EXHIBIT 10.17
SETTLEMENT AGREEMENT AND MUTUAL GENERAL RELEASE
This Settlement Agreement and Mutual General Release ("AGREEMENT") is
made and entered into on January 12, 2002 by and between Novatel Wireless, Inc.
("NOVATEL WIRELESS") and Sanmina-SCI Corporation and Sanmina Canada ULC
(collectively "SANMINA" and, together with Novatel Wireless, the "PARTIES"). The
exhibits to this Agreement are hereby expressly incorporated into and made a
part of this Agreement.
I.
RECITALS
A. WHEREAS, on or about July 18, 2001, Sanmina Corporation (now known as
Sanmina-SCI Corporation) and Sanmina Canada ULC filed suit against Novatel
Wireless in Superior Court of the State of California, County of San Diego, Case
No. GIC770894, ("SAN DIEGO LITIGATION"), and that suit was voluntarily dismissed
without prejudice by plaintiffs on October 29, 2001, and Novatel Wireless has
filed a Memorandum of Costs, which Sanmina has moved to strike.
B. WHEREAS, on or about October 18, 2001, Sanmina Corporation filed suit
against Novatel Wireless in Superior Court of the State of California, County of
Xxxxx Xxxxx, Xxxx Xx. XX000000 ("SANTA XXXXX LITIGATION").
C. WHEREAS, Sanmina and Novatel Wireless intend by this Agreement to end
any and all disputes and litigation arising from the claims contained in the San
Diego Litigation and the Santa Xxxxx Litigation, including any offsets asserted
(or which could have been asserted) by Novatel Wireless therein.
II.
AGREEMENT OF SETTLEMENT AND RELEASE
NOW, THEREFORE, in consideration of the foregoing recitals, and
the mutual promises and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, it is agreed as follows:
A. Novatel Wireless' Obligations
(1) Deliveries to Escrow.
(a) On the date hereof, the Parties shall deliver a
fully executed copy of this Agreement to escrow
pursuant to the terms and provisions of the
Escrow Agreement, attached hereto as EXHIBIT F
(the "ESCROW AGREEMENT").
(b) Within one business day after this Agreement is
deposited into escrow, Novatel Wireless shall
deposit into escrow by wire transfer
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the total sum of Two Million Three Hundred
Thousand Dollars ($2,300,000) (the "INITIAL
PAYMENT").
(c) On the date this Agreement is deposited into
escrow , Novatel Wireless shall notify the
transfer agent to issue to Sanmina five million
(5,000,000) shares of Novatel Wireless' common
stock, $0.001 par value per share (the "SHARES")
and shall cause to be delivered to escrow, upon
receipt from the transfer agent, a duly executed
stock certificate evidencing the Shares which
certificate shall be registered in the name of
Sanmina (or otherwise as indicated to Novatel
Wireless by Sanmina in writing). The Parties
shall comply with the terms and conditions set
forth on EXHIBIT A hereto in connection with the
Shares.
(d) As soon as reasonably practical, the Parties
shall cause the Security Agreement and
subordination agreement (each as defined or
further described in paragraph A(8) hereof) to
be deposited into escrow.
(2) Pursuant to the terms of the Escrow Agreement, in the event
the Security Agreement and the subordination agreement have not been deposited
into escrow on or prior to January 28, 2002, the escrow agent shall return all
deliverables to the Party who deposited such deliverable and this Agreement
shall be automatically terminated and of no further force or effect.
(3) At the sole option of Sanmina, which option shall be
exercisable at any time during the ten (10) business day period immediately
following the latter of date of this Agreement or the date the Shares and the
Initial Payment are released from escrow to Sanmina pursuant to the terms of the
Escrow Agreement (the "ESCROW CLOSING DATE"), Novatel Wireless shall repurchase
from Sanmina up to two million (2,000,000) of the Shares at a price of Eighty
Cents ($0.80) per share (such option, the "PUT OPTION"). In the event Sanmina
elects to exercise the Put Option, Sanmina shall deliver to Novatel Wireless
written notice of such election within the time frame specified herein and shall
at that time surrender the applicable Novatel Wireless stock certificate, duly
endorsed or accompanied by a written instrument of transfer. The date on which
Sanmina satisfies these requirements shall be called the "EXERCISE DATE." On the
Exercise Date, all rights with respect to those Shares in respect of which
Sanmina is then exercising the Put Option shall terminate. Within three (3)
business days following the Exercise Date, Novatel Wireless shall wire to
Sanmina an amount equal to the number of shares so indicated on such exercise
notice, multiplied by $0.80, and shall cause Novatel Wireless' transfer agent to
issue and deliver to Sanmina a stock certificate evidencing the balance of the
Shares then held of record by Sanmina.
