacturer into its production or otherwise sold by Manufacturer within [*]
months will be considered as excess, and will be subject to a [*] per month
carrying charge. Such Existing Component Parts that are not absorbed into
Manufacturer's production or otherwise sold by Manufacturer within an additional
[*] months thereafter (i.e., total elapsed time of [*] days) will be immediately
repurchased by Asyst at the same allocated price that Manufacturer previously
paid to Asyst for such Existing Component Parts.
4.7 Notwithstanding anything to the contrary, in the event of
a cancellation by Asyst of a purchase order, issuance by Asyst of a Stop
Production Notice, engineering change orders, purges, approved vendor list
disqualification, end of life notice or forecast reduction, Manufacturer shall
take the actions indicated below upon written request from Asyst to do so. Upon
receipt by Manufacturer of such notice from Asyst, Manufacturer shall do the
following:
4.7.1 Immediately reduce/cancel its outstanding purchase
orders for components and raw materials by the quantities in excess of those
needed to meet Asyst's requirements.
4.7.2 Discontinue upside support positioning.
4.7.3 [*] inventory of materials that Manufacturer may
reasonably claim it was required to purchase in order to comply with Asyst's
delivery requirements and in-line with the appropriate quantity of Asyst-unique
economic order quantities and Long Lead Time Components inventory (the "ASYST
Inventory"). Asyst reserves the right, at its option, to perform an audit of the
Asyst Inventory. Asyst's liability to pay, reimburse, or otherwise compensate
Manufacturer for Asyst Inventory shall not exceed the maximum Asyst Inventory
that was reasonably required to obtain in order to fulfill Asyst's purchase
orders.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9.
4.7.4 Use commercially reasonable efforts to return the
components to suppliers to Manufacturer at the same price at which they were
purchased.
4.7.5 Use commercially reasonable efforts to sell the
components to a third party subject to written approval by Asyst, at a price
acceptable to Asyst. Asyst shall reimburse Manufacturer for the difference
between Manufacturer's purchase price (plus the cost of acquisition not to
exceed [*]) and the Asyst-approved price at which it sold the component to a
third party. If the sales price exceeds Manufacturer's component purchase price,
then the excess shall first be applied to offset any obligation of Asyst under
this paragraph and any excess thereafter shall be retained by Manufacturer.
Except as may be mutually agreed otherwise, Asyst agrees that Manufacturer is
not required to continue mitigation of Asyst material and component liabilities
beyond a [*]-day period from the date of initial written notification from
Manufacturer to Asyst of any potential material liability under Section 4.5.
4.7.6 Rework Asyst Inventory, at Asyst's request, at a
mutually agreed upon price and schedule.
4.7.8 Use commercially reasonable efforts to provide
Asyst documentation, reasonably satisfactory to Asyst, within [*] business days
after completion of mitigation activities indicating the quantities and kind of
Asyst Inventory that Manufacturer has not resold, reused or redirected to other
use, or is not able to resell or otherwise use. Such documentation shall include
mitigation activities undertaken by Manufacturer.
4.7.9 Subsequent to Manufacturer's efforts under Sections
4.7.1 through 4.7.8 above Asyst shall respond in detail regarding to
Manufacturer's claim for reimbursement or compensation within [*] days after
receipt of the documentation. Asyst shall pay any undisputed portion of
Manufacturer's claim within [*] days of receipt of the claim.
4.8 Asyst or any of Asyst's affiliates or subsidiaries may,
from time to time, request the cancellation of all or any part of a purchase
order prior to shipment of any units of Products that are the subject of the
purchase order. If any such cancellation arises or results from the failure by
Manufacturer to perform in any material respect its obligations under this
Agreement in connection with the shipment of such units under such purchase
order, and such failure results in the cancellation of an order by a customer
with Asyst or any of Asyst's affiliates or subsidiaries, then Asyst and Asyst's
affiliates and subsidiaries shall not be liable to Manufacturer for any
cancellation or other charges associated with the cancellation of such purchase
order with Manufacturer. For any other cancellation of a purchase order, the
Parties agrees to negotiate, in good faith, the cost to Asyst of such
cancellation for which Asyst will be liable. Except as otherwise provided in the
second sentence of this Section 4.8, Asyst's liability for cancellation charges
for such purchase orders shall not exceed (a) for that quantity of finished
Products scheduled for delivery, the Product price; and (b) for that quantity of
components and materials intended for inclusion in Products to be manufactured
for delivery to Asyst within applicable leadtimes, the current material cost for
such items plus (i) a [*] cost of acquisition for
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
10.
components and materials purchased by Manufacturer, or (ii) a [*] cost of
manufacture for components and materials internally manufactured by
Manufacturer.
5.0 Payment Terms and Audit Rights
5.1 Asyst agrees to payment terms, from date of invoice or
shipment date whichever is later, of [*] days for the first [*] months of this
Agreement, and [*] days at all times thereafter for amounts due under this
Agreement. All undisputed amounts due will be paid within such time frames upon
receipt by Asyst or the applicable Asyst affiliate or subsidiary of a proper
invoice from Manufacturer. All amounts that are due under this Agreement from
Asyst or any Asyst affiliate or subsidiary will be invoiced by Manufacturer in
U.S. Dollars, and such amounts will be paid by Asyst or such Asyst affiliate or
subsidiary to Manufacturer in U.S. Dollars.
5.2 Asyst shall have the right, during normal business hours
and upon reasonable written notice to inspect and audit, either directly or
through an authorized representative, Manufacturer's processes as they relate to
the manufacture and delivery to Asyst of Products. Promptly upon request by
Asyst, Manufacturer will provide to Asyst (a) accurate and complete details of
all actual material costs incurred through the entire manufacturing process for
the Products, and (b) non-confidential records for Asyst to verify such costs.
6. Delivery and Stop Notices
6.1 If Products are manufactured outside of the United States,
Asyst shall be responsible for all actions necessary to import and export of the
Products into the United States, including compliance with applicable laws and
regulations and payment of all required duties, fees and charges. Manufacturer
shall provide, at no additional charge, reasonable cooperation to Asyst,
including the provision of all necessary information for the exportation of the
Products. Deliveries originating inside or outside the United States will be
made FCA (Incoterms 2000) Manufacturer's facility unless otherwise agreed in
writing by Asyst and Manufacturer.
6.2 Manufacturer will use commercially reasonable efforts to
support processes of Asyst that provide for shipment of Products from
Manufacturer's point of manufacture directly to Asyst's point of consumption,
e.g., Asyst direct end-users.
6.3 Manufacturer will use its best commercial efforts to
establish and maintain a supply side relationship with Manufacturer's vendors
where a [*]-day supply of Vendor Managed Inventory of components and materials
will be kept to produce Products by Manufacturer, and a maximum of [*]-day
liability will be obtained for non-cancellable and non-returnable components and
materials that are to be used in Products.
6.4 If Manufacturer fails to meet the delivery requirements of
Asyst's and Asyst's affiliates or subsidiaries, in whole or part, under this
Agreement and such failure results in a delay by Asyst or Asyst's affiliates in
the delivery of Products to customers, then Manufacturer will take all
appropriate actions, at Manufacturer's own expense, to attempt to
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
11.
resolve such failure and reduce the likelihood of such similar failures in the
future. Such actions may include the establishment of inventory buffers or
incremental capacity, performance of overtime work and such other actions that
are reasonably necessary or appropriate under the circumstances.
6.5 If Manufacturer is unable to deliver the total quantity of
Products ordered on the scheduled delivery date, Manufacturer shall notify Asyst
promptly, and Asyst may, at its sole option, consent to partial delivery. If
Asyst does not consent, Asyst may: (i) reschedule the delivery; or (ii) if such
partial delivery is due to fault of Manufacturer and Asyst loses customer orders
as a result of such delay, cancel the affected portion of the order without any
further obligation to Manufacturer. Partial deliveries shall be separately
invoiced by Manufacturer.
6.6 If Manufacturer fails to deliver Products to Asyst or
Asyst's subsidiaries or affiliates within the delivery times established in
binding purchase orders, at the request of Asyst or any Asyst affiliate or
subsidiary, Manufacturer shall bear the costs of expedited delivery of such
Products from Manufacturer's facility to the applicable customer of Asyst or
Asyst's affiliate or subsidiary.
6.7 Asyst may direct in writing Manufacturer to stop the
production of Products during any stage of the manufacturing process (a "STOP
PRODUCTION NOTICE"). Asyst shall have the right to direct Manufacturer to
prepare Products up through a particular level of the manufacturing process and
to hold such partially completed Products pending modifications to be
implemented as a result of error correction activities. If a Stop Production
Notice from Asyst is not due to Manufacturer's negligence or a failure to
perform its obligations under this Agreement, then Asyst shall be responsible
for the actual and reasonable costs incurred by Manufacturer as a result of such
Stop Production Notice. Asyst shall, however, not be liable for any overtime
charges or additional costs arising from component product price variances which
are incurred by Manufacturer or its agents or subcontractors due to factors
attributable to the Manufacturer's negligence or failure to perform its
obligations under this Agreement.
6.8 Asyst reserves the right to refuse delivery of any
quantity of Products in excess of those specified in its purchase orders and/or
any delivery made more than five (5) days in advance of a requested delivery
date. Asyst may, at its option, return such quantities freight collect or may,
at its option, retain such units with payment therefore deferred until such
payment would have otherwise become due.
7. New Product Introduction Development Services and Engineering
Changes.
7.1 Upon written request by Asyst, Manufacturer will provide
new product introduction development services to Asyst at mutually
agreed upon dates and times and a negotiated rate or fee, which rate or
fee shall not exceed the standard rate or fee that Manufacturer charges
to other parties for the same or similar type of services in connection
with other new product introduction development arrangements. Any such
new product introduction development services will be provided by
Manufacturer to Asyst in accordance with the
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
12.
processes and procedures, and service level agreement applicable to such
processes and procedures, in Attachment P ("Development and Engineering Change
Requirements").
7.2 "ENGINEERING CHANGE" means a mechanical, electrical, piece
part or subassembly design or Specifications change made to the Products or to
any manufacturing, assembly or testing method, procedure or process which, if
made, could affect the schedule, performance, reliability, availability,
serviceability, appearance, dimensions, tolerances, safety or costs
(collectively, the "CHARACTERISTICS") of or for a Product. Manufacturer will
receive, evaluate and implement Engineering Changes to the Products in
accordance with the processes and procedures set forth in Attachment P
("Development and Engineering Change Requirements") For each non-critical
Engineering Change requested by Asyst, Manufacturer will respond in writing
within [*] business days of receipt, with a preliminary impact report. For each
critical Engineering Change requested by Asyst, Manufacturer will respond in
writing within [*] business day of Asyst's written request. The response by
Manufacturer will state the cost savings or increase, any labor, inventory and
scrap material impact, if any, expected to be created by the requested
Engineering Change, and the effect on Product Characteristics and composition
and cost of the xxxx of materials for the Products. The Parties acknowledge that
such a response will be an initial indicator of potential cost impact pending a
more detailed review of liability. Such a detailed review will be completed by
Manufacturer and supplied to Asyst within [*] business days. If Asyst requests
for Manufacturer to incorporate an Engineering Change into Products, the
applicable Specifications will be amended as required, subject to mutual
agreement on any necessary reimbursement of Manufacturer's extra costs
(including labor, manufacturing supplies and inventory) incurred as a result
provided, however, if an Engineering Change is necessary as a result of the
fault of Manufacturer, then Manufacturer shall bear the entire cost of the
implementation of any such Engineering Change. Manufacturer shall not make or
incorporate any Engineering Changes to the Characteristics to or form a Product
without Asyst's prior written authorization.
8. Components, Tooling and Equipment
8.1 If Asyst consigns any components or materials to
Manufacturer, the Parties shall agree upon inspection and handling procedures
prior to shipment of such components or materials to Manufacturer. Manufacturer
shall provide Asyst, on a quarterly basis, a reference list showing quantity on
hand of any consigned components.
8.2 Upon request by Manufacturer, Asyst may pay Manufacturer
for Manufacturer's cost in acquiring or developing certain non-recurring
engineering tooling and/or fixtures used by Manufacturer to manufacture the
Products (the "NRE TOOLING") only if the cost of the NRE Tooling is approved in
advance and in writing by Asyst through the issuance by Asyst of a purchase
order or by some other written authorization from a representative of Asyst that
is authorized to provide such authorization. At its option, Asyst may provide
such NRE Tooling to Manufacturer under and subject to the terms of the Equipment
Loan Agreement set forth in Attachment D ("Equipment Loan Agreement").
Manufacturer hereby acknowledges and agrees that such terms apply to any such
loan of NRE Tooling made by Asyst to Manufacturer in connection with this
Agreement.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
13.
8.3 Asyst will, at no cost to Manufacturer and pursuant to
Attachment D ("Equipment Loan Agreement"), loan certain test and tooling
equipment that Asyst owns or has the right to possess ("TEST EQUIPMENT") to
Manufacturer, solely for the purpose of permitting Manufacturer to perform
functional tests and repair on the Products that are to be supplied to Asyst and
Asyst's affiliates and subsidiaries. Test Equipment that will be provided by
Asyst to Manufacturer for such purpose shall be listed in Attachment E ("Test
and Tooling Equipment"). Manufacturer shall (i) exercise reasonable care in the
use and custody of Test Equipment and use the Test Equipment solely for purposes
of performing its obligations under this Agreement, (ii) perform regular
maintenance on Test Equipment at no charge to Asyst, excluding replacement of
parts for which Asyst will be billed provided, however, that Asyst will not pay
for any replacement of parts which are damaged by Manufacturer, and (iii) with
prior written approval of Asyst, repair Test Equipment at a reasonable charge,
unless such Test Equipment was damaged by Manufacturer. Any required replacement
of non-repairable Test Equipment is subject to Asyst's prior verification of the
condition. Any reimbursement for any required calibration of Test Equipment
performed by Manufacturer will be as agreed by the Parties.
8.4 All NRE tooling and Test Equipment are the exclusive
property of Asyst. Manufacturer shall not mortgage, pledge, assign or borrow
against, or otherwise create or attempt to create a security interest in, the
NRE Tooling and Test Equipment. Manufacturer shall return to Asyst, or assign at
Asyst's written direction, any or all of the NRE Tooling and Test Equipment upon
the effective date of the expiration or earlier termination of this Agreement,
or receipt of Asyst's written request therefor. Upon written request by Asyst,
Manufacturer shall provide Asyst a written inventory list of all NRE Tooling and
Test Equipment in its possession within [*] business days after such request.
9. Quality and Other Requirements
9.1 Manufacturer shall (i) manufacture, perform inspection,
functional and other tests on, and deliver to Asyst and Asyst's affiliates and
subsidiaries Products in accordance with all of the requirements set forth in
Attachment F ("Assembly/Test Requirements") and Attachment L ("Supplier Quality
Requirements"); and (ii) provide to Asyst statistical process control data on
all critical processes, including yield and failure analysis reports detailing
the cause of any and all such failures which occur during any such processes.
Such reports shall be provided in writing to Asyst on a weekly basis in a format
agreed upon by the Parties.
9.2 Manufacturer shall ensure that each Product meets the
applicable Specifications and is tested and inspected prior to delivery in
accordance with all applicable quality and reliability testing methods and
procedures. Manufacturer will provide only those Products conforming to the
applicable test, safety and certification requirements as contained in Asyst's
product data management system, unless it has obtained prior written approval
from Asyst for a deviation. Each shipment of Products is subject to Asyst's
quality inspection and testing on Asyst's premises or on Manufacturer's
premises, at Asyst's option and discretion. Manufacturer will ensure that the
outgoing quality level for the Products shall meet or exceed Asyst's defined
Specifications on functional electrical tests, and Asyst's defined
Specifications on inspection, testing and delivery pursuant to Attachment F
("Assembly/Test Requirements"). If
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
14.
any quality inspection and/or test is to be performed or verified on
Manufacturer's premises by Asyst ("SOURCE INSPECTION"), Manufacturer shall
provide Asyst with access to Manufacturer's facilities and reasonable
assistance, at no additional charge, to conduct or verify such Source
Inspections.