(4) Subject to the terms and conditions of this Agreement,
Novatel Wireless shall purchase and accept from Sanmina, and Sanmina shall sell
to Novatel Wireless and deliver to Novatel Wireless or its designee, in the
aggregate over the 21-month period beginning January 1, 2002 (the "INVENTORY
PERIOD") inventory from the list set forth in Exhibit B (the
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"INVENTORY") in the aggregate having a value of at least Ten Million Dollars
($10,000,000) (the "INVENTORY PURCHASE COMMITMENT"). The Inventory Purchase
Commitment may be met either through Novatel Wireless' purchase of Inventory
directly from Sanmina or by Novatel Wireless' purchasing finished goods from
Sanmina (subject to the mutual agreement of the parties); provided, however,
that, to the extent the Inventory Purchase Commitment is met through the
purchase of finished goods, the Inventory Purchase Commitment shall only be
reduced by the Agreed Value of any Inventory, listed on Exhibit B, used to
manufacture such finished goods and only to the extent any payment (including
any partial payment) is received by Sanmina in connection with such finished
goods. Each item of the Inventory will be valued according to the value set
forth in EXHIBIT B (the "AGREED VALUE" or, in the event of finished goods, the
"PURCHASE ORDER VALUE"). The purchases will be made according to the following
schedule, which schedule is an express term of the Inventory Purchase
Commitment:
(a) At least One Million Dollars ($1,000,000) in Inventory
on or before March 31, 2002.
(b) Subject to the provisions contained in paragraph 4(g),
at least Three Hundred Thirty Three Thousand Three
Hundred Thirty Three Dollars ($333,333) in Inventory on
or before the last Friday of each month thereafter
during 2002, provided that Novatel Wireless has not
earlier satisfied the Inventory Purchase Commitment,
giving effect to any reductions then pending pursuant to
paragraph 4(e) below.
(c) Commencing on January 1, 2003, subject to the provisions
contained in paragraph 4(g), at least Six Hundred Sixty
Six Thousand Six Hundred Sixty Six Dollars ($666,666) in
Inventory per month on or before the last Friday of each
month through June 30, 2003, provided that Novatel
Wireless has not earlier satisfied the Inventory
Purchase Commitment, giving effect to any reductions
then pending pursuant to paragraph 4(e) below.
(d) The remainder of the Inventory Purchase Commitment, as
adjusted pursuant to paragraph 4(e) below, on the
ninety-first day following the transfer of the last
$666,666 (the "TRANSFER") made pursuant to paragraph
4(c) (the "ADDITIONAL INVENTORY PURCHASE DATE"),
provided, however, that if Novatel Wireless is not in
default in connection with its obligations under the
Inventory Purchase Commitment, then Novatel Wireless'
obligation to make such payment shall be waived. For
purposes of this paragraph, the date of the Transfer
will be deemed to be the last date the Transfer would be
deemed to be made under 11 U.S.C. Section 547.
(e) Notwithstanding anything in this Agreement to the
contrary, so long as Novatel Wireless is not in default
with respect to the Inventory Purchase Commitment, then
on the 91st day following each payment of the Inventory
(the "PAYMENT DATE"), or of manufactured parts
containing components, set forth on the list set forth
on EXHIBIT B, the aggregate Inventory Purchase
Commitment shall be reduced by an amount equal to
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25% of the Agreed Value of the Inventory so purchased.
For purposes of this paragraph, the Payment Date will be
deemed to be the last date the payment would be deemed
to be made under 11 U.S.C. Section 547.
(f) Process to order Inventory. At any time during a
particular month, Novatel Wireless shall advise Sanmina
in writing (each, a "PURCHASE ORDER") of the particular
Inventory (from the list set forth in Exhibit B) which
it desires to purchase during such month and the date
upon which it desires shipment to be made by Sanmina.
Sanmina will ship the Inventory pursuant to the Purchase
Order on the later to occur of (i) 10 days after its
receipt of payment from Novatel Wireless for the
Inventory or (ii) the requested shipment date; provided,
however, that immaterial delays in the shipment of
Inventory shall not excuse Novatel Wireless from the
Inventory Purchase Commitment. In the event shipment is
delayed for reasons outside of Sanmina's complete
control (e.g., shipping delays, labor strikes) (an
"UNAVOIDABLE DELAY"), Novatel Wireless' obligation to
make future monthly payments according to the Inventory
Purchase Commitment shall be suspended until such time
as the Novatel Wireless receives the delayed shipment
(the "SUSPENDED PAYMENTS"). Following Novatel Wireless'
receipt of such delayed shipment, all Suspended Payments
shall be due and payable to Sanmina on the immediately
following scheduled payment date of the Inventory
Purchase Commitment. Sanmina shall ship the Inventory in
respect of such Suspended Payments in accordance with
the provisions of paragraph 4 above. Upon Sanmina's
receipt of payment, the Inventory Purchase Commitment
shall be reduced dollar for dollar by the amount of the
payment. In the event Sanmina for any reason (other than
an Unavoidable Delay) fails to deliver more than 15% of
the requested Inventory on such Purchase Order,
including, without limitation, Sanmina's failure to have
such requested Inventory in stock, any payment made by
Novatel Wireless for such inventory not in stock (the
"UNAVAILABLE INVENTORY") will be returned to Novatel
Wireless and the outstanding amount of the Inventory
Purchase Commitment shall be reduced by an amount equal
to the Agreed Value of the Unavailable Inventory.
(g) Acquisition of Inventory in excess of amounts specified
in 4(a) through (c). Novatel Wireless shall have the
right to acquire Inventory on a monthly basis in an
aggregate amount greater than the amount specified in
paragraphs 4(a) through 4(c) above. In the event Novatel
Wireless orders such greater quantities of Inventory
(from the list set forth in Exhibit B), the Inventory
Purchase Commitment and the amount of the payment
otherwise due and payable to Sanmina for the month
immediately following such purchase shall be reduced in
direct order by the amount of the payment for such
Inventory.
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(h) Failure to submit Purchase Order. Novatel Wireless'
failure to advise Sanmina of the particular Inventory it
wishes Sanmina to ship during a particular month shall
not excuse Novatel Wireless from making the required
payment as specified in paragraphs 4(a) through 4(c)
above. In such event, the Inventory Purchase Commitment
shall be reduced by the amount of the payment received
by Sanmina and Novatel Wireless shall have the right to
order and receive Inventory (the "DELAYED INVENTORY")
valued at the amount of such payment within 10 days
following the date it notifies Sanmina of its order. The
Inventory Purchase Commitment shall not be further
reduced upon shipment of such Delayed Inventory.
(i) Within sixty (60) days after the execution of this
Agreement, Novatel Wireless shall use its best efforts
to advise Sanmina in writing of Two Million Five Hundred
Thousand Dollars ($2,500,000) worth of Inventory for
which it does not anticipate needing in the future. This
Inventory shall be deleted from EXHIBIT B, and Sanmina
shall have the right to sell this Inventory and keep the
proceeds.
(5) In the event that Novatel Wireless fails timely to make
payments to Sanmina pursuant to the Inventory Purchase Commitment, and such
failure continues for a period of five business days following written notice,
given pursuant to Section 8(a) of the Security Agreement, from Sanmina to
Novatel Wireless of such failure, then Sanmina shall have the right to
accelerate the entire outstanding Inventory Purchase Commitment, giving effect
to any reductions then pending pursuant to paragraph 4 above, and declare such
amount then due and payable. If Sanmina accelerates the Inventory Purchase
Commitment, then upon payment by Novatel Wireless in full of the accelerated
amounts, Sanmina shall deliver to Novatel Wireless Inventory, in accordance with
the provisions of paragraph 4, with an Agreed Value equal to the amount due and
payable.
(6) Novatel Wireless shall have no right to offset any amount
owing pursuant to Inventory Purchase Commitment with any other amounts that
Sanmina may owe to Novatel Wireless, but the Inventory shall be subject to the
repair and warranty provisions attached hereto as EXHIBIT C.