9.3 The shipment of rejected Products by Asyst to Manufacturer
shall be at Asyst's expense, and return shipment of Repaired or Replacement
Products shall be at Manufacturer's expense. Manufacturer shall place upon each
repaired Product an identifying xxxx that has been designated by Asyst to
indicate that such Products were repaired by Manufacturer pursuant to Asyst's
written requirements.
9.4 Manufacturer represents and warrants that, as of the
Effective Date, it is certified to comply with ISO 9001 or higher level
standards. At all times during the term of this Agreement, Manufacturer will
maintain its compliance with ISO 9001 or higher level standards. Upon reasonable
written request, Manufacturer shall allow Asyst personnel and representatives
reasonable access to its manufacturing facility and such other places as the
Products may be stored for purposes of inspecting such facility, the equipment
used therein and the Products, both finished and in process of assembly or
manufacture.
9.5 Manufacturer will use commercially reasonable efforts to
participate at an early stage in Asyst's planning cycle, to the extent that
Asyst requests such participation in writing. Without limiting the generality of
the foregoing, such participation may include the joint development of supply
plans with Asyst and the refinement of forecasts.
9.6 Manufacturer will assist Asyst in developing all
system-level qualification and safety agency testing which is applicable to
Products sold to Asyst as provided in the Specifications.
9.7 Manufacturing will implement and maintain recordkeeping
practices consistent with Manufacturer's then-current practices. Upon reasonable
written notice, Asyst shall be allowed to audit, or have an independent third
party audit, Manufacturer's quality records related to services provided to
Asyst under this Agreement.
9.8 All shipping information, including that on invoices,
packing lists, and packing labels will list the country of origin for all
Product supplied, must be in both text and scannable bar code formats and must
comply with the Asyst's directions.
9.9 Manufacturer will use commercially reasonable efforts to
implement all Asyst supply chain initiatives, including any advanced material
planning and engineering change notification process initiatives. If
Manufacturer has reason to believe it may not be able to comply with any such
initiatives, Manufacturer shall immediately notify Asyst and the Parties will
negotiate in good faith to promptly resolve any reasonable objections that
Manufacturer may raise regarding its compliance with any such initiatives.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
15.
9.10 Should Manufacturer become aware of any quality issues,
design or manufacturing defect, or other issues affecting customer satisfaction,
whether Manufacturer or supplier-related, which may impact Manufacturer's
compliance with the manufacture of the Products to the Specifications, then
Manufacturer shall promptly notify Asyst in writing of the nature of such issues
and provide the known technical details. Asyst reserves the right to suspend
delivery of Products in accordance with Section 6.7 until resolution of such
issue.
9.11 Manufacturer shall use its best commercial efforts to
achieve and maintain, at all times, a [*] achievement rate during each calendar
month during the term of this Agreement for the following quality objectives:
9.11.1 "ONTIME DELIVERY": Units of Products are delivered
on-time to Asyst and Asyst's affiliates and subsidiaries as to their requested
location of delivery and requested delivery dates during each calendar month;
9.11.2 "SHIPMENT ACCURACY": Units of Products are properly
packed and packaged in accordance with the Specifications and are complete with
respect to items requested for inclusion by Asyst in each shipment intended for
delivery to a customer; and
9.11.3 "OUT OF BOX QUALITY": Products that are delivered
are capable of being installed and fully and immediately operational using
normal Asyst installation procedures. Asyst will perform measurements of
Manufacturer's achievement of such objectives on a monthly basis and, upon
written request, will provide such findings to Manufacturer.
9.14 Asyst and Aysts's customers may desire access to
Manufacturer's facilities to qualify or review such facilities as plants of
manufacture for the Products. Upon receipt of any such request for access and
subject to the execution of any facility required non-disclosure agreement,
Manufacture will arrange for and permit access to such plants during normal
business hours within a reasonable period after Manufacturer's receipt of such
request.
9.15 During the term of this Agreement, Asyst and Manufacturer
will, unless agreed otherwise, hold daily production review meetings, monthly
operation review meetings and quarterly business review meetings. The venue and
agenda for each of these meetings will be reasonably determined by Asyst.
Detailed records of the outcomes of these meetings will be prepared and
maintained by the Parties throughout the term of this Agreement.
10. Pricing, Transition Payments and Cost Reductions
10.1 Manufacturer's pricing model is set forth in Attachment G
("Pricing Schedule"). The prices shall be in U.S. Dollars and other than customs
duty or clearance charges, shall include all federal, state, municipal, or
government value-added, excise, sales, withholding, transfer, use, occupational
or like taxes now or then in force and effect. All prices shall include the cost
of packaging and labeling in accordance with the Xxxx of Materials. The Parties
shall review such prices on a quarterly basis and shall make any adjustments
necessary to such prices to be competitive with other third party bids and
Manufacturer's own actual manufacturing costs
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
16.
based on the baseline pricing model in Attachment G ("Pricing Schedule") Any
price changes must be agreed upon in writing by the Parties.
10.2 Manufacturer will use its best commercial efforts to
pursue cost improvement opportunities for each and every element of price to
reduce the cost of the Products, including recommending design or process
changes, or new sources which may result in an overall cost reduction. During
the term of this Agreement, each Party agrees to provide adequate resources to
support the qualification of any design or alternate AVL suggestions offered by
the other Party. For a period of [*] days following [*] of any such new sources
and subsequent to [*] of inventory, [*] or [*] changes recommended by
Manufacturer and approved by Asyst, the Parties will [*] any resulting reduction
in cost. Thereafter, Manufacturer shall pass on to Asyst [*] of all such cost
reductions. Notwithstanding anything to the contrary in this Agreement,
Manufacturer shall pass on to Asyst [*] of all cost reductions resulting from
(a) [*] or [*] changes recommended by Asyst, and (b) [*] established solely by
Asyst with any third parties for materials or components included in the
Products, including materials or components consigned by Asyst to Manufacturer
for inclusion in the Products, which [*] will be implemented for that inventory
affected by such [*] or [*] changes or changes in [*].
10.3 Manufacturer will implement and provide under this
Agreement to Asyst and Asyst's affiliates and subsidiaries that purchase
Products under this Agreement an aggregate [*] reduction in the total costs of
manufacture for Products against the baseline pricing model, set forth in
Attachment G ("Pricing Schedule"). However, this cost reduction will not be
applied by Manufacturer to the Existing Component Parts portion that are
included in the Products. The cost reductions will take effect thirty (30) days
after the end of the Transition Period (end of the Transition Period is
estimated to be March 31, 2003). The allocation of such reduction in pricing to
each individual Product will be determined by the end of the Transition Period
taking into consideration the forecasted volumes to achieve the committed
aggregate cost reduction.
10.4 Beyond the initial cost reductions in Section 10.3,
Manufacturer will use its best commercial efforts to obtain the following cost
reductions in Products to be supplied to Asyst and Asyst's affiliates and
subsidiaries hereunder:
10.4.1 [*] for year two (i.e., the year that begins on the
annual anniversary of the Effective Date and ends one (1) year immediately
thereafter) on raw materials and components subject to migration to
Manufacturer's preferred vendor list; and
10.4.2 [*] reduction in assembly hours due to gains in
efficiency upon completion of transition and reasonable period for production
ramp; and
10.4.3 [*] reduction in test hours due to gains in
efficiency upon completion of transition and reasonable period for production
ramp.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
17.
Manufacturer will also continue to drive future [*] after year [*] (i.e., the
period after the [*] of the Effective Date) for [*] and [*] with a target of [*]
per quarter for the remainder of the term of the Agreement.
10.5 A predictive cost model will be established and maintained
by the Parties to determine the pricing for Products that are to be provided to
Asyst and Asyst's affiliates and subsidiaries under this Agreement. Unless
otherwise agreed in writing by authorized representatives of the Parties, the
prices for Products to be supplied by Manufacturer under this Agreement to Asyst
and Asyst's affiliates and subsidiaries shall be equal to the following:
10.5.1 For components and materials, the [*] to
Manufacturer for components and materials [*] plus (i) a [*] [*] on such cost
for components and materials made by Manufacturer, and (ii) a [*] [*] for
components and materials purchased by Manufacturer;
10.5.2 If [*] are not otherwise paid directly by Asyst to
[*] used for the [*] of components and materials to Manufacturer, then, unless
otherwise agreed in writing by the Parties, [*] for the actual and reasonable
[*] incurred by Manufacturer for shipment to Manufacturer of components and
materials to be included in the Products delivered to Asyst and Asyst's
affiliates and subsidiaries under this Agreement;
10.5.3 For assembly and test labor costs:
(i) for manufacture, assembly and test work
performed within the United States of America, [*] per hour for manufacture and
assembly work and [*] per hour for test work,
(ii) for manufacture, assembly and test work
performed within [*] , [*] per hour for manufacture and assembly work and
[*] per hour for test work, and
(iii) for manufacture, assembly and test work
performed within [*] , [*] per hour for manufacture
and assembly work and [*] per hour for test work;
10.5.4 For selling, general and administrative ("SG&A")
expenses, [*] of the amounts determined under Sections 10.5.1, 10.5.2 and
10.5.3; and
10.5.5 For profit to Manufacturer, [*] of the amounts
determined under Sections 10.5.1, 10.5.2, 10.5.3 and 10.5.4.
For each Product to be supplied under this Agreement, the Parties will [*] for
such Product on at least a [*] to understand the anticipated price to Asyst and
to determine whether such [*] . Notwithstanding the foregoing, if (a) during any
[*] [*] period that ends on the [*] immediately following the Effective Date,
the [*] of Products by Asyst and Asyst's affiliates and
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
18.
subsidiaries exceeds [*] for such period, or (b) for any rolling [*][*] period,
a [*] in [*] of Products by Asyst and Asyst's affiliates and subsidiaries
exceeds [*] when determined based on [*] of Products made in the immediately
preceding [*][*] period, then the Parties will [*] in good faith [*] to be made
available by Manufacturer to Asyst and Asyst's affiliates and subsidiaries for
the Products, including a [*] that are set forth in this Agreement for [*] .
Additionally, if the pricing for any Product, which is provided by Manufacturer
to Asyst under this Agreement, is not [*] with other available [*] offered under
terms and conditions, when taken as a whole are similar to those provided by
Manufacturer to Asyst under this Agreement, then Manufacturer acknowledges and
agrees that changes to the [*] will be made to make such [*] .
10.6 Asyst may request for Manufacturer to use certain
logistics suppliers to transport components and materials to Manufacturer. At
Asyst's written request, and only if practicable and feasible, Manufacturer will
use those logistics suppliers that Asyst requests, unless such suppliers are
unable to meet all in respects Manufacturer's delivery requirements. As to the
use of such suppliers, Manufacturer will be responsible to ensure that all
components and materials are delivered in a timely manner from such suppliers to
ensure that there is no disruption in the continuity of delivery of Products to
Asyst under this Agreement.
10.7 On or before the Transfer Date, Manufacturer shall make
"at-will" employment offers to approximately [*] Asyst full-time employees that
were employed immediately before the Transfer Date. [*]. Manufacturer will be
responsible for execution of any [*] . [*] shall make [*] to all such [*] to
[*] on the [*] . Manufacturer will bear and be responsible for [*] that
Manufacturer may incur in connection with a [*] for such [*] with respect to
the [*] . Asyst will reimburse Manufacturer for [*] of such [*] [*] up to a
maximum amount of [*] that are actually incurred and expended by Manufacturer
during the [*] , which is currently contemplated to commence on the [*] and end
no later than [*]. Asyst will reimburse Manufacturer for such [*] [*] as
follows: (i) Asyst will pay Manufacturer an initial payment of up to [*] of [*]
[*] , which are actually [*] , within [*] days after the date of completion of
the [*] provided, however, that Manufacturer has issued to Asyst an invoice for
such [*] [*] and provided all appropriate documentation to Asyst that supports
such [*] , and (ii) Asyst will pay Manufacturer a second payment of up to [*]
for additional [*] [*] , which are actually [*] , through a [*] by Manufacturer
to the [*] to the Products that are set forth in Section [*] , until such [*]
has been fully recovered by Manufacturer. Manufacturer will provide
documentation that is reasonably acceptable to Asyst and details all [*] [*]
which have been actually [*] . Within [*] days after the end of the [*] , an [*]
will be conducted to determine the net difference between the [*] of the [*] [*]
and the related [*] from Asyst through the
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
19.
[*] by Asyst and the benefit of the [*] . If Manufacturer's total [*] [*] are
less than the [*] received from Asyst, then Manufacturer will immediately [*]
Asyst the [*] , and [*] under this Section [*].
10.8 Asyst acknowledges that the [*] noted in Section [*] do
not include certain [*] of up to [*] that may be required [*] during the [*] to
the [*] described in Section [*] if any [*] [*] that pertains to Asyst's [*] is
[*] . If such [*] are required to be [*] by [*] during the [*] solely as a
result of an Asyst requirement to [*] from Asyst's existing [*] to
Manufacturer's [*] prior to the expiration of any [*] that is required to be
given by Manufacturer under the [*] to [*] of Asyst described in Section [*] ,
then [*] will be [*] for such [*] provided, however, that Manufacturer has fully
complied with any reasonable request made by Asyst to Manufacturer to require
Manufacturer to [*] to such [*] of the [*] of the [*] from [*] to [*] .
10.9 Additionally, the Parties acknowledge that [*] may be [*]
to [*] to ensure their [*] with Manufacturer after the [*] . Manufacturer will
advise Asyst of [*] intent to provide any such [*] and provide to Asyst complete
details of the [*] and the [*] . Asyst will review any such requests for a [*] ,
and approve such [*] when and where warranted. Asyst will make a [*] to [*] for
[*] of those [*] that have been [*] by Asyst and [*] up to an maximum limit of
[*].
10.10 If, during the term of this Agreement, Manufacturer sells
or offers to sell any products which are comparable or similar in all material
respects to the Products to any other third party under terms and conditions,
when taken as a whole, provide more favorable financial terms than those offered
to Asyst hereunder, then Manufacturer shall immediately notify Asyst in writing,
and Manufacturer shall immediately adjust the financial terms (including price),
from the date on which such more favorable third party offer or sale was made
available by Manufacturer, to reflect the same more favorable financial terms
for all purchases of Products made by Asyst or any Asyst affiliate or subsidiary
after the date of such third party offer or sale, currently in process or placed
by Asyst or any Asyst affiliate or subsidiary for delivery in the future.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
20.
11. Warranty
11.1 Manufacturer represents and warrants that the Products
shall be free from defects in workmanship and materials and will conform in all
respects to the Specifications for a period of [*] months after the date of
their shipment to a customer of either Asyst or an affiliate or subsidiary of
Asyst. The procedures that Manufacturer and Asyst will follow for repair and
refurbishment are set forth in Attachment H ("Repair and Refurbishment
Procedures"). Asyst may return defective Products to the same Manufacturer
facility from which such Products were originally shipped.
11.2 In the event of field failure of a Product during the
warranty period, the Parties shall immediately work together to conduct a
Product failure analysis. The purpose of the analysis is to identify the nature
of the failure and determine whether it results from components, the
manufacturing process or the Specifications. Manufacturer shall create and
provide to Asyst, upon reasonable request, a written Product failure analysis
report that documents the Parties' findings. If the Parties disagree on any
specific aspect of the cause of a failure, Manufacturer shall document each of
the positions of the Parties in the Product failure analysis report. The Party
responsible for the defect shall, at its own expense, be responsible to correct
any such defect. Any cost that Manufacturer incurs in the performance of its
warranty responsibilities for the Products shall not be included in any amounts
billed to Asyst or any Asyst affiliate or subsidiary for the Products.