(7) In the event that purchase obligations remain outstanding
under the Inventory Purchase Commitment and Sanmina and Novatel Wireless
mutually agree in writing that they desire that Sanmina manufacture finished
goods for Novatel Wireless, then (i) the Parties shall execute such other
mutually agreeable documents or writings necessary to give effect to that
determination consistent with this Agreement, and (ii) Novatel Wireless shall
pay to Sanmina in advance an amount equal to twenty-five percent (25%) of the
cost of the build with the balance of such cost to be paid within thirty (30)
days after the later of Novatel Wireless' actual receipt of such finished goods
from Sanmina or the applicable invoice from Sanmina; provided that, the
applicable invoice shall not be delivered to Novatel Wireless unless Sanmina is
able to ship the finished goods within ten days of delivery of the invoice. In
addition, if Sanmina needs to procure materials from one or more third parties
in order to complete a given build on behalf of Novatel Wireless, Novatel
Wireless shall purchase such required materials
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directly from such third parties and arrange for these materials to be shipped
to Sanmina, or otherwise shall prepay for all such third party required
material. Upon receipt of any such payments by Sanmina for finished goods
(either as an advance or upon completion of the finished goods), the Inventory
Purchase Commitment shall be reduced, to the extent that any Inventory listed on
Exhibit B is used to manufacture such finished goods, by the Agreed Value of
such Inventory attributable to the payment received.
(8) Novatel Wireless and Sanmina hereby agree that each
respectively shall make good faith efforts to cooperate on future builds.
Following the Inventory Period, Novatel Wireless shall continue to use Sanmina
to build Novatel Wireless' CDPD products to the extent the terms and conditions
for such builds are mutually acceptable to Sanmina and to Novatel Wireless.
During the Inventory Period, Sanmina shall have the opportunity to bid on any
and all of Novatel Wireless' new contract manufacturing business.
(9) Novatel Wireless shall grant to Sanmina a security interest
(the "SECURITY INTEREST"), in the form attached hereto as EXHIBIT D, in all
right, title and interest of Novatel Wireless in and to the property described
in Attachment 1 thereto, subject to Sanmina entering into a subordination
agreement reasonably acceptable to Sanmina and Novatel Wireless.
(10) Novatel Wireless will withdraw the Memorandum of Costs
filed in the San Diego Litigation, and hereby releases any claim that is has for
the payment of costs incurred by it in the San Diego Litigation or the Santa
Xxxxx Litigation.
B. Sanmina's Obligations
(1) Within ten (10) business days after the later of (i) the
Escrow Closing Date or (ii) the identification of the specific materials to be
shipped hereunder, Sanmina shall deliver to Novatel Wireless, materials in
Sanmina's inventory, to be selected by mutual agreement of Sanmina and Novatel
Wireless, which have the aggregate value of One Million Dollars ($1,000,000)
("CLOSING INVENTORY"). The Closing Inventory shall not count toward the
fulfillment of the Inventory Purchase Commitment. The value of the materials
will be determined by Agreed Value set forth in EXHIBIT B.
(2) Within two business days after the Escrow Closing Date,
Sanmina shall deliver to Novatel Wireless an executed dismissal with prejudice
of the Santa Xxxxx Litigation, and counsel for Sanmina shall immediately inform
the Court in the Santa Xxxxx Litigation that Sanmina withdraws its Application
For Right To Attach Order and Order For Issuance of Writ of Attachment.
(3) Promptly following the Escrow Closing Date, Sanmina shall
issue to Novatel Wireless a Return Material Authorization number with respect to
those allegedly defective goods identified on EXHIBIT E hereto (the "RMA
GOODS"). In the event Sanmina determines that a portion of the RMA Goods fail to
comply with Sanmina's standard warranty, thereafter, Sanmina shall at no
additional charge to Novatel Wireless use its best commercial efforts to repair
and deliver such repaired goods to Novatel Wireless within ninety (90) days of
this Agreement. In the event Sanmina is unable to repair the RMA Goods under
warranty (after
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using its best commercial efforts to do so), it shall advise Novatel Wireless,
and Sanmina shall have no further obligations to Novatel Wireless with respect
to the RMA Goods. In the event that Sanmina, acting reasonably, determines that
all or a portion of the RMA Goods comply with Sanmina's warranty (e.g., they are
not defective or are not manufactured by Sanmina), then the costs of any
inspection, testing, and transportation of such non-defective (or non-Sanmina
manufactured) RMA Goods to and from Sanmina's facilities shall be borne by
Novatel Wireless, and Sanmina shall have no further obligations to Novatel
Wireless with respect to such non-defective (or non-Sanmina manufactured) RMA
Goods.
C. Mutual General Release
(1) Except with the limitation set forth below in Section
II.C.2, Novatel Wireless on the one hand, and Sanmina on the other hand, on
behalf of themselves, or anyone or any entity that can claim by or through them,
hereby release and forever discharge each other, including their divisions,
affiliates, parents, subsidiaries, predecessors and successor corporations, and
past and present directors, officers, shareholders, agents, servants, employees,
representatives, assigns, heirs, successors in interest, predecessors in
interest, administrators, attorneys, insurers, and lenders, from any and all
claims, demands, and causes of action, obligations, damages and liabilities
whether known or unknown in any way connected with any transactions, affairs or
occurrences between the Parties to date, of every nature, kind and description,
in law, equity or otherwise, which have arisen, occurred or existed at any time
prior to the signing of this Agreement, including but not limited to those which
are in any way connected with or incidental to the allegations presented in, or
which could have been presented in, the San Diego Litigation or the Santa Xxxxx
Litigation.
Novatel Wireless and Sanmina acknowledge and agree that they
have been informed of the provisions of California Civil Code Section 1542, and
do hereby expressly waive and relinquish all rights and benefits that they have
or may have had under that statute, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTION OF THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Novatel Wireless and Sanmina acknowledge the significance and
consequences of such specific waiver of Section 1542, and hereby assume full
responsibility for any damages or losses it may incur as a result of the
execution of this Agreement.
(2) Sanmina's release as provided for in Section C(1) above
shall automatically, and without the need for further action on the part of
either Party become effective if and when the following conditions (the "RELEASE
CONDITIONS") are satisfied: (a) ninety-one (91) calendar days pass following the
date of the filing of a UCC-1 financing statement (the "FINANCING STATEMENT")
with the Secretary of State of the State of Delaware covering the Collateral as
described on Attachment 1 to the Security Agreement (the "FILING DATE"); and (b)
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no bankruptcy, receivership, assignment for the benefit of creditors, or similar
case, matter or proceeding is commenced by or against or with respect to Novatel
Wireless or any affiliate (as defined in 11 U.S.C. Section 101(2)) which might
reasonably be substantially consolidated with Novatel Wireless, prior to
ninety-one (91) calendar days following the Filing Date. Sanmina shall use
reasonable commercial efforts to file the Financing Statement in a timely
manner; provided that, in the event Sanmina does not file the Financing
Statement in a timely manner Novatel Wireless shall be entitled to file the
Financing Statement. If the two conditions are not satisfied, the Release will
never become effective and will be a nullity. While the Release Conditions are
conditions to the effectiveness of the release, they are not conditions to the
other terms of this Agreement.
D. Representation and Warranties of Novatel Wireless
(1) Authorization. All corporate action on the part of Novatel
Wireless, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement, the performance of all
obligations of Novatel Wireless hereunder and the authorization, issuance and
delivery of the Shares has been taken, and the Agreement, when executed and
delivered by Novatel Wireless, shall constitute a valid and legally binding
obligation of Novatel Wireless, enforceable against Novatel Wireless in
accordance with its terms except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, and other laws of
general application affecting enforcement of creditors' rights generally and as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
(2) Valid Issuance of Shares. The Shares, when issued, sold and
delivered in accordance with the terms hereof for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable and free
of restrictions on transfer other than restrictions on transfer under applicable
state and federal securities laws. Based in part upon the representations of
Sanmina in this Agreement and subject to the provisions below, the Shares will
be issued in compliance with all applicable federal and state securities laws.
(3) Governmental Consents. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration or
filing with, any federal or state authority on the part of Novatel Wireless is
required in connection with the consummation of the transactions contemplated by
this Agreement, except for filings pursuant to Section 25102 of the California
Corporate Securities Law of 1968, as amended, and the rules thereunder, other
applicable state securities laws and Regulation D promulgated pursuant to the
Securities Act of 1933, as amended (the "SECURITIES ACT").