11.3 Manufacturer represents and warrants that (i) it has the
right to enter into this Agreement; (ii) there are no prior commitments or other
obligations that prevent Manufacturer and its affiliates and subsidiaries from
fully performing all obligations under this Agreement; (iii) the services to be
provided by Manufacturer and its affiliates and subsidiaries in connection with
the manufacture and sale of Products to Asyst and Asyst's affiliates and
subsidiaries shall be performed in a professional and workmanlike manner by
competent and qualified personnel; (iv) Asyst and Asyst's affiliates and
subsidiaries will receive good and marketable title to each Product free from
liens, claims or encumbrances of any nature; (v) the Products will be free of
all toxic chemicals except to the extent that such use is explicitly set forth
in the Specifications for the Products; and (vi) the compliance by Manufacturer
and its affiliates and subsidiaries with the terms and conditions of this
Agreement will not violate any federal, state or local laws, regulations or
ordinances or any third party agreements.
11.4 In the event that any Product manufactured shall not be in
conformity with the foregoing warranties, Manufacturer shall, at Manufacturer's
sole expense, replace, repair or correct the nonconformity in such Product or,
if such actions are not commercially practicable, then credit or refund, the
purchase price paid under this Agreement for such Product. Asyst agrees to pay a
reasonable screening fee and actually incurred transportation charges for
assemblies submitted for warranty work that are not packed appropriately, do not
duplicate the alleged failure when tested by Manufacturer (i.e., no trouble
found charges), or are to be tested against a later version of test software
provided by Asyst, if any, than was used at the time of manufacture.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
21.
11.5 Manufacturer shall have no liability or responsibility for
any costs, losses or damages actually incurred due to defective or failed
Product claims to the extent that the claims are caused by: (i) the
Manufacturer's compliance with Asyst's supplied Specifications, (ii) inadequate
operating environment, accident, disaster, neglect, abuse or misuse, (iii)
design flaws or design parameters exceeding or violating component
specifications of Asyst, (iv) environmental factors beyond the reasonable
control of Manufacturer or its affiliates or subsidiaries after shipment from
Manufacturer, (v) follow-on handling, processing, or manufacturing of the
Products by a party other than Manufacturer or its affiliates, subsidiaries,
employees, agents or subcontractors after shipment of the Product from
Manufacturer, (vi) repair, attempted repair, modification, or alteration of the
Product by a party other than Manufacturer or its affiliates, subsidiaries,
employees, agents or subcontractors, and (vii) electrostatic discharge damage
which is not caused by Manufacturer or its affiliates, subsidiaries, employees,
agents or subcontractors.
11.6 Manufacturer make NO WARRANTY as to any software that is
supplied for use in the manufacture of the Products. Any such software is
supplied on an "AS IS" basis. Manufacturer and Asyst make NO WARRANTY as to any
prototypes or pre-production units provided to the other.
11.7 Manufacturer provides NO WARRANTY that the Products are
fit for the life support market or to be used in life support systems, critical
care applications, human implantation, commercial aviation, nuclear facilities
or systems or any other applications where product failure could reasonably be
expected to lead to injury to persons, loss of life, or catastrophic property
damage.
11.8 THE WARRANTIES CONTAINED IN SECTIONS 11, 12.4, 14.3 AND
ATTACHMENT D ("EQUIPMENT LOAN AGREEMENT") ARE IN LIEU OF, AND EACH PARTY HEREBY
EXPRESSLY DISCLAIMS AND THE OTHER PARTY HEREBY WAIVES, ANY AND ALL OTHER
REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR ARISING
BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OF
THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR USE.
11.9 [*] will be responsible for and provide to Asyst the [*]
of [*] obtained from its [*] or other [*] for all [*] and services included in
or furnished for the Products. To the extent not prohibited by confidentiality
provisions, [*] shall provide, upon request by Asyst, all relevant information
regarding the third party, scope and terms of all such [*] . [*] shall not
negotiate the [*] of a [*] or [*] to the detriment of Asyst, without the prior
written consent of Asyst. [*] also hereby grants the right to Asyst to enforce
the [*] which are received by [*] from other parties for those components or raw
materials included in the Products that are supplied to Asyst under this
Agreement if [*] fails to do so in a prompt and reasonable manner. Furthermore,
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
22.
wherever possible, [*] shall pass through to Asyst the benefit of all
indemnification coverages obtained from any applicable component vendors.
12. Intellectual Property/Trademarks
12.1 "INTELLECTUAL PROPERTY RIGHTS" means all copyrights
(including the exclusive right to reproduce, prepare derivative works,
distribute, publicly display and publicly perform), patent rights (including
patent applications), trade names, trademarks, service names, service marks,
trade dress, mask-work rights, trade secrets, moral rights, author's rights,
right of publicity, contract and licensing rights, rights in packaging,
goodwill, industrial rights and other intellectual property rights as may exist
now or hereafter come into existence and all renewals and extensions thereof,
regardless of whether any of such rights arise under the laws of the United
States of America and of every other state, country or jurisdiction throughout
the world.
12.2 Excepting any of the pre-existing Intellectual Property
Rights of Manufacturer, and any Intellectual Property Rights or manufacturing or
assembly processes that are independently developed by Manufacturer at any time
without access to or use of any Intellectual Property Rights of Asyst, which
shall be the sole Intellectual Property Rights of Manufacturer, Asyst shall own
and Manufacturer hereby assigns and agrees to assign to Asyst, and cause its
employees, agents and subcontractors to assign to Asyst, every invention
(whether or not patentable), know-how, copyrightable material or information
conceived, developed or reduced to practice or tangible form by Manufacturer in
the performance of this Agreement relating to Products or otherwise incorporated
into the Products that are paid for by Asyst ("DEVELOPMENTS") and all
Intellectual Property Rights therein. To the extent that the Developments and
any Intellectual Property Rights thereto cannot be assigned this Agreement,
Manufacturer hereby grants Asyst a non-exclusive, irrevocable, worldwide, fully
paid-up, royalty-free license to use, copy, modify, perform, display,
distribute, sell, offer to sell, import and make derivative works of such
Developments and the Intellectual Property Rights thereto,and to sublicense
others to do any or all of the foregoing.
12.3 Subject to the terms and conditions of this Agreement,
during the term of this Agreement Asyst grants Manufacturer a non-exclusive,
worldwide, non-transferable, limited right and license under Asyst's
Intellectual Property Rights to use the Developments solely in connection with
the manufacture of Products for distribution to Asyst and Asyst's affiliates and
subsidiaries under this Agreement. Manufacturer agrees to not decompile,
disassemble, or otherwise reverse engineer any of the Developments or Asyst's
Intellectual Property Rights thereto.
12.4 Asyst represents and warrants to its knowledge that it
owns or has the right to license to Manufacturer in accordance with the terms of
this Agreement all proprietary rights in the information provided to
Manufacturer in order to permit Manufacturer to manufacture the Products, and
that Asyst has the unqualified right to make available to Manufacturer material
and other information, including drawings, designs and Specifications.
Additionally, Asyst represents and warrants to its knowledge that it owns or has
the right to license to Manufacturer in accordance with the terms of this
Agreement any software provided by Asyst to Manufacturer
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
23.
hereunder for use by Manufacturer in the manufacture and supply of Products to
Asyst and Asyst's affiliates and subsidiaries. MANUFACTURER'S SOLE AND EXCLUSIVE
REMEDY AND ASYST'S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY UNDER THIS
SECTION 12.4 IS SET FORTH IN SECTION 15.1.
12.5 Subject to the terms and conditions of this Agreement,
during the term of this Agreement Asyst hereby grants to Manufacturer a
worldwide, non-exclusive, nontransferable, revocable, limited right and license,
without the right to sublicense, to use and reproduce the software and any other
documentation or information provided to Manufacturer solely for use in
connection with the manufacture and supply of Products solely for distribution
to Asyst and Asyst's affiliates and subsidiaries.
12.6 Manufacturer will provide commercially reasonable
assistance in the procurement and maintenance, for Asyst's benefit, of patent,
copyright, trademark and other Intellectual Property Rights (excepting
Manufacturer's Intellectual Property Rights) relating to the Developments in any
and all countries. Manufacturer will place on the Products all patent or other
markings of Asyst in a manner that Asyst directs in writing, including the
placement of patent markings on the Products in accordance with Asyst's
then-current processes and procedures. Manufacturer will execute patent,
copyright, trademark or other similar applications and assignments that are
provided by Asyst to Manufacturer in each country identified by Asyst, including
those countries in which a Product to which the foregoing rights relate is
distributed. Manufacturer will obtain for Asyst, as necessary, execution of any
such applications or assignments from any employee who creates such
Developments. If Asyst cannot secure Manufacturer's or its employees' signature
to any lawful or necessary document, Manufacturer appoints Asyst and its duly
authorized officers and agents as Manufacturer's attorney-in-fact for the sole
purpose of executing and filing any such application, assignment or document and
to do all other lawfully permitted acts to further the procurement and
maintenance of patents, copyrights, trademarks and other proprietary rights with
the same legal force and effect as if executed by Manufacturer or its employee.
12.7 "TRADEMARKS" means Asyst's trademarks, trade names,
service marks, service names and logos, if any, as listed in Attachment I (the
"Trademarks"). Manufacturer shall reproduce any designated Trademarks on all
Products manufactured under this Agreement solely in accordance with Asyst's
instructions and policies concerning Asyst's desired use of such Trademarks.
12.7.1 Subject to the terms and conditions of this
Agreement, during the term of this Agreement Asyst hereby grants to Manufacturer
a worldwide, nonexclusive, nontransferable, revocable, limited right and
license, without the right to sublicense, to use the Trademarks solely to place
them on the Products and accompanying materials in accordance with Asyst's
instructions and policies concerning Asyst's desired use of such Trademarks.
Manufacturer shall use the Trademarks in a format and style approved by Asyst
and shall not change the format, style or quality of the Trademarks without
Asyst's prior written approval. Upon request, Manufacturer shall supply Asyst
with samples of any materials distributed by
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
24.
Manufacturer which utilize or include the Trademarks; Asyst may, in its sole
discretion, approve or disapprove of any such use.
12.7.2 Manufacturer shall do nothing inconsistent with
Asyst's ownership rights in the Trademarks, and acknowledges and agrees that
Asyst owns all rights in and to the Trademarks and all such use and goodwill
associated with the Trademarks will inure to the benefit of Asyst. Manufacturer
shall not attempt to register the Trademarks in any jurisdiction. Except as
expressly provided herein, Manufacturer will not use any Trademark or any
trademarks or trade names confusingly similar to any Trademark. Upon request by
Asyst, Manufacturer will immediately cease or modify the use of the Trademarks
in accordance with Asyst's directions. Manufacturer's obligations under this
Section 12.7.2 shall survive the expiration or earlier termination of this
Agreement.
12.8 Manufacturer shall immediately give notice and full
details in writing to Asyst of: (a) any claims or objections that Manufacturer's
use of the Trademarks, Product Technology or other intellectual property in
connection with the manufacture of the Products may or will infringe the
Intellectual Property Rights of a third person known by Manufacturer and (b) any
and all infringement, threatened infringement, limitation, illegal use or misuse
by any person, of the Trademarks, Product Technology or the Intellectual
Property Rights embodied therein which comes to Manufacturer's knowledge.
Manufacturer shall reasonably cooperate with Asyst in connection with the
protection of the Trademarks and Intellectual Property Rights
13. Confidential Information
13.1 For purposes of this Agreement, "CONFIDENTIAL INFORMATION"
shall mean all information (i) identified in written or oral format by the
disclosing Party as confidential, trade secret or proprietary information and,
if disclosed orally, summarized in written format within thirty (30) days of
disclosure, or (ii) the receiving Party knows or has reason to know is
confidential, trade secret or proprietary information of the disclosing Party.
13.2 Notwithstanding the foregoing, "CONFIDENTIAL INFORMATION"
shall not include any information which the receiving Party can show: (i) is now
or subsequently becomes legally and publicly available without breach of this
Agreement by the receiving Party, (ii) was rightfully in the possession of the
receiving Party without any obligation of confidentiality prior to receiving it
from the disclosing Party, (iii) was rightfully obtained by the receiving Party
from a source other than the disclosing Party without any obligation of
confidentiality, or (iv) was developed by or for the receiving Party
independently and without reference to such information that can be shown by
documentary evidence. Each Party agrees not to use such Confidential Information
except in its performance under this Agreement. In addition, the receiving Party
shall treat and protect such information in the same manner as it treats its own
information of like character, but with not less than reasonable care. The
receiving Party agrees to take appropriate measures by instruction and written
agreement prior to disclosure of Confidential Information to its employees and
contractors to prevent unauthorized use or disclosure. Confidential Information
must be returned by the receiving Party upon termination or expiration of this
Agreement.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
25.
13.3 Confidential Information may be disclosed to the extent
necessary to comply with an order of an administrative agency or court of
competent jurisdiction provided, however, that the Party so required to disclose
Confidential Information shall provide prior written notice thereof to the other
Party in sufficient time to enable that Party to seek a protective order or
otherwise prevent such disclosure.
13.4 In the event of a breach of any of the foregoing
provisions, the receiving Party agrees that the harm suffered by the disclosing
Party would not be compensable by monetary damages alone and, accordingly, that
the disclosing Party shall, in addition to other available legal or equitable
remedies, be entitled to an injunction against any unauthorized use or
disclosure.
14. Compliance with Laws
14.1 The Parties acknowledge that some of the Confidential
Information which is furnished to Manufacturer by Asyst hereunder may be subject
to U.S. Export Control Regulations and that Asyst has the obligation to obtain
all necessary licenses that may be required by such Regulations for the export
of any such technical data. Notwithstanding any other provisions herein, Neither
Party will knowingly export, directly or indirectly, any Confidential
Information or any products produced from such Confidential Information to any
countries outside the United States of America in violation of any United States
Export Laws or Regulations.
14.2 The Parties shall comply with the United States Foreign
Corrupt Practices Act in connection with all acts under this Agreement. Without
limiting the generality of the foregoing, The Parties and its employees and
agents shall not offer, pay, promise to pay, give or promise to give any money
or anything of value, directly or through third parties, to any governmental
official, political party, political official, candidate for political office or
to any person, while knowing or having reason to know that all or a portion of
such money or thing of value will be offered, paid, given or promised, directly
or indirectly, for purposes of influencing any act or decision of the foregoing
or inducing the foregoing to use his, her or its influence with a government or
instrumentality thereof to affect or influence any act or decision of such
government or instrumentality.
14.3 Manufacturer warrants that in the performance of work under this
Agreement it has complied and will comply with all applicable national, federal,
state and local laws, regulations and ordinances, now or hereafter enacted.
Manufacturer warrants that in the performance of work under this Agreement it
has and will comply with all national, federal, state and local laws,
regulations and ordinances which regulate any material because it is
radioactive, toxic, hazardous or otherwise a danger to health, reproduction or
the environment. Upon request, Manufacturer will supply to Asyst certificates
certifying compliance with any of the aforementioned laws, regulations and
ordinances as may be applicable to the Products that are to be produced by
Manufacturer for supply to Asyst and Asyst's affiliates and subsidiaries.
15. Indemnification and Insurance
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
26.
15.1 Asyst shall defend, at its expense, and hold Manufacturer
and its affiliates, officers, directors, employees, assigns and successors
harmless from and against any third party actions or claims, and pay all
resulting losses, liabilities, damages, expenses and costs (which includes
reasonable attorneys' fees incurred by Manufacturer in the enforcement of this
indemnity against Asyst if Asyst fails to defend as required by this indemnity),
for such actions and claims: (a) to the extent based on any third party action
or claim alleging infringement of any Intellectual Property Rights of a third
party by (i) the Products manufactured by Manufacturer in compliance with
Asyst's Specifications and supplied by Manufacturer to Asyst or Asyst's
affiliates or subsidiaries under this Agreement) or (ii) any Trademarks or
Product Technology supplied by Asyst and included in or on the Products that are
supplied by Manufacturer to Asyst or Asyst's affiliates or subsidiaries under
this Agreement; and (b) for personal injury (including death) or property
damage, to the extent such injury (including death) or damage was caused by any
negligent, reckless or malicious act or omission of Asyst or its employees
acting within the scope of their employment with Asyst, agents or subcontractors
provided, however, that these indemnifications shall not apply to any claim of
indemnification to the extent that Manufacturer is responsible under Section
15.2 and provided, further, that (x) Asyst is promptly informed in writing by
Manufacturer and furnished with a copy of any notice regarding any such actions
or claims;(y) Asyst is given the sole authority to defend or settle any such
actions or claims, and (z) Manufacturer cooperates and provides all reasonable
information and assistance (at Asyst's expense) which is necessary to defend or
settle any such actions or claims.
15.2 Manufacturer shall defend, at its expense, and hold Asyst
and its affiliates, customers, officers, directors, employees, assigns and
successors harmless from and against any third party actions or claims, and pay
all resulting losses, liabilities, damages, expenses, and costs (which includes
reasonable attorneys' fees incurred by Asyst in the enforcement of this
indemnity against Manufacturer if Manufacturer fails to defend as required by
this indemnity) (a) to the extent based upon any third party action or claim
that Manufacturer's manufacturing process, process technology or methodology
infringes or misappropriates any Intellectual Property Rights of a third party;
or (b) based upon personal injury (including death) or property damage to the
extent that such injury (including death) or damage was caused by any negligent,
reckless or malicious act or omission of Manufacturer or its employees acting
within the scope of their employment with Manufacturer, agents or subcontractors
provided, however, that these indemnifications shall not apply to any claim of
indemnification to the extent that Asyst is responsible under Section 15.1 and
provided, further, that Asyst (x) gives Manufacturer prompt written notice of
any such actions or claims made to Asyst in writing, (y) cooperates with
Manufacturer, at Manufacturer's expense, in the defense of such actions or
claims, and (z) gives Manufacturer the right to control the defense and
settlement of any such actions or claims to the extent covered by the
indemnification provided herein. Manufacturer shall not enter into any
settlement that materially or adversely affects Asyst's rights or interests,
without Asyst's prior written approval.
15.3 Manufacturer shall obtain and maintain, at its own
expense, during the term hereof, the following insurance against claims for
injuries to persons, damages to properly or financial and non-financial loss in
connection with the performance of the work/product hereunder by Manufacturer,
its agents, representatives, employees or subcontractors, as follows:
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
27.
15.3.1 Insurance Services Office Commercial General
Liability coverage (occurrence form CG000l or its equivalent);
15.3.2 Insurance Services Office form number CA 0001 (Ed.
l/87) or its equivalent covering Automobile Liability, code 1 (any auto);
15.3.3 Worker's compensation insurance as required by the
State of California or other jurisdiction where services are to be performed by
Manufacturer with an Employer's liability limit of not less than [*] per
occurrence and the provision of a waiver of subrogation for Asyst and Asyst's
subcontractors;
15.3.4 Employer's Liability Insurance to the extent
required at the place of manufacture in the United States (or other location
where work is to be performed or completed);
15.3.5 Employee Theft policy covering loss of money,
securities and other property with Asyst added as loss payee under this policy;
15.3.6 Errors and omissions liability insurance
appropriate to the activities to be performed by Manufacturer under this
Agreement; and
15.3.7 All Risks Property Insurance which covers (a)
equipment (defined as any equipment owned, leased or used by Manufacturer and
which may be used by Asyst and its subcontractors to perform work or provide
services under this Agreement) and (b) "Manufacturer Property" (defined as
property in the care, custody and/or control of Asyst and its subcontractors
which is owned by Manufacturer, which includes Manufacturer materials in transit
to and from Manufacturer facilities) which (a) provides coverage on a
replacement cost basis, and (b) includes a waiver of subrogation for the benefit
of Asyst and its subcontractors.
All such insurance shall have policy limits no less than:
15.3.8 General Liability: [*] per occurrence for bodily
injury, personal injury and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to this project/location or the
general aggregate limit shall be twice the required occurrence limit.
15.3.9 Automobile Liability: [*] per accident for bodily
injury and property damage.
15.3.10 Employer's Liability: [*] per accident for bodily
injury or disease.
15.4 Manufacturer will maintain insurance on the Products while
in Manufacturer's custody for full replacement cost, and in no event an amount
less than the purchase price charged to Asyst for such Products.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
28.
15.5 The general liability, errors and omissions and automobile
liability policies in Sections 15.3 and 15.4 shall contain, or be endorsed to
contain, the following provisions:
15.5.1 Asyst, its officers, directors, agents and
employees are covered as additional insured as respects: liability arising out
of activities performed by or on behalf of Manufacturer; premises owned,
occupied or used by the Manufacturer; or automobiles owned, leased, hired or
borrowed by Manufacturer or [*] for [*] for Asyst and Asyst's affiliates and
subsidiaries.
15.5.2 [*] shall be [*] as respects Asyst, its officers,
directors, agents and employees. Any [*] maintained by Asyst, its officers,
directors, agents or employees is in excess of [*].
15.6 [*] shall use commercially reasonable efforts to cause its
[*] to endorse each [*] in Sections [*] and [*] to state that [*] shall not be
suspended, voided, canceled, reduced in coverage or in limits except after [*]
prior written notice to Asyst by certified mail, return receipt requested.
15.7 The insurance in Sections 15.3 and 15.4 shall be placed by
Manufacturer with insurers with a current A.M. Best's rating [*], unless
otherwise accepted by Asyst in writing. [*] shall provide [*], effecting the
coverages required hereunder, signed by a person authorized by that insurer to
bind coverage on its behalf in a form reasonably satisfactory to Asyst. All such
[*] shall be provided to Asyst for approval before commencement of performance
hereunder. Manufacturer shall include all [*] as [*] under its policies or shall
furnish [*] and [*] for each [*]. All coverage for [*] is subject to all of the
requirements above.
15.8 Asyst shall obtain and maintain, at its own expense,
during the Transition Period Insurance Services Office Commercial General
Liability coverage (occurrence form CG000l or its equivalent) against claims for
bodily injury to persons (including death), damages to property to the extent
caused by any act or omission of Asyst in connection with work that is performed
by Manufacturer on Asyst's premises. Such insurance shall have policy limits no
less than:
15.8.1 General Liability: [*] per occurrence for bodily
injury, personal injury and property damage. If Commercial General Liability
Insurance or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to this project/location or the
general aggregate limit shall be twice the required occurrence limit;
15.8.2 Business Auto Insurance covering the ownership,
maintenance or use of any owned or non-owned hired automobile with a limit of
not less than [*] per occurrence/annual aggregate for bodily injury, including
death and property damage liability;
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
29.
15.8.3 Worker's compensation insurance as required by the
State of California or other jurisdiction where services are to be performed by
Asyst with an Employer's liability limit of not less than [*] per occurrence and
the provision of a waiver of subrogation for Manufacturer or Manufacturer's
subcontractors;
15.8.4 Employee Theft policy covering loss of money,
securities and other property with Solectron Corporation added as loss payee
under this policy;
15.8.5 Errors and omissions liability insurance
appropriate to the Asyst's activities in connection with Product development,
manufacturing and installation; and
15.8.6 All Risks Property Insurance which covers (a)
equipment (defined as any equipment owned, leased or used by Asyst and which may
be used by Solectron Corporation and its subcontractors to perform work or
provide services under this Agreement) and (b) "Asyst Property" (defined as
property in the care, custody and/or control of Solectron Corporation and its
subcontractors which is owned by Asyst, which includes Asyst materials in
transit to and from Asyst facilities) which (a) provides coverage on a
replacement cost basis, and (b) includes a waiver of subrogation for the benefit
of Manufacturer and its subcontractors.
15.9 The general liability and auto liability policies in
Section 15.8 shall contain, or be endorsed to contain, provisions that state
Solectron Corporation, its officers, directors, agents and employees are covered
as additional insured as respects any liability arising out of or resulting from
activities performed by Asyst during the Transition Period to enable Solectron
Corporation to manufacture Products at Asyst's manufacturing facility.
15.10 [*] shall use commercially reasonable efforts to cause its
[*] to [*] each insurance policy in [*] to state that coverage shall not be
suspended, voided, canceled, reduced in coverage or in limits [*] prior written
notice to [*] by certified mail, return receipt requested.
15.11 The insurance in [*] shall be placed by Asyst with
insurers with a current A.M. Best's rating of [*], unless otherwise accepted by
Manufacturer in writing. [*] shall provide a [*] evidencing the coverages
required hereunder are in full force and effect, signed by a person authorized
by that insurer. Asyst shall include all [*] to [*] as insureds under its
policies or shall furnish separate certificates and endorsements for each [*].
All coverage for [*] is subject to all of the requirements above.
15.12 [*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
30.
[*]
15.13 The existence and effect of the insurance policies set
forth in Sections 15.3, 15.4, 15.5, 15.6 and 15.7 shall not serve as a
limitation on Manufacturer's potential liability to Asyst and its employees,
agents and subcontractors under this Agreement or otherwise. The existence and
effect of the insurance policies set forth in Sections 15.8, 15.9, 15.10 and
15.11 shall not serve as a limitation on Asyst's potential liability to
Manufacturer and its employees, agents and subcontractors under this Agreement
or otherwise.
16. Limitations of Liability
16.1 EXCEPT FOR BREACHES OR VIOLATIONS OF SECTIONS 2, 12 AND
13, OR INDEMNITY LIABILITIES ARISING UNDER SECTION 15, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
INCIDENTAL OR PUNITIVE DAMAGES INCLUDING LOSS OF USE, REVENUES OR PROFITS,
INTERRUPTION OF BUSINESS OR CLAIMS AGAINST EITHER PARTY OR ITS CUSTOMERS BY ANY
THIRD PARTY, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
16.2 EXCEPT FOR [*] OR [*] OF SECTIONS , [*], [*] AND [*], OR
[*] ARISING UNDER SECTION [*], OR ANY [*] OR [*], IN NO EVENT WILL EITHER
PARTY'S [*] UNDER THIS AGREEMENT FOR ALL CLAIMS, OF WHATEVER NATURE, EXCEED THE
GREATER OF (A) THE [*] PAID BY ASYST TO MANUFACTURER OR (B) [*]. THIS LIMITATION
IS [*] FOR ALL CLAIMS HOWSOEVER ARISING WITHIN A [*] PERIOD, AND THIS LIMITATION
SHALL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR
ESSENTIAL PURPOSE.
16.3 MANUFACTURER WILL MANUFACTURE THE PRODUCTS IN CONFORMANCE
WITH THE SPECIFICATIONS PROVIDED BY ASYST. MANUFACTURER SHALL NOT BE LIABLE FOR
NOR ENSURE THE TECHNICAL ADEQUACY OF THE DESIGN OF THE PRODUCTS; NOR SHALL
MANUFACTURER BE LIABLE FOR THE SAFETY OR REGULATORY COMPLIANCE OF THE DESIGN OF
THE PRODUCTS WITH ANY APPLICABLE STANDARDS. SHOULD THE DESIGN FOR THE PRODUCTS
FAIL TO MEET THE APPLICABLE APPROVALS, STANDARDS OR REGULATIONS ("THE
QUALIFICATIONS"), MANUFACTURER MAY TEMPORARILY
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
31.
CEASE PRODUCTION UNTIL MANUFACTURER IMPLEMENTS REQUIRED CHANGES TO THE DESIGN OF
THE PRODUCTS TO ENSURE THAT APPLICABLE QUALIFICATIONS ARE MET. ASYST IS
RESPONSIBLE FOR OBTAINING ALL REQUIRED APPROVALS RELATIVE TO ANY CHANGES
REQUIRED TO THE DESIGN OF THE PRODUCTS AND WILL BE RESPONSIBLE FOR ALL COSTS
THAT ASYST INCURS THAT ARE ATTRIBUTABLE TO SUCH REQUIREMENTS.
17. Term and Termination
17.1 This Agreement becomes effective on the Effective Date
and, unless terminated sooner in accordance with Section 17.2, 17.3, 17.4, 17.5
or 17.6, shall remain in effect for a period of [*] thereafter. The term of this
Agreement will automatically renew for successive one [*] periods unless either
Party provides written notice to the other Party [*] prior to the end of the
then-current term of this Agreement of its intent not to renew the Agreement.
17.2 A Party may terminate immediately this Agreement if the
other Party is in material default of any obligation hereunder and has not cured
such default within [*] days after written notice thereof by the non-defaulting
Party, or provided an acceptable plan that has been approved in writing by the
other Party to cure such default within an acceptable period of time.
17.3 A Party may terminate this Agreement upon [*] days written
notice if the other Party is (i) the subject of a petition for relief under any
bankruptcy, insolvency, or debtor's relief law (which for an involuntary
petition is not dismissed within [*] days), (ii) is liquidated or dissolved,
(iii) makes an assignment for the benefit of creditors, or (iv) has a receiver
appointed for all or a substantial portion of its assets.
17.4 Asyst may terminate immediately this Agreement upon
written notice to Manufacturer if Manufacturer is the subject of any: (i) a
consolidation or merger of Manufacturer with or into another entity or other
reorganization, in which the holders of Manufacturer's voting interests
immediately before such consolidation, merger, or reorganization do not
immediately after such consolidation, merger, or reorganization retain a
majority of the voting interests of the surviving entity or a majority of the
voting interests of an entity that owns or controls, directly or indirectly, the
surviving entity; (ii) purchase or acquisition by an acquiring party or group in
one or more of a series of related transactions of a controlling interest in
Manufacturer; or (iii) sale of all or substantially all of Manufacturer's assets
that apply to this Agreement (each individually a "CHANGE IN CONTROL").
17.5 Asyst may terminate immediately this Agreement upon
written notice to Manufacturer if Manufacturer fails to provide Products to
Asyst due to a force majeure event that continues for [*] days.
17.6 If (i) Asyst does not purchase Products from Manufacturer
in an aggregate amount of [*] during any preceding [*] period (the "MINIMUM
VOLUME") and (ii) Manufacturer informs Asyst in writing pursuant to Section 19.2
of the existence and amount of a shortfall in such Minimum Volume within [*]
days after such applicable [*] period, then Manufacturer may
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
32.
terminate this Agreement upon [*] days written notice to Asyst provided,
however, that Manufacturer will not exercise this right of termination if Asyst
purchases Products from Manufacturer in the amount of any shortfall in such
Minimum Volume within [*] days after the date on which Manufacturer notifies
Asyst in writing of such shortfall.
17.7 Asyst shall not be liable to Manufacturer for any damages,
liabilities, costs, or expenses that result solely from the expiration or
earlier termination of this Agreement as permitted by its terms. In addition,
Manufacturer shall not be entitled to any compensation, damages or payments in
respect to goodwill that has been established or for any damages on account of
prospective or anticipated profits, and shall not be entitled to reimbursement
in any amount for any unused capacity, training, advertising, or market
development, due solely to the expiration or earlier termination of this
Agreement.
17.8 Except in the event of a termination of this Agreement by
Manufacturer pursuant to Section 17.2 or 17.3, the expiration or earlier
termination of this Agreement shall not affect or impair the rights and
obligations of either Party under any purchase orders outstanding prior to such
termination or expiration. The expiration or earlier termination of the
Agreement shall not relieve any Party of any other obligation or liability
accrued hereunder or thereunder prior to such expiration or earlier termination.
Upon the effective date of the expiration or earlier termination of this
Agreement, Manufacturer shall take the following actions as soon as commercially
practicable upon being requested in writing to do so by Asyst: (i) return all
equipment and test tools loaned from Asyst; (ii) return all copies of Asyst
supplied documentation, Confidential Information and software; and (iii)
discontinue immediately the use of any and all Asyst Intellectual Property
Rights that has been licensed under this Agreement to Manufacturer. Upon written
request by Asyst, Manufacturer shall provide promptly to Asyst a written
certification from an officer of Manufacturer as to its compliance with the
foregoing provisions.