E. Representation and Warranties of Sanmina
In connection with the issuance of the Shares pursuant to
Section B(2) hereof, Sanmina hereby makes the following representations and
warranties to Novatel Wireless:
(1) Reliance Upon Sanmina's Representations. Sanmina understands
that the Shares are not currently registered under the Securities Act on the
ground that the issuance of Shares hereunder is exempt from registration under
the Securities Act pursuant to Section 4(2)
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thereof, and that Novatel Wireless' reliance on such exemption is based on
Sanmina's representations set forth herein.
(2) Purchase Entirely for Own Account. Subject to Sanmina's
rights under Section (A)(3) hereof and Exhibit A, Sanmina is acquiring the
Shares for its own account, not as a nominee or agent, and not with a view to
the resale or distribution of any part thereof, and that it has no present
intention of selling, granting any participation in, or otherwise distributing
the same, except pursuant to an effective registration statement under the Act
or an available exemption from the registration requirements of the Act. By
executing the Agreement, Sanmina further represents that (except as provided in
Section (A)(3) herein) it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the Shares.
(3) Receipt of Information. Sanmina has relied upon independent
investigations made by it or its representatives and is fully familiar with the
business, results of operations, financial condition, prospects and other
affairs of Novatel Wireless and realizes that the Shares are a speculative
investment involving a high degree of risk for which there is no assurance of
any return. Sanmina believes it has received all the information it considers
necessary or appropriate for deciding whether to acquire the Shares. Sanmina
acknowledges that in connection with the Agreement, neither Novatel Wireless nor
anyone acting on its behalf or any other person has made, and Sanmina is not
relying upon any representations, statements or projections concerning Novatel
Wireless, its present or projected results of operations, financial condition,
prospects, present or future plans, products and services, or the value of the
Shares or Novatel Wireless' business or any other matter in relation to Novatel
Wireless' business or affairs. Sanmina has had an opportunity to discuss Novatel
Wireless' business management and financial affairs with its management, to
review Novatel Wireless' facilities, and to obtain such additional information
concerning its investment in the Shares in order for it to evaluate the merits
and risks of its investment.
(4) Investment Experience. Sanmina has such knowledge and
experience in financial and business matters and such experience in evaluating
and investing in securities of companies such as Novatel Wireless as to be
capable of evaluating the merits and risks of the investment in the Shares.
Sanmina has the financial ability to bear the economic risk of its investment in
the Shares being acquired under the Agreement, has adequate means for providing
for its current needs and contingencies and has no need for liquidity with
respect to its investment in the Shares.
(5) Accredited Investor. Sanmina represents and warrants that it
is an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D under the Securities Act.
(6) Restricted Securities. Sanmina understands and acknowledges
that the Shares may not be sold, transferred or otherwise disposed of without
registration under the Securities Act or an exemption therefrom, and that in the
absence of an effective registration statement covering the Shares or an
available exemption from registration under the Securities Act, the Shares must
be held indefinitely (subject to Sanmina's rights under Section (A)(3)
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hereof). In particular, Sanmina has been advised or is aware of the provisions
of Rule 144 promulgated under the Securities Act which permit limited resale of
securities purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the availability of certain
current public information about Novatel Wireless and compliance with applicable
requirements regarding the holding period and the amount of securities to be
sold and the manner of sale. Sanmina understands that only Novatel Wireless can
take action to register the Shares.
(7) Restrictive Legend. Sanmina understands that (a) any
registrar or transfer agents for the Shares will not be required to accept for
registration of transfer any Shares except upon presentation of evidence
satisfactory to Novatel Wireless that the restrictions on transfer under the Act
have been satisfied and (b) any Shares in the form of definitive physical
certificates will bear a legend substantially in the form set forth below:
THE SECURITIES EVIDENCED HEREBY WERE ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND APPLICABLE STATE SECURITIES LAWS, AND THE
SECURITIES EVIDENCED HEREBY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. THE HOLDER OF THE SECURITIES
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE
CORPORATION THAT (A) SUCH SECURITIES MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT
(1) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, OR IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE
CORPORATION SO REQUESTS), (2) TO THE CORPORATION
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE. THE
SECURITIES ARE ALSO SUBJECT TO RESTRICTIONS ON
TRANSFER AS SET FORTH IN THE SUBSCRIPTION AND
SECURITIES
Page 10 of 23
PURCHASE AGREEMENT BETWEEN THE COMPANY AND THE
HOLDER PURSUANT TO WHICH THE SECURITIES WERE ISSUED.
F. Binding Effects and Parties Bound
This Agreement and all covenants and releases set forth in this
Agreement shall be binding upon and shall inure to the benefit of the respective
parties, their legal successors, heirs, assigns, partners, representatives,
agents, attorneys, officers, directors, owners, shareholders, employees,
affiliated corporations and business entities.
G. Governing Law, Jurisdiction and Venue
This Agreement shall be construed in accordance with, and be
deemed governed by, the laws of the State of California without regard to
principles of conflict of laws. The parties acknowledge and agree that the state
courts of Santa Xxxxx County, California and the federal courts located in the
Northern District of the State of California shall have exclusive jurisdiction
and venue to adjudicate any and all disputes arising out of or in connection
with this Agreement. The parties consent to the exercise by such courts of
personal jurisdiction over them and each party waives any objection it might
otherwise have to venue, personal jurisdiction, inconvenience of forum, and any
similar or related doctrine.
H. Right to Consult With Attorneys; Terms Understood
The parties acknowledge that each has read this Agreement; that
each fully understands its rights, privileges and duties under this Agreement;
and that each enters into this Agreement freely and voluntarily. Each party
further acknowledges that each has had the opportunity to consult with any
attorney of its choice to explain the terms of this Agreement and the
consequences of signing it.
I. Entire Agreement
The undersigned each acknowledge and represent that no promise
or representation not contained in this Agreement, or in any exhibit, has been
made to them, and that this Agreement, together with any exhibits, contains the
entire understanding and agreement between the parties and it contains all terms
and conditions pertaining to the compromise and settlement of the disputes
referenced in the Agreement. The undersigned further acknowledge that the terms
of this Agreement are contractual and not merely a recital, and that this
Agreement is fully integrated.
J. Severability
In the event that any provision or obligation under this
Agreement shall be invalid, illegal, or unenforceable, the provision or
obligation will be severed from the Agreement, and the rest of the Agreement
shall remain valid, legal and enforceable.
Page 11 of 23
K. No Presumption Against Drafting Party
This Agreement and the provisions contained in this Agreement
shall not be construed or interpreted for or against any party because that
party drafted or caused the party's legal representative to draft any of the
provisions.
L. Costs and Fees
The parties to this Agreement will not seek to recover from any
other party to this Agreement their costs and expenses that were incurred in
connection with the San Diego Litigation and the Santa Xxxxx Litigation. If any
legal action is commenced to interpret, enforce, or recover damages for the
breach of any term of this Agreement, including the releases contained herein,
the prevailing party shall be entitled to recover reasonable attorney fees
incurred in connection with that action, in addition to costs of suit.
M. Amendments
This Agreement cannot be modified or amended in any way, except
in writing, signed by the party to be charged.
N. Additional Documents
The parties agree to execute any and all additional documents
reasonably necessary to complete and document this Agreement.
O. Counterparts
This Agreement may be executed in counterparts, all of which,
when taken together, shall constitute one agreement, with the same force and
effect as if all signatures had been entered on one document.
P. Confidentiality
The Parties further agree that as part of the inducement for the
consideration given for this Agreement, neither will disclose or authorize
anyone else to disclose the existence of this Agreement or any of its terms to
any other person without prior written approval of the other Party, which
approval shall not be unreasonably refused, conditioned or delayed, except that
the Parties may disclose the existence of this Agreement and the material terms
therein (i) if required by law; (ii) if a press release or a form filed with the
Securities and Exchange Commission, or (iii) to such Parties attorneys,
advisors, agents, representatives, employees, underwriters, insurers, investment
bankers, etc; provided, however, that, prior to disclosing the Agreement or the
terms therein under Sections (i) or (ii), the disclosing Party shall obtain the
prior written approval of the other Party, which approval shall not be
unreasonably refused, conditioned or delayed. If either Party discloses the
existence of this Agreement or any of its terms to any of the aforementioned
persons, such Party shall inform them of this confidentiality provision and
instruct them not to disclose the existence of this Agreement or any of its
terms to anyone else. Any disclosure of the existence of this Agreement or any
of its terms by anyone (except as permitted hereunder) shall be considered a
violation of this confidentiality provision.