17.9 The rights and obligations of the Parties contained in
those parts of this Agreement that by their nature transcend the expiration or
earlier termination of this Agreement shall survive and continue after such
expiration or earlier termination and shall bind the Parties and their
respective permitted successors and assigns. Specifically, the provisions of
Sections 4 (Excess Material), 5 (Payment Terms and Audit Rights), 10 (Pricing,
Transition Payments and Cost Reductions) to the extent applicable, 11
(Warranty), 12 (Intellectual Property/Trademarks) (excluding 12.3, 12.5, and
12.7.1), 13 (Confidential Information), 15 (Indemnification and Insurance)
(excluding 15.3 through 15.11), 16 (Limitations of Liability), 17.7, 17.8, 17.9,
19 (Miscellaneous) shall survive and continue after the effective date of the
expiration or termination of this Agreement and shall bind the Parties and their
respective permitted successors and assigns.
18. Exclusivity for Products
18.1 Subject to the terms of Section 18.2, during the term of
this Agreement, Asyst shall purchase [*] of its requirements for Products from
Manufacturer, unless Manufacturer
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
33.
waives such obligation or is unable to fulfill in all respects Asyst's
requirements under this Agreement for Products.
18.2 Reservations
(a) The Parties acknowledge and agree that Asyst's
obligations set forth in Section 18.1 [*]:
(i) [*] other than those Products that are in
the process of being [*] by Asyst as of the [*] and are specifically identified
on [*];
(ii) [*] that are [*] by parties other than
Manufacturer, and [*] by Asyst or any of Asyst's affiliates or subsidiaries
within the Transition Period;
(iii) [*] that are [*] by parties other than
Manufacturer, and [*] by Asyst or any of Asyst's affiliates or subsidiaries at
any time during the [*] period before the effective date of expiration or
earlier termination of this Agreement;
(iv) any [*] activities performed by Asyst or any
of Asyst's affiliates or subsidiaries for the Products after completion of final
assembly and test processes by Manufacturer;
(v) any [*] of components or other materials
made by Asyst or any of Asyst's affiliates that are (1) [*] to Manufacturer for
use or inclusion in the Products, or (2) [*] in connection with the [*] of any
service or support obligations in connection with the Products; and
(vi) any [*] or [*] products that are developed
based on the Products identified on [*].
(b) Asyst's obligations set forth above in Section 18.1
are expressly conditioned upon the requirements set forth below in this Section
18.2(b). If Manufacturer fails to meet any of these requirements, Asyst shall be
entitled to purchase the affected Products thereafter from any other Party, and
Asyst shall have no further obligations under Section 18.1 for the remainder of
the term of this Agreement.
(i) Manufacturer manufactures and delivers to
Asyst Products that conform to Specifications, and meet all of the quality
standards imposed under this Agreement;
(ii) The [*] offered and provided by Manufacturer
to Asyst under this Agreement for the Products remains [*] with [*] that is
offered by any [*] to Asyst for any Product family;
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
34.
(iii) Manufacturer fulfills and delivers in a
timely manner to Asyst substantially all of the Products ordered under purchase
orders that are submitted by Asyst within established leadtimes for the
Products;
(iv) Manufacturer fulfills its warranty, quality
and support obligations to Asyst for the Products that Asyst acquires; and
(v) Manufacturer's achievement of the quality
objectives described in Section 9.11 for each of the Products is not less than
[*] of Asyst's actual achievement of such objectives during the [*]-month and
[*]-month periods immediately preceding the Effective Date.
(c) Asyst's obligations set forth in Section 18.1 are
also expressly conditioned upon the requirements set forth below in this Section
18.2(c). If Manufacturer fails to meet any of these requirements, then Asyst
shall be entitled to purchase thereafter any or all of the Products from any
other Party, and Asyst shall have no further obligations under this Section 18.1
for the remainder of the term of this Agreement;
(i) Manufacturer is not in material default of
any obligation under this Agreement that is not described in Section 18.2(b);
(ii) Manufacturer is not the subject of a
petition for relief under any bankruptcy, insolvency, or debtor's relief law,
and is not liquidated or dissolved, and does not make an assignment for the
benefit of creditors, and does not have a receiver appointed for all or a
substantial portion of Manufacturer's assets;
(iii) Manufacturer is not the subject of any
Change in Control event;
(iv) Manufacturer is not the subject of a force
majeure event, as described in Section 19.5, which results in a failure by
Manufacturer to supply Products in accordance with Asyst's requested delivery
dates or any warranty services for Products; and
(v) Manufacturer and Asyst reach agreement on
and amend in writing this Agreement to reflect the procedures and terms and
conditions that will apply to out of warranty service for the Products that is
to be performed by Manufacturer, including (1) the maintenance and delivery of
spare parts by Manufacturer to Asyst and Asyst's affiliates and subsidiaries,
(2) the quantities of spare parts to be produced and maintained by Manufacturer,
(3) the pricing for out of warranty service such spares, applicable service
levels, (4) the warranty period for such spare parts, and (5) the delivery
logistics for spares, within a period of [*] days after the Effective Date
provided, however, that such period may be temporarily extended upon mutual
written agreement of the Parties.
18.3 Notwithstanding anything to the contrary, Manufacturer
acknowledges and agrees that Asyst is not required to purchase any minimum
quantities or units of Products. The preceding sentence shall, however, not
affect any commitments for purchases of Products made by Asyst under any binding
purchase orders that have been issued pursuant to Section 3.1.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
35.
Manufacturer further acknowledges and agrees that Asyst does not make any
representations or warranties as to the future success of the Products, or as to
the volume of any purchases that may be made under this Agreement.
19. Miscellaneous
19.1 Assignment. Neither Party shall delegate, assign or
transfer its rights or obligations under this Agreement, whether in whole or in
part, without the written consent of the other Party, which consent may or may
not be given. Notwithstanding the foregoing, Asyst may delegate, assign or
transfer its rights or obligations under this Agreement, in whole or part, to
(a) any affiliate or subsidiary of Asyst that meets the reasonable credit
requirements of Manufacturer, or (b) in connection with a Change in Control
transaction that (i) involves Asyst or an affiliate of Asyst and a successor
entity that meets the reasonable credit requirements of Manufacturer, and (ii)
does not involve a direct competitor to Manufacturer. Any attempted delegation,
assignment or transfer in violation of the foregoing provisions shall be null
and void. The Agreement shall be binding on the Parties and their respective
permitted successors and assigns.
19.2 Notices. All notices, requests, demands, and other
communications provided for herein shall be in writing and in English and sent
by registered or certified mail, postage prepaid, to the receiving Party as set
forth part in this Agreement or to any other address that the receiving Party
may have provided to the sending Party in writing. When feasible, any such
notice, request, demand or other communication shall also be transmitted by
facsimile as follows or to such other facsimile number as provided by the
receiving Party in writing. Written notices to shall be sent to:
For Manufacturer: For Asyst:
Solectron Corporation Asyst Technologies, Inc.
Attn: Corporate Legal Department Attn: Senior Vice President,
Xxxx. 0, 000 Xxxxxxxxx Xxxxx Manufacturing
Xxxxxxxx, Xxxxxxxxxx 00000 48761 Kato Road
Fax: (000) 000-0000 Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
With a copy sent to: With a copy sent to:
Solectron Corporation Asyst Technologies, Inc.
Attn: Contracts Coordinator Attn: Legal Department
Xxxx. 0, 000 Xxxxxxxxx Xxxxx 00000 Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Any notice, request, demand or other communication sent by
facsimile will be deemed to have been received on the day it is sent. Any
notice, request, demand or other communication sent by registered or certified
mail will be deemed to have been received on the third (3rd) business day after
its date of posting, unless such it is sent by facsimile prior to such third
(3rd) business day.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
36.
19.3 Independent Contractors. The Parties to this Agreement are
independent contractors, and no agency, partnership, joint venture or
employee-employer relationship is intended or created by this Agreement. Neither
Party has the authority to contract for or bind the other in any manner
whatsoever. This agreement confers no rights upon either Party except those
rights expressly granted herein.
19.4 Governing Law; Venue. This Agreement shall be construed in
accordance with and all disputes hereunder shall be governed by the laws of the
State of California excluding any choice of law provisions that would result in
the application of the laws of some other state. The Superior Court of Santa
Xxxxx County and/or the United States District Court for the Northern District
of California shall have exclusive jurisdiction and venue over all controversies
in connection herewith. The United Nations Convention on Contracts for the
International Sale of Goods is specifically excluded from application to this
Agreement.
19.5 Force Majeure. Neither Party shall be liable for any
failure or delay in its performance under this Agreement due to acts of God,
acts of civil or military authority, fires, floods, earthquakes, riots, wars,
terrorism or any other cause beyond the reasonable control of the delayed Party
provided that the delayed Party: (i) gives the other Party written notice of
such cause immediately upon discovery of the event; and (ii) uses its reasonable
efforts to remedy such delay in its performance.
19.6 Counterparts. This Agreement may be executed in any number
of counterparts, each of which when executed and delivered shall be deemed to be
an original and all of which taken together shall constitute one and the same
instrument. If this Agreement is executed in counterparts, no signatory hereto
shall be bound until both Parties named below have duly executed or caused to be
executed a counterpart of this Agreement.
19.7 Severability. The provisions of this Agreement are
declared to be severable. In the event that any provision contained in this
Agreement shall be held to be unenforceable or invalid, the remaining provisions
shall be given full effect, and the Parties agree to negotiate, in good faith, a
substitute valid provision which most nearly approximates the Parties' intent.
19.8. Waiver. Any express waiver or failure to exercise promptly
any right under this Agreement will not constitute a continuing waiver or any
expectation on non-enforcement.
19.9 Construction. The headings and titles of this Agreement
are for convenience only and will not in any way affect the interpretation of
any section or of the Agreement itself. As used in this Agreement, the word
"including" means "including but not limited to." Each Party represents that it
has had an opportunity to participate in the preparation of this Agreement, and
any rule of construction to the effect that ambiguities are to be resolved
against the drafting Party shall not be applied in connection with the
construction or interpretation of this Agreement. For the purposes of this
Agreement, the word `will" shall be equivalent to "shall," both of which
describe an act or forebearance which is mandatory under
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
37.
this Agreement. The word "may" describes an act or forebearance which is
optional under this Agreement. The meaning for those words that are highlighted
in bold print within quotation marks ("") within this Agreement or otherwise set
forth in Attachment Q ("Defined Terms") shall have the same meaning when used
elsewhere within this Agreement.
19.10 Attorney's Fees. In the event of litigation arising out of
this Agreement or its enforcement by either Party, the prevailing Party shall be
entitled to recover as part of any judgement, reasonable attorney's fees and
court costs.
19.11 Publicity. Neither Party shall publicize or disclose the
existence of the relationship of the Parties arising out of or the terms and
conditions of this Agreement to anyone other than its attorneys, lenders or
other professional advisors that are bound by confidentiality obligations,
except (a) pursuant to a mutually approved press release or as otherwise
approved by the other Party in writing; (b) in connection with a contemplated
financing, public offering or acquisition of such Party (provided that any third
party to whom the terms of this Agreement are to be disclosed signs a
confidentiality agreement reasonably satisfactory to the other Party hereto
before such disclosure is made); and (c) as may be required by law or legal
process (provided that the Party required to make such disclosure cooperates
with the other Party in seeking confidential treatment or otherwise seeking to
limit or contest such mandatory disclosure in any lawful manner). Manufacturer
hereby expressly consents to (i) the issuance of an initial press release by
Asyst that acknowledges the existence and nature of and certain terms of this
Agreement subject to Manufacturer's right of prior review and approval of the
content of such press release, which approval will not be unreasonably withheld,
delayed or conditioned by Manufacturer, and (ii) the public disclosure by Asyst
and Asyst's affiliates and subsidiaries to third parties of the existence and
broad terms of this Agreement provided that, unless otherwise agreed in writing
by the Parties, such disclosures are limited in scope to the existence and
nature of this Agreement, the Agreement's [*]-year term, and the specific
production facilities of Manufacturing that are to be used after the Transition
Period.
19.12 Affiliates
19.12.1 Solectron Corporation shall be jointly and
severally liable for all activites conducted under this Agreement by its
subsidiaries and affiliates, which includes Solectron Technology Singapore Ltd.,
Solectron Technology Sdn Bhd, Solectron Netherlands BV and any other Offshore
Business Headquarters.
19.12.2 The affiliates and subsidiaries of Asyst shall
have the right to issue purchase orders to Manufacturer for the fulfillment of
Products under this Agreement. Upon receipt thereof, Manufacturer shall fulfill
such purchase orders under the same procurement terms and conditions of this
Agreement as if each such purchaser has submitted such purchase orders in the
name of Asyst. Manufacturer shall invoice and look to such affiliates and
subsidiaries for payment for any such purchases. All purchases made by any such
affiliates and subsidiaries of Asyst shall be aggregated for the purpose of
determining pricing for Products under this Agreement.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
38.
19.12.3 Asyst shall be jointly and severally liable for
all activities conducted under this Agreement by such subsidiaries and
affiliates. If any such affiliates or subsidiaries of Asyst fail to pay any
amount due on a timely basis, Manufacturer shall notify Asyst in writing and
Asyst will be responsible for payment of such amount due.
19.13 Order of Precedence. The base terms of this Agreement and
the Attachments will be construed and interpreted together to accomplish the
intended purposes of this Agreement. In the event of a conflict or inconsistency
between the base provisions of this Agreement and those of the Attachments, the
base provisions of this Agreement shall prevail and govern over those provisions
in any Attachments. Notwithstanding the foregoing, the pricing methodologies set
forth in Attachment G ("Pricing Schedule") shall prevail and govern over any
inconsistent pricing methodologies in the base terms of this Agreement if they
yield a lower purchase cost to Asyst for Products that may be purchased under
this Agreement.
19.14 Third Party Beneficiaries. Unless otherwise expressly
provided, no provisions of this Agreement are intended or shall be construed to
confer upon or give to any person or entity other than Asyst and Asyst's
affiliates and subsidiaries any rights, remedies or other benefits under or by
reason of this Agreement.
19.15 Modification. No alteration, amendment or modification to
any term and condition of this Agreement shall be valid or binding on either
Party unless the same shall have been mutually assented to in writing by both
Parties.
20. Dispute Resolution
20.1 In the spirit of continued cooperation, the Parties intend
to and hereby establish the following dispute resolution procedure to be
utilized in the unlikely event a dispute should arise out of or concerning the
performance of this Agreement.
20.2 Subject to the provisions of Section 20.4, it is the
intent of the Parties that any dispute be resolved informally and promptly
through good faith negotiation between Manufacturer and Asyst. Either Party may
initiate negotiation proceedings by written notice to the other Party setting
forth the particulars of the dispute. The Parties agree to meet or confer in
good faith to jointly define the scope and a method to remedy the dispute. If
these proceedings do not promptly produce a resolution, then either Party may
choose to escalate the problem to senior management.
20.3 Should any disputes remain between the Parties after
completion of the resolution process set forth above in Section 20.2, or in any
event more than [*] days have passed following a Party's receipt of an initial
written notice of dispute from the other Party, whichever occurs first, then
either Party may, by written notice to the other Party, request that the matter
be submitted for non-binding mediation with an independent mediator agreed to by
the Parties. Such mediator will be chosen by the Parties within [*] days after
written notice by either Party to the other demanding mediation. Neither Party
shall unreasonably withhold, delay or condition its consent to the selection of
a mediator. Each Party will bear its own attorney's fees and other
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
39.
costs and expenses of the mediation, and each Party will equally share the cost
of the mediator's fees. If the matter is not resolved by mediation within [*]
days of the initial written request for mediation, then the matter then may be
submitted to the appropriate court of law for a determination.
20.4 Notwithstanding anything to the contrary in this Section
20, each Party shall have the right to seek and obtain at any time, without
first attempting to resolve any dispute through non-binding mediation with the
other Party (a) temporary or permanent equitable or injunctive relief with
respect to any matter; or (b) relief to to enforce any of its Intellectual
Property Rights. Additionally, the foregoing provisions in this Section 20 shall
not serve to limit, restrict or prevent either Party from exercising any right
of termination that is possesses under this Agreement, or Asyst from obtaining
Products from other sources in the event that Manufacturer fails to meet any of
the requirements set forth in Section 18.2(b) or otherwise fails to fulfill in
all respects Asyst's requirements under this Agreement for Products.
21. Business Continuity Plan. Upon request by Asyst, Manufacturer
agrees to provide to Asyst documented evidence of a business continuity plan for
the manufacture and delivery of the Products to assure Manufacturer's capability
to provide the Products in the agreed upon timeframe after an event which may
materially and adversely affect Manufacturer's ability to deliver Products to
Manufacturer as scheduled. Such event may include one or more of the following:
(i) Manufacturer system component failures (including hard disk failure,
computer virus, and local area network outages); (ii) natural or man-made
disasters (including fire, flood, earthquake, bombing, sabotage, and vandalism);
(iii) any work stoppages of any kind; and (iv) any failure of a Manufacturer
subcontractor to provide materials. This plan will also include development of
alternate sourcing strategies for materials; redirection of Product manufacture,
including work in progress and finished goods to another Manufacturer
location/facility (subject to qualification by Asyst) A copy of Manufacturer's
current business continuity plan for the Products, as it exists as of the
Effective Date, is attached to this Agreement as Attachment J ("Business
Continuity Plan"). Upon written approval of Manufacturer which shall not be
unreasonably withheld, delayed or conditioned, Asyst may provide a copy of such
plan to its customers. In no event shall Manufacturer increase any Product costs
under this Agreement as a result of business continuity plans or as a result of
the implementation of such.
22. Entire Agreement. This Agreement includes the below-listed
Attachments and constitutes the entire agreement between Manufacturer and Asyst
relating to its subject matter hereof. It supersedes all prior or
contemporaneous oral or written communications, proposals, conditions,
representations and warranties and prevails over any conflicting or additional
terms or communications between the Parties relating to its subject matter
during the term of this Agreement.
Attachment A: Products;
Attachment B: Product Specifications;
Attachment C: Long Lead Time Components;
Attachment D: Equipment Loan Agreement;
Attachment E: Test and Tooling Equipment;
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
40.
Attachment F: Assembly/Test Requirements;
Attachment G: Pricing Schedule;
Attachment G-1: Asyst Baseline Costs;
Attachment H: Repair and Refurbishment Procedures;
Attachment I: Asyst Trademarts;
Attachment J: Business Continuity Plan;
Attachment K: List of Existing Component Parts;
Attachment L: Supplier Quality Requirements;
Attachment M: B2B Messaging:
Attachment N: Products for which Exclusivity applies;
Attachment O: Transition Plan;
Attachment P: Development and Engineering Change Requirements; and
Attachment Q: Defined Terms.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
41.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed
by their respective, duly authorized representative, as of the day and year
first above written.
SOLECTRON CORPORATION ASYST TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxx
------------------------------ ------------------------------
Print Name: Xxxx Xxxxxxxxx Print Name: Xxxx Xxxx
---------------------- ----------------------
Title: Senior Vice President Title: Senior Vice President
and President SSG of Manufacturing Operations
--------------------------- ---------------------------
Date Signed: September 5, 2002 Date Signed: September 5, 2002
--------------------- ---------------------
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
42.
ATTACHMENT A
PRODUCTS
Products:
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
43.
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
44.
ATTACHMENT B
PRODUCT SPECIFICATIONS
All documents, drawings, technical publications, performance specifications, and
other Asyst-supplied document found in Asyst Technologies, Inc. [*] or otherwise
available from Asyst that spell out all of the [*] of the Products in Attachment
A ("Products"). Upon request by Manufacturer, access to such items will be made
available to Manufacturer by Asyst. Where possible, such access will be provided
based on part number and current engineering documentation revision levels.
Manufacturer acknowledges that prior to the Effective Date, it has had the
opportunity to obtain and review all such Specifications.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
45.
ATTACHMENT C
LONG LEAD TIME COMPONENTS
STANDARD
COST ON
PRODUCT PART PART EFFECTIVE LEADTIME
LINE DESCRIPTION NO DESCRIPTION DATE IN DAYS THIRD PARTY SUPPLIER
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
46.
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
47.
ATTACHMENT D
EQUIPMENT LOAN AGREEMENT
THIS EQUIPMENT LOAN AGREEMENT ("LOAN AGREEMENT") is made effective as of
the Effective Date of the Manufacturing Agreement, as defined below, and is by
and between Asyst Technologies, Inc. ("ASYST"), having a principal place of
business at 00000 Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxx, 00000 XXX and Solectron
Corporation ("MANUFACTURER"), having a principal place of business at 000
Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000.
In consideration of the shipment by Asyst of the Equipment referred to below and
receipt thereof by Manufacturer, the Parties agree that the terms and conditions
below shall govern the loan of the Asyst Products, Tooling and/or Test Equipment
listed on the attached Equipment Schedule ("EQUIPMENT") by Asyst to
Manufacturer.
1. Asyst agrees to deliver to Manufacturer the Equipment for the
period commencing upon [*] and terminating upon [*] by and between Manufacturer
and Asyst (the "MANUFACTURING AGREEMENT") (the "LOAN PERIOD"). Manufacturer
shall utilize the Equipment in accordance with the terms and conditions of this
Loan Agreement solely for purpose of performing its obligations under the
Manufacturing Agreement.
2. Delivery of all Equipment shall be made F.O.B. Asyst's
manufacturing facility. Risk of loss of, or damage to, the Equipment shall pass
to Manufacturer upon Asyst's delivery of Equipment to common carrier and shall
remain with Manufacturer until the Equipment is returned to Asyst. In no event
will Manufacturer's liability for loss or damage to Equipment exceed the
replacement value for such Equipment. Title to and ownership of the Equipment
are and shall at all times remain with Asyst. Manufacturer shall not perform any
act inconsistent with Asyst's title to and ownership of the Equipment. All
software, documentation or any information disclosed pursuant to the terms of
this Loan Agreement are confidential and proprietary to Asyst or its licensors
and shall not be reproduced or copied by Manufacturer except as authorized
herein, and Manufacturer shall not use the software, documentation, Equipment or
any information disclosed hereunder except as expressly authorized herein. In no
event, whether expressly, by implication or otherwise, are any Asyst proprietary
rights granted hereunder as to or related to the Equipment or to any other Asyst
products or any enhancements or modifications. Manufacturer acknowledges that
any unauthorized use or disclosure of any of such information would seriously
harm Asyst's competitive position. Nothing herein shall be construed as granted
Manufacturer a license under any patent, patent application, trade secret,
trademark, or copyright which Asyst may have or obtain relating to the Equipment
or Asyst's other products, whether announced or proposed.
3. During the term of the Loan Period, Asyst grants to Manufacturer
a worldwide, nonexclusive, nontransferable, revocable, limited license, without
the right to sublicense, to use the object form of the software included with
the Equipment only as expressly authorized in Section 1 of this Loan Agreement
and in the Manufacturing Agreement. Manufacturer agrees that Manufacturer will
not pledge, lease, rent, or share Manufacturer's rights under this Loan
Agreement, and that Manufacturer will not, without Asyst's prior written
consent, assign or
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
48.
transfer Manufacturer's rights hereunder. Manufacturer agrees that Manufacturer
may not decompile, disassemble, reverse engineer, modify, or otherwise translate
the software or permit a third party to do so and that Manufacturer shall not
make the software available to any other third party, or to create works
derivative of the software, without Asyst's express written consent.
Manufacturer may make one copy of the software per manufacturing location and
the user documentation for backup purposes. Any such copies of the software or
the documentation shall include Asyst's copyright and other proprietary notices.
Except as authorized under this paragraph, no copies of the software or any
portions thereof may be made by Manufacturer or any person under Manufacturer's
authority or control.
4. Manufacturer is responsible for installation and deinstallation
of the Equipment. Asyst agrees to provide reasonable installation and
deinstallation support. The Equipment shall at all times remain at the location
specified on the attached Equipment Schedule.
5. At the expiration of the Loan Period (unless earlier terminated)
the Equipment and all related software, documentation, and copies thereof shall
be returned to Asyst in the same condition as delivered, normal wear and tear
excepted. Manufacturer shall pay for all costs of Equipment repair and/or
refurbishment beyond normal wear and tear resulting from damage caused by
Manufacturer, but no event to exceed the replacement value of the Equipment. No
modifications and/or additions shall be made to the-Equipment by Manufacturer
without Asyst`s prior written approval.
6. Asyst represents and warrants to its knowledge that the Equipment
will perform its intended function. Asyst accepts no responsibility to maintain
the Equipment, except for agreed to calibration costs. ASYST MAKES NO OTHER
EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE. ASYST
SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, POSSESSION, USE OR
OPERATION OF THE EQUIPMENT.
7. In the event Manufacturer neglects or fails to perform any of its
obligations under this Loan Agreement and such default is not corrected to
Asyst's satisfaction within [*] days of receipt of Asyst's notice of such
default, then this Loan Agreement may be immediately terminated by Asyst. If the
Equipment becomes, or in Asyst's opinion likely to become, the subject of an
intellectual property infringement claim, this Loan Agreement shall immediately
terminate and Asyst, at its own cost and expense will remove the Equipment and
neither Party shall have any further liability to the other under this Loan
Agreement or otherwise, except that any delivery dates for Products may be
altered accordingly if such delivery is affected by such return of Equipment.
8. This Loan Agreement and rights and duties under it are not
assignable or delegatable. Any such attempted assignment or delegation shall
automatically be null and void. This Loan Agreement supersedes all prior
agreements concerning the subject matter herein and may not be changed or
modified except by a written communication signed by both Parties. This Loan
Agreement constitutes the entire agreement governing the Equipment specified
herein
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
49.
between Asyst and Manufacturer and may not be modified or amended other than by
a written instrument executed by both Parties. This Loan Agreement shall be
governed by the laws of the State of California, USA, excluding any choice of
law principles that would result in the application of the laws of a different
state.
9. Asyst will provide [*] where required to the extent that it has
the right to do so without the payment of [*] to such [*].
IN WITNESS WHEREOF, this Loan Agreement has been executed by the duly
authorized representatives of the Parties.
SOLECTRON CORPORATION ASYST TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxx Xxxx
------------------------------ ------------------------------
Print Name: Xxxx Xxxxxxxxx Print Name: Xxxx Xxxx
---------------------- ----------------------
Title: Senior Vice President Title: Senior Vice President
and President SSG of Manufacturing Operations
--------------------------- ---------------------------
Date Signed: September 5, 2002 Date Signed: September 5, 2002
--------------------- ---------------------
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
50.
ATTACHMENT E
TEST AND TOOLING EQUIPMENT
BUS UNIT ASSET # COST NBV ACCOUNT VENDOR DESCRIPTION LOCATION
-------- ------- ---- --- ------- ------ ----------- --------
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
The Equipment shall remain located at all times at a location that has been
approved in writing by Asyst.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
51.
ATTACHMENT F
ASSEMBLY/TEST REQUIREMENTS
The following items contain Asyst's assembly and test requirements for Products,
which requirements are hereby incorporated by reference into this Agreement: all
bills of material, development and engineering drawings and artwork,
manufacturing process instructions, quality records, reports and certifications,
clean room specifications and requirements, package and packing requirements,
assembly and test documentation, Specifications and other documented
requirements of Asyst for the Products within Asyst's product data management
system for the Products, as such items may be updated at any time and from time
to time by Asyst.
Upon written request by Manufacturer, access to such items will be made
available to Manufacturer by Asyst. Where possible, such access will be provided
based on part number and then-current revision levels. Manufacturer acknowledges
that prior to the Effective Date, it has had the opportunity to review all such
items that have been provided by Asyst, as they exist on the Effective Date.
Asyst may furnish, at any time and from time to time, to Manufacturer updates to
the foregoing documents. Such updates shall amend and become a part of this
Attachment unless Manufacturer objects in writing to any specific provisions in
such updates within [*] business days after receipt thereof. If Manufacturer
chooses to object to any such updates, it will provide in writing to Asyst its
specific objections in reasonable detail within such time frame, and the Parties
will thereafter promptly negotiate in good faith a reasonable solution to
resolve all such objections that may be raised by Manufacturer regarding such
updates.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
52.
ATTACHMENT G
PRICING SCHEDULE
ASSUMPTIONS:
Pricing is based on the potential achievement of purchases of Products,
including spare parts, over a rolling [*] period, which achievement will be
measured based on each [*] period commencing on the Effective Date provided,
however, for the first [*] of the Agreement, the initial pricing will be based
on the prior actual results and forecasted revenue through the end of such
quarters. A reconciliation will be performed of forecasted purchases to actual
purchases after each [*] period of actual Product purchase results. If there is
a balance due based on actual purchases, it will be invoiced by Manufacturer to
Asyst. If Asyst has overpaid monies to Manufacturer for purchases of Products
based on actual purchases, then Manufacturer shall immediately credit or refund,
at Asyst's option, such overage to Asyst.
$100M OR $80M - $70M - $60M - $50M -
GREATER $90M - $99M $89M $79M $69M $59M UNDER $50M
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
Prices are FCA Factory.
NPI costs are not included in the pricing above.
Customer will pay actual inbound freight costs.
Shop rate for packaging is the same as Assembly. Time standards for packaging
are to be included in total assembly time.
The above Pricing includes (i) standard [*]-month warranty for workmanship and
materials, (ii) an additional [*]-month extended warranty for workmanship, and
(iii) [*]. Asyst may elect at any time upon written notice to Manufacturer to
remove the [*]-month extended warranty coverage for workmanship. Upon receipt of
any such notice, Manufacturer will reduce the pricing for future Products to be
supplied to Asyst and Asyst's affiliates and subsidiaries by [*], which
represents the price for such extended warranty for workmanship.
Spares and consumables are included in standard forecast process.
Spares and consumables are under the same warranty provisions as Products.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
53.
EXAMPLE: PRECISION MACHINE INTEGRATION PREDICTIVE COST MODEL
----------------------------------------------------------------------------------------
Material Cost $ --
----------------------------------------------------------------------------------------
ITEM MTL $ OR TIME M/U OR RATE M/U $ EXTENDED
----------------------------------------------------------------------------------------
[*] $ [*] [*] [*] [*]
[*] $ [*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*]
----------------------------------------------------------------------------------------
[*] [*]
----------------------------------------------------------------------------------------
[*] [*] [*]
[*] [*] [*]
========================================================================================
[*] [*]
========================================================================================
TOTAL [*]
----------------------------------------------------------------------------------------
ASSUMPTIONS:
See "Assumptions" Worksheet
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
54.
ATTACHMENT G-1
ASYST BASELINE COSTS
The following schedules contain Asyst's baseline costs of manufacture as of the
Effective Date for those Products that Asyst plans to purchase from
Manufacturer. In this regard, the specific cost amounts in the following
schedules under "Asyst" represent Asyst's existing costs of manufacture for such
Products as of the Effective Date.
300MM FL AMHS TRACKS (2M)
---------------------------------------------------------------------------------------------------
ASYST HOURS RATE COST ASYST HOURS RATE COST
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
------------- ------------
[*] [*] [*] [*]
------------- ------------
AMHS DIRECTORS
-------------------------------------------------
ASYST HOURS RATE COST
-------------------------------------------------
[*] [*]
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
--------------
[*] [*]
--------------
AMHS FASTLIFTS AMHS FASTPORT
---------------------------------------------------------------------------------------------------
ASYST HOURS RATE COST ASYST HOURS RATE COST
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] $ [*] [*]
[*] [*] [*] [*] [*] [*] $ [*] [*]
---------- -----------
[*] [*] [*] [*]
---------- -----------
AMHS FASTLOAD
-------------------------------------------------
ASYST HOURS RATE COST
-------------------------------------------------
[*] [*]
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
-------------
[*] [*]
-------------
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
55.
ROBOTS AXYS PLUS PORTAL
---------------------------------------------------------------------------------------------------
ASYST HOURS RATE COST ASYST HOURS RATE COST
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
----------- -----------
[*] [*] [*] [*]
----------- -----------
SORTERS
-------------------------------------------------
ASYST HOURS RATE COST
-------------------------------------------------
[*] [*]
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
-------------
[*] [*]
-------------
200MM PODS SMART TAGS/AUTO ID
---------------------------------------------------------------------------------------------------
ASYST HOURS RATE COST ASYST HOURS RATE COST
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
----------- ----------
[*] [*] [*] [*]
----------- ----------
PREALIGNER
-------------------------------------------------
ASYST HOURS RATE COST
-------------------------------------------------
[*] [*]
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
-------------
[*] [*]
-------------
300MM FOUPS 200MM LPT
---------------------------------------------------------------------------------------------------
ASYST HOURS RATE COST ASYST HOURS RATE COST
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
----------- -----------
[*] [*] [*] [*]
----------- -----------
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
56.
200MM INDEXERS
-------------------------------------------------
ASYST HOURS RATE COST
-------------------------------------------------
[*] [*]
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
-------------
[*] [*]
-------------
LPI VERSAPORT
---------------------------------------------------------------------------------------------------
ASYST HOURS RATE COST ASYST HOURS RATE COST
---------------------------------------------------------------------------------------------------
[*] [*] [*] [*]
[*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*]
----------- -----------
[*] [*] [*] [*]
----------- -----------
ADVANTAG READER
-------------------------------------------------
ASYST HOURS RATE COST
-------------------------------------------------
[*] [*]
[*] [*] [*]
[*] [*] [*] [*]
[*] [*] [*] [*]
-------------
[*] [*]
-------------
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
57.
ATTACHMENT H
REPAIR AND REFURBISHMENT PROCEDURES
1. Purpose. To define Manufacturer's responsibilities to Asyst for repair
and support. This document shall be used in conjunction with the Manufacturing
Services and Supply Agreement and Attachment L ("Supplier Quality
Requirements").
2. Scope. This Attachment H ("Repair and Refurbishment Procedures"),
together with Attachment L ("Supplier Quality Requirements") to the extent
applicable, describes Asyst's requirements for worldwide support of Products
either by Manufacturer. Asyst's goal is to receive Products [*] on time and that
Products meet the quality requirements described in the Manufacturing Services
and Supply Agreement and Attachment L ("Supplier Quality Requirements").
3. Definitions. For the purpose of interpretation of this Attachment, the
terms in this Attachment H ("Repair and Refurbishment Procedures") shall have
the same meaning as the definitions in Attachment Q ("Defined Terms," provided,
however, the following terms shall have the following meanings:
3.1 "DEPOT REPAIRABLE UNit" or "DRU" shall mean a subassembly or
component of Product sent by Asyst, an affiliate or subsidiary of Asyst, or an
Asyst Third Party Repair Supplier ("TPRS") to Manufacturer's facility for
repair.
3.2 "DISTRIBUTION CENTER" or "DC" shall mean a third party designated
by Asyst who processes returns on Products on Asyst's behalf.
3.3 "ENGINEERING CHANGE ORDER" "ECO" shall mean the mechanism by
which a party notifies the other party of a change to the Products.
3.4 "FIELD REPLACEABLE UNIT" "FRU" shall mean a Product or
subassemblies thereof which can be replaced at the customer site.
3.5 "NO TROUBLE FOUND" or "NTF" shall mean a Product which Asyst has
returned as defective but which passes Manufacturer's standard test process (as
approved by Asyst). NTF does not include Products that incur ECO upgrades and/or
adjustments by Manufacturer.
3.6 "PRODUCT" shall mean the Products as defined in Attachment Q
("Defined Terms"), FRUs and DRUs, as well as any New Product later released and
confirmed in writing by Manufacturer via electronic mail or updated price list.
3.7 "REPAIR SERVICE" shall mean minor adjustments to Product, repair
of defective Product, or provision of Repair or Replacement Product.
3.8 "REPAIRED OR REPLACEMENT PRODUCT" shall mean Product of the same
model and part number, but not necessarily the same serial number, used to
replace defective Products. This Product can be either new or of a like new
condition.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
58.
3.9 "RETURN MATERIAL AUTHORIZATION" or "RMA" shall mean the formal
authorization from Manufacturer under which Asyst returns Product for repair or
replacement.
4. Repair Services and Requirements
4.1 At a minimum, Manufacturer shall maintain, directly or through
agents fully equipped and staffed facilities to a level sufficient to meet the
agreed performance targets.
4.2 [*]:
4.2.1 For purposes of this Attachment, "EPIDEMIC FAILURES" shall
mean FRU failures which are related to the identical root cause occurring within
[*] months after the date of delivery of the FRU, equal to or in excess of the
rate (the "Failure Rate") agreed upon by the Parties, resulting from defects, in
workmanship, manufacturing process, or design (but specifically excluding
therefrom, any design or specification provided by Asyst).
4.2.2 In the event of a suspected Epidemic Failure, Asyst shall
promptly notify Manufacturer, and shall provide the following information, if
known and as may then exist: (i) a description of the defect, (ii) the suspected
lot numbers, (iii) FRU IDs or other identifiers, and (iv) delivery dates of the
defective FRUs. Where possible, Asyst shall deliver or make available to
Manufacturer, samples of the defective Products for testing and analysis. Within
[*] days of receipt of written notice from Asyst, Manufacturer shall provide its
preliminary findings regarding the cause of the failures. Thereafter,
Manufacturer shall promptly provide the results of its root cause corrective
analysis, its proposed plan for the identification of and the repair and/or
replacement of the affected FRUs, and such other appropriate or desirable
information.
4.2.3 The parties shall also cooperate and work together to
expeditiously devise and implement a corrective action program which identifies
the defective units for repair or replacement, and minimizes disruption to the
end user.
4.2.4 In the event of an Epidemic Failure, Manufacturer shall be
responsible for (a) (i) repair and/or replacement of the defective FRUs, or (ii)
a credit or payment to Asyst in an amount equal to the cost to Asyst for
qualified, nondefective replacement FRUs acceptable to Asyst; and (b) reasonable
freight and transportation costs incurred in connection with the repair and/or
replacement of the defective FRUs (and the Product in which the FRU is
incorporated if the FRU cannot be separated without undue inconvenience or
disruption to the end user).
4.3 Product will be shipped to Asyst in a configuration defined by
the Product Specifications and BOMs.
4.4 Repaired or Replacement Product will be upgraded by Manufacturer
to the then current Product revision level or to a revision level as documented
and agreed upon by Asyst and Manufacturer.
5. Product Support. Manufacturer will support Asyst to achieve the
following:
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
59.
5.1 Serviceability requirements will be defined by the parties for
each Product and will include such things as: no special tools required and
maximum average time to repair. Diagnostics and troubleshooting coverage of the
system to a minimum percent (i.e., diagnostics can identify a failing component
across XX% of the system).
5.2 The serviceability requirements defined for any Product will be
based upon the base level Product serviceability requirements, which must
support the marketing and service delivery model of Asyst.
5.3 As part of these serviceability requirements, the product, or
product concept, must be able to provide first fault isolation to a single FRU
by general availability (GA) of the product. If it can not, the service cost
estimates will reflect this lack of functionality.
6. Price
6.1 Except as otherwise provided in the Manufacturing Services and
Supply Agreement, there shall be no charge to Asyst for Warranty Repair Services
(including, but not limited to, labor, material testing or packaging) during the
warranty period.
6.2 All costs to Asyst for out of warranty repair prices, including
but not limited to labor, material, testing and packaging are shown in Exhibit
H-3 to this Attachment H ("Repair and Refurbishment Procedures").
7. Payment
7.1 Asyst shall be liable to pay only for [*] ordered by and invoiced
directly to Asyst.
7.2 Asyst's purchase order number, Product serial number, RMA number,
or other required reference numbers shall be clearly identified on all
correspondence, shipment, and invoice documentation associated with Repair
Services.
8. Freight and Import/Export Fees
8.1 Freight and Import/Export Fees - In Warranty Products.
Manufacturer shall pay all [*] associated with and resulting from the return of
the repaired Product to Asyst. Manufacturer will ship returned Product by the
same method used inbound.
8.2 Freight and Import/Export Fees - Out of Warranty Products. Asyst
shall pay all [*] for shipment of the defective Product to Manufacturer.
Manufacturer is responsible for freight charges associated with shipment of
Repaired or Replacement Products to Asyst.
8.3 Expedited Transportation. All Products, whether in or out of
warranty, which are past due from the date established by the RMA and tracked in
the purchase order shall be shipped by the most expeditious method at
Manufacturer's expense.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
60.
9. Repair Warranty
9.1 All Repaired or Replacement Products and FRUs shall be warranted
by Manufacturer to perform in accordance with the applicable Specifications or
portion thereof, and shall be free from all defects in material and workmanship
for [*] months from the date of receipt from Manufacturer by Asyst or for the
remainder of the original Product warranty, whichever is greater.
9.2 Upon request, Manufacturer shall provide Asyst with applicable
repair costs, replacement costs, lead times, changes in MTBF data and other
pertinent data points.
10. No Trouble Found
10.1 NTF charges that may become due and payable by Asyst to
Manufacturer are set forth in Exhibit H-2 to this Attachment H ("Repair and
Refurbishment Procedures").
10.2 Regardless of whether or not a Product is determined to be NTF or
repaired, it must be upgraded by Manufacturer to a revision level accepted by
Asyst. NTF charges do not include the cost of upgrading any Product to a
revision level agreed upon by Asyst and Manufacturer. Upgrade charges, if any,
will be identified separately and agreed to by the Parties in advance of the
performance by Manufacturer of any requested upgrades.
11. Inventory Management
11.1 Manufacturer shall follow adequate procedures for the proper
control of returned units of Products. Record keeping shall include, but not be
limited to, the maintenance of accurate, updated records of the Asyst inventory
and the use of an inventory tracking system that measures physical inventories,
cycle counting, and other adjustments to maintain accuracy.
11.2 Cycle count results shall be reported by Manufacturer to Asyst
within [*] working days after Asyst's initial request.
11.3 Manufacturer shall be responsible for all Asyst owned Product
inventory variances in Manufacturers' possession. If Manufacturer is unable to
reconcile any inventory variance for Products in Manufacturer's possession,
Manufacturer shall be liable for the unaccounted inventory and will: (i) provide
Asyst a like unit or, (ii) upon Asyst's agreement, give Asyst full credit for
Asyst's replacement cost of the missing item within [*] days after discovery of
the variance.
12. Third Party Repair
12.1 Manufacturer acknowledges that Asyst or a third party
contracted by Asyst may, from time to time, perform warranty repairs at an end
user's location.
12.2 Manufacturer agrees to reimburse Asyst for out of pocket
expenses associated with such warranty repair under the following conditions a)
the defect(s) was warranted under the provisions of Section 11 of the
Manufacturing Services and Supply
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
61.
Agreement and b) the nature of the defect or repair makes it impractical, due to
end user requirements, to return the defective Product to Manufacturer for
repair and c) Asyst does not receive reimbursement from another source and d)
Asyst provides Manufacturer with reasonable documentation specifying the nature
of the defect, Product serial number and repair performed.
12.3 Manufacturer's reimbursement to Asyst under this Section
12 will be limited to the costs that Manufacturer would have accrued if the
repair was performed at Manufacturer's facility. Manufacturer's costs for repair
as of the Effective Date are estimated to be [*] per hour for actual time to
repair plus material costs.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
62.
EXHIBIT H-1
Intentional left blank.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
63.
EXHIBIT H-2
NTF CHARGES
The NTF per unit charge will be negotiated by the Parties and will be predicated
upon the actual costs that are incurred by Solectron in the determination of a
NTF for an applicable unit.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
64.
EXHIBIT H-3
OUT OF WARRANTY REPAIR
Charges for out of warranty repair are [*].
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
65.
ATTACHMENT I
ASYST TRADEMARKS
Registered Asyst Trademarks:
ASYST, A and _________________, as well as FLUOROTRAC, KPOD, ADU, MANUFACTURING
CONNECTIVITY.
Other Asyst Trademarks:
AXYS, Fastrack, Fastmove, Fastload, Fastore, Asyst-SMIF System, SMIF-Pod,
SMIF-FOUP, SMIF-Arms, SMIF-Indexer, SMIF-LPI, SMIF-LPO, SMIF-LPT, SMIF-E,
Versaport, Plus, Inx, Advan Tag, Link-Manager, Smart-Fab, Smart-Tag,
Smart-Station, Smart-Storage, Smart-Traveler, Smart-Comm, Substrate Management
System, Retical Management System, Wafer Management System, Global Lot Server
and Flourotrac Auto Id System.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
66.
ATTACHMENT J
BUSINESS CONTINUITY PLAN
(See attached Solectron plans)
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
67.
ATTACHMENT K
LIST OF EXISTING COMPONENT PARTS
(See attached schedule)
The Existing Component Parts that will be purchased by Manufacturer shall
consist substantially of the items in the attached schedule, which represents an
inventory of all Existing Component Parts as of August 20, 2002. Manufacturer
acknowledges and agrees that certain minor deviations may exist in such list
prior to the date on which it takes possession of such inventory of Existing
Component Parts. Manufacturer further acknowledges and agrees that it has
performed a physical inventory of the Existing Component Parts and is willing to
acquire such items, subject to the minor deviations. The total amount to be paid
by Manufacturer for the Existing Component Parts pursuant to this Agreement is
equal to Asyst's standard cost for the inventory of Existing Component Parts
that Manufacture will receive provided, however, that Manufacturer shall not pay
more than [*] for such Existing Component Parts. Upon request, Manufacturer will
provide to Asyst any required information to establish the fact that such sale
of Existing Component Parts is exempt from sales or use taxes by furnishing a
resale tax exemption certificate for such purchase.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
68.
ATTACHMENT L
SUPPLIER QUALITY REQUIREMENTS
The following is a list of documents that contain Asyst's quality requirements.
Manufacturer acknowledges receipt and review of the same prior to the Effective
Date. The procedures and requirements of Asyst for the development, manufacture,
testing and delivery of Products and maintenance of quality for the Products may
be found in such documents, which procedures and requirements are hereby
incorporated by reference into this Agreement.
1. Product Development and Introduction Process Guideline, Document Number
QS187, Revision No. D, QSCN No. 381, released by Xxxxxxxx Xxxxxxxx on 4/29/02.
2. Receiving Inspection System Map, Document Number QS94, Revision C, QSCN
No. 200, released by Xxxxxxxx Xxxxxxxx on 10/11/01.
3. Receiving Inspection Sampling Plan Process, Document Number QS72,
Revision E, QSCN No. 353, released by Xxxxxxxx Xxxxxxxx on 4/03/02.
4. Asyst Technologies Workmanship Standards Manual, Manual Part No.
0000-0000-00 Rev B.0, published February 1997, (C) Asyst Technologies, Inc., May
1994.
5. Supplier Quality Requirements -- Supplemental Purchase Order Conditions
(SPOC) Manual, Document No. QS129, Revision B, released by Xxxxxxxx Xxxxxxxx on
4/5/01.
6. First Article Inspection Pass, Document No. QS127, Revision C, QSCN No.
200, released by Xxxxxxxx Xxxxxxxx on 10/11/01.
Asyst may furnish, at any time and from time to time, to Manufacturer updates to
the foregoing documents. Such updates shall amend and become a part of this
Attachment unless Manufacturer objects in writing to any specific provisions in
such updates within [*] business days after receipt thereof. If Manufacturer
chooses to object to any such updates, it will provide in writing to Asyst its
specific objections in reasonable detail within such time frame, and the Parties
will thereafter promptly negotiate in good faith a reasonable solution to
resolve all such objections that may be raised by Manufacturer regarding such
updates.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
69.
ATTACHMENT M
B2B MESSAGING
1. Definitions
1.1. "EDI" means B2B messaging using data exchange formats provided
and utilized by Asyst.
1.2. "ADOPTED FORMAT" is the accepted method for the interchange of
Documents under this Agreement based on standards adopted by Asyst for the
presentation and structuring of the electronic transmission of Documents, or
other such format as may be agreed to in writing by the Parties.
1.3. "DOCUMENT" is data structured in accordance with the Adopted
Format and transmitted electronically between the Parties.
1.4. "TEST" means transmission of a Document during a testing period
to verify set ups in EDI-related software, network transmission and technical
support processes.
1.5. "PROVIDER" is a business entity that provides the service of
moving and routing EDI transmissions between the Parties.
2. Prerequisites
2.1. Documents, Standards. Each Party may electronically transmit to
or receive from the other Party any Document which the Parties have mutually
agreed to Test. The content of Test Documents will be considered "dummy" data
unless otherwise agreed to by the Parties. All Documents which are intended to
evidence a transaction shall be transmitted in accordance with the Adopted
Format.
2.2. Providers. Documents will be transmitted electronically to each
Party through any Provider with which either Party may contract and/or the
Internet. The Provider for each Party shall be communicated to the other Party.
Either Party may change its designated Provider upon [*] days prior written
notice to the other Party. Each Party shall be responsible for the costs of any
Provider with which it contracts.
2.3. System Operations. Each Party, at its own expense, shall provide
and maintain the equipment, software, services and testing necessary to
effectively and reliably transmit and receive Documents. If Provider is down and
this prevents either Party from meeting the pickup or delivery frequency agreed
to, that Party must notify the other Party the same day.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
70.
2.4. Security Procedures. Each Party shall use security procedures
which are reasonably anticipated to: (a) ensure that all transmissions of
Documents are authorized; and (b) protect its business records and data from
improper access.
2.5. Signatures. Each Party may adopt as its signature an electronic
identification consisting of symbol(s) or code(s) which are to be affixed to or
contained in each Document transmitted by such Party ("Signatures"). Each Party
agrees that any Signature of such Party affixed to or contained in any
transmitted Document shall be sufficient to verify such Party originated such
Document. Neither Party shall disclose to any unauthorized person the Signatures
of the other Party.
3. Transmissions
3.1. Proper Receipt. Documents shall not be deemed to have been
properly received, and no Document shall give rise to any obligation, until
accessible to the receiving Party at such Party's electronic mailbox.
3.2. Verification. Upon receipt of any Document, the receiving Party
shall promptly and properly transmit a functional acknowledgement in return
within [*] business day after receipt of a Document.
3.3. Acceptance. If a transmitted Document requires acceptance by the
receiving Party, any such Document which has been properly received shall not
give rise to any obligation unless and until the Party initially transmitting
such Document has properly received in return an acceptance Document.
3.4. Garbled Transmissions. If any Document is received in an
unintelligible or garbled form, or otherwise contains evidence of faulty
transmission, the receiving Party shall promptly notify the originating Party
(if identifiable from the received Document) in a reasonable manner. In the
absence of such notice, the originating Party's records of the contents of such
Document shall control.
3.5. Erroneous Transmissions. If either Party receives a Document from
the other Party which differs from the applicable terms and conditions, (e.g.,
an order with a price, quantity or schedule different than that mutually agreed
upon), the receiving Party shall promptly contact the sending Party to confirm
the accuracy of the Document.
4. Transaction Terms
4.1. Order Placement. Each purchase release electronically transmitted
shall reference the Asyst purchase order number, and the Asyst EDI number.
4.2. Validity, Enforceability. The Parties acknowledge their mutual
intent to create binding purchase, sale and payment obligations by means of
electronic transmission and receipt of Documents specifying certain of the
applicable terms. During the term of the Agreement, all obligations concerning
the delivery of such Documents in written form may be satisfied by a
transmission pursuant to the terms of this Exhibit. However, either Party shall
have the option, at
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
71.
its discretion, to transmit Documents in written form to the other Party. Any
Document properly transmitted pursuant to these terms shall be deemed ("Signed
Documents") and shall be considered, in connection with any transaction, to be a
"writing" or "in writing" and to have been "signed" and to constitute an
"original" when printed from electronic files or records established and
maintained in the normal course of business. The Parties agree that the
provisions of the Uniform Commercial Code, Section 2-201 ("Formal Requirements:
Statute of Frauds"), shall not apply to Documents covered by this Exhibit since
hard copies of Documents will not be issued and the Parties further agree that
said Documents shall be deemed to satisfy any statutory or legal formalities
requiring that agreements be in writing, including the Statute of Frauds. The
conduct of the Parties pursuant to this exhibit, including the use of Signed
Documents properly transmitted, shall, for all legal purposes, evidence a course
of dealing and a course of performance accepted by the Parties in furtherance of
this Agreement and Document. The Parties agree not to contest the validity or
enforceability of Signed Documents under the provisions of any applicable law
relating to whether certain agreements be in writing or signed by the Party to
be bound thereby. Signed Documents, if introduced as evidence on paper in any
judicial, arbitration, mediation or administrative proceedings, will be
admissible as between the Parties to the same extent and under the same
conditions as other business records originated and maintained in documentary
form. Neither Party shall contest the admissibility of copies of Signed
Documents under the business records exception to the hearsay rule or the best
evidence rule on the basis that Signed Documents were not originated or
maintained in documentary form.
5. Asyst B2B Message Implementations. Manufacturer will modify its
electronic data interchange systems to implement and use the following B2B
messages to permit transmission of purchase orders and exchange of other
information with Asysts:
(a) [*]
(b) [*]
(c) [*]
[*]
(d) [*]
(e) [*]
(f) [*]
(g) [*]
(h) [*]
(i) [*]
(j) [*]
(k) [*]
(l) [*]
(m) [*]
(n) [*]
(i) [*]
(ii) [*]
(iii) [*]
(iv) [*]
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
72.
ATTACHMENT N
PRODUCTS FOR WHICH EXCLUSIVITY APPLIES
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
73.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
74.
ATTACHMENT O
TRANSITION PLAN
(See attached)
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
75.
ATTACHMENT P
DEVELOPMENT AND ENGINEERING CHANGE REQUIREMENTS
The following is a list of documents that contain Asyst's development and
engineering change requirements. Manufacturer acknowledges receipt and review of
the same prior to the Effective Date. The procedures and requirements of Asyst
for the development of Products and processing of engineering changes to the
Products may be found in such documents, which procedures and requirements are
hereby incorporated by reference into this Agreement.
1. Product Development and Introduction Process Guidelines, Document Number
QS187, Revision No. D, QSCN No. 381, released by Xxxxxxxx Xxxxxxxx on 4/29/02.
2. Version 1.0 of Asyst Service Level Agreement for the implementation by
Manufacturer of New Product Development under Asyst's Product Development and
Introduction Process Guidelines, Document Number QS187, as provided on August
23, 2002 via electronic mail on behalf of Asyst to the Vice President of
Strategic Opportunity Management of Manufacturer.
3. Engineering Change Control Process, Document Number QS100, Revision A,
released by Xxxxx Xxxxxxx on January 25, 2001.
4. Beta Change Control Process, Document Number QS180, Revision A, released
by Xxxxxxxx Xxxxxxxx on June 12, 2001.
Asyst may furnish, at any time and from time to time, to Manufacturer updates to
the foregoing documents. Such updates shall amend and become a part of this
Attachment unless Manufacturer objects in writing to any specific provisions in
such updates within [*] business days after receipt thereof. If Manufacturer
chooses to object to any such updates, it will provide in writing to Asyst its
specific objections in reasonable detail within such time frame, and the Parties
will thereafter promptly negotiate in good faith a reasonable solution to
resolve all such objections that may be raised by Manufacturer regarding such
updates.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
76.
ATTACHMENT Q
DEFINED TERMS
As used in this Agreement:
1. "AGREEMENT" means the Manufacturing Services and Supply Agreement made
as of the Effective Date by and between Asyst and Manufacturer.
2. "ASYST" means Asyst Technologies, Inc.
3. "ASYST" INVENTORY" means that inventory of materials and components that
Manufacturer may reasonably claim that it was required to purchase in order to
comply with Asyst's delivery requirements and in-line with the appropriate
quantity of Asyst-unique economic order quantities and Long Lead Time Components
inventory.
4. "AVL" means Asyst's approved vendor list that contains a list of vendors
that Manufacturer is required to purchase components and materials from for use
in the Products.
5. "XXXX OF MATERIAL" or "BOM" means a list that contains, among other
things, a description and quantities of components and materials to be included
in the Products.
6. "CHANGE IN CONTROL" means any: (i) a consolidation or merger of
Manufacturer with or into another entity or other reorganization, in which the
holders of Manufacturer's voting interests immediately before such
consolidation, merger, or reorganization do not immediately after such
consolidation, merger, or reorganization retain a majority of the voting
interests of the surviving entity or a majority of the voting interests of an
entity that owns or controls, directly or indirectly, the surviving entity; (ii)
purchase or acquisition by an acquiring party or group in one or more of a
series of related transactions of a controlling interest in Manufacturer; or
(iii) sale of all or substantially all of Manufacturer's assets that apply to
this Agreement.
7. "CHARACTERISTICS" means schedule, performance, reliability,
availability, serviceability, appearance, dimensions, tolerances, safety or
costs of a Product.
8. "CONFIDENTIAL INFORMATION" means all information (i) identified in
written or oral format by the disclosing Party as confidential, trade secret or
proprietary information and, if disclosed orally, summarized in written format
within [*] days of disclosure, or (ii) the receiving Party knows or has reason
to know is confidential, trade secret or proprietary information of the
disclosing Party, but excluding any information that the receiving Party can
show: (i) is now or subsequently becomes legally and publicly available without
breach of this Agreement by the receiving Party, (ii) was rightfully in the
possession of the receiving Party without any obligation of confidentiality
prior to receiving it from the disclosing Party, (iii) was rightfully obtained
by the receiving Party from a source other than the disclosing Party without any
obligation of confidentiality, or (iv) was developed by or for the receiving
Party independently and without reference to such information that can be shown
by documentary evidence.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
77.
9. "DEVELOPMENTS" means every invention (whether or not patentable),
know-how, copyrightable material or information conceived, developed or reduced
to practice or tangible form by Manufacturer in the performance of this
Agreement relating to Products or otherwise incorporated into the Products that
are paid for by Asyst.
10. "EFFECTIVE DATE" means September 5, 2002.
11. "ENGINEERING CHANGE" means a mechanical, electrical, piece part or
subassembly design or Specifications change made to the Products or to any
manufacturing, assembly or testing method, procedure or process which, if made,
could affect the Characteristics of or for a Product.
12. "EXISTING COMPONENT PARTS" means Asyst's existing active inventory of
components that are identified on Attachment K ("List of Existing Component
Parts").
13. "INTELLECTUAL PROPERTY RIGHTS" means all copyrights (including the
exclusive right to reproduce, prepare derivative works, distribute, publicly
display and publicly perform), patent rights (including patent applications),
trade names, trademarks, service names, service marks, trade dress, mask-work
rights, trade secrets, moral rights, author's rights, right of publicity,
contract and licensing rights, rights in packaging, goodwill, industrial rights
and other intellectual property rights as may exist now or hereafter come into
existence and all renewals and extensions thereof, regardless of whether any of
such rights arise under the laws of the United States of America and of every
other state, country or jurisdiction throughout the world.
14. "LONG LEAD TIME COMPONENTS" means those components that are intended for
inclusion in Products and are subject to ordering lead times in excess of [*]
days.
15. "MANUFACTURER" means Solectron Corporation, a Delaware Corporation, and
its subsidiaries and affiliates, which includes Solectron Technology Singapore
Ltd., Solectron Technology Sdn Bhd, Solectron Netherlands BV and any other
Offshore Business Headquarters
16. "NON-CANCELABLE/NON-RETURNABLE MATERIAL" means those components of
Manufacturer for which Manufacturer has negotiated agreements with suppliers
that Asyst has authorized Manufacturer to procure components under and do not
provide for the return and/or cancellation of such components without the
payment by Manufacturer of more than a nominal charge, but in all cases
excluding Existing Component Parts.
17. "NRE TOOLING" means certain engineering tooling and/or fixtures that are
developed or purchased from a third party by Manufacturer in order to
manufacture the Products.
18. "ONTIME DELIVERY" means units of Products are delivered on-time to Asyst
and Asyst's affiliates and subsidiaries as to their requested location of
delivery and requested delivery dates during each calendar month.
19. "OUT OF BOX QUALITY" means Products that are delivered are capable of
being installed and fully and immediately operational using normal Asyst
installation procedures.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
78.
20. "PRODUCT TECHNOLOGY" means means all object code and source code,
schematic diagrams, information and other related processes and tangible
embodiments relating in any way to the Products, and all other Confidential
Information supplied by Asyst, as well as all patents, copyrights, mask works,
circuit layout rights, design rights, trade secret rights, and other proprietary
rights including intellectual property, in or covering the foregoing.
21. "SHIPMENT ACCURACY" means units of Products are properly packed and
packaged in accordance with the Specifications and are complete with respect to
items requested for inclusion by Asyst in each shipment intended for delivery to
a customer.
22. "[*] EXCESS INVENTORY" means those components and materials of
Manufacturer which are [*] or are [*] material on order that were previously [*]
as [*] Excess Inventory, have not been used in [*] or otherwise [*] by
Manufacturer, and are in excess of [*] days of demand as identified in Asyst's
forecasts, but in all cases excluding any and all components and materials or
[*] material on order that are [*] as [*].
23. "STOP PRODUCTION NOTICE" means a written notice from Asyst to
Manufacture that directs Manufacturer to stop the production of Products during
the manufacturing process.
24. "[*] EXCESS INVENTORY" means those: (a) components and materials of
Manufacturer which are [*] or are [*] material on order that (i) are to be used
in [*], (ii) are not [*] as [*] and (iii) are in excess of [*] days of demand as
identified in purchase orders, which have been supplied to Manufacturer under
this Agreement, and (b) [*] of Manufacturer which are [*] or are [*] material
that (i) are to be used in [*], (ii) Asyst has authorized Manufacturer to [*] in
accordance with Section [*], and (ii) are in [*] of those portions of Asyst's
[*] encompassing units that contain such [*], but in all cases excluding any and
all components and materials or [*] material on order that are [*] as [*] or [*]
Excess Inventory.
25. "TEST EQUIPMENT" means certain test and tooling equipment that Asyst
owns or has the right to possess and has agreed to loan to Manufacturer in order
to produce Products under this Agreement for supply to Asyst and Asyst's
affiliates and subsidiaries.
26. "TRADEMARKS" means Asyst's trademarks, trade names, service marks,
service names and logos, if any, as listed in Attachment I.
27. "TRANSFER DATE" means October 14, 2002 (or October 31, 2002 if Manufacturer
is unable to hire at least two (2) accounts payable personnel from Asyst as part
of the employees for which Manufacturer makes offers to pursuant to Section 10.7
of the Agreement).
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
79.
28. "TRANSITION PERIOD" means the period of time during which Manufacturer
will move the locations of manufacture that exist as of the Effective Date for
the Products of Asyst that are manufactured on the Effective Date to
then-existing agreed upon locations of Manufacturer. The transition period will
commence on the Effective Date and will end when the Products are fully
transitioned to Manufacturer's manufacturing locations, which is expected to
occur no later than March 31, 2003.
29. "VENDOR MANAGED INVENTORY" means an inventory of materials and
components that is managed and maintained by suppliers to Manufacturer at
designated hub locations, at the expense of such suppliers, that are segregated
by such suppliers for potential use and delivery to Manufacturer for use on an
"as needed" basis in the manufacture of Products.
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
80.