Page 12 of 23
If either Party is served with a subpoena, which seeks documents or information
relating to this matter, including but not limited to this Agreement, such Party
will notify each other before producing any documents pursuant to said subpoena.
IN WITNESS WHEREOF, duly authorized representatives of the
Parties have executed this Agreement on the dates indicated below.
Dated: January 12, 2002 By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Senior Vice President, Finance and
Chief Financial Officer
Novatel Wireless, Inc.
Dated: January 12, 2002 By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxx
Title: Vice President & Corporate
Counsel
Sanmina-SCI Corporation
Dated: January 12, 2002 By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title:
Sanmina Canada ULC
APPROVED AS TO FORM:
Dated: January 12, 2002 XXXXXX & XXXXXXX
By:/s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Attorneys for Novatel Wireless, Inc.
Dated: January 12, 2002 WILSON, SONSINI, XXXXXXXX & XXXXXX
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx, Member
Attorneys for Sanmina-SCI Corporation
and Sanmina Canada ULC
Page 13 of 23
Attachments:
EXHIBIT A
Registration of Shares
EXHIBIT B
Sanmina's Agreed Value
EXHIBIT C
Warranty
EXHIBIT D
Form of Security Agreement
EXHIBIT E
List of RMA Goods
Page 14 of 23
EXHIBIT A
REGISTRATION OF SHARES
1.1 Novatel Wireless shall:
(a) subject to receipt of necessary information from Sanmina,
prepare and file with the Securities and Exchange Commission
(the "SEC") no later than twenty (20) calendar days after the
date of this Agreement, a registration statement on Form S-3
(the "REGISTRATION STATEMENT") to enable the sale of the Shares
by Sanmina from time to time through the automated quotation
system of The Nasdaq Stock Market or in privately-negotiated
transactions;
(b) use all commercially reasonable efforts, subject to receipt
of necessary information from Sanmina, to cause the Registration
Statement to become effective as soon as practicable, but in no
event later than one hundred eighty (180) calendar days after
the Registration Statement is filed by the Novatel Wireless;
(c) use all commercially reasonable efforts to prepare and file
with the SEC such amendments and supplements to the Registration
Statement and the Prospectus used in connection therewith as may
be necessary to keep the Registration Statement current and
effective for a period not exceeding the earliest of (i) the
first anniversary of the date of this Agreement, (ii) the date
on which Sanmina may sell all the Shares then held by Sanmina
without restriction by the volume limitations of Rule 144(e) of
the Securities Act or (iii) such time as all the Shares issued
to Sanmina hereunder have been sold by Sanmina;
(d) furnish to Sanmina with respect to the Shares registered
under the Registration Statement such number of copies of the
Registration Statement, prospectuses (including supplemental
prospectuses) and preliminary versions of the prospectus filed
with the SEC in conformity with the requirements of the
Securities Act and such other documents as Sanmina may
reasonably request, in order to facilitate the public sale or
other disposition of all or any of the Shares by Sanmina,
provided, however, that unless waived by Novatel Wireless in
writing, the obligation of Novatel Wireless to deliver copies of
prospectuses or preliminary prospectuses to Sanmina shall be
subject to the receipt by Novatel Wireless of reasonable
assurances from Sanmina that Sanmina will comply with the
applicable provisions of the Securities Act and of such other
securities or blue sky laws as may be applicable in connection
with any use of such prospectuses or preliminary prospectuses;
(e) file documents required of Novatel Wireless for normal blue
sky clearance in states reasonably specified in writing by
Sanmina prior to the effectiveness of the Registration
Statement, provided, however, that Novatel
Page 15 of 23
Wireless shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so
qualified or has not so consented;
(f) bear all expenses (other than underwriting discounts and
commissions, if any) in connection with the procedures in
paragraph (a) through (e) of this Section and the registration
of the Shares pursuant to the Registration Statement; and
(g) advise Sanmina, promptly after it shall receive notice or
obtain knowledge of the issuance of any stop order by the SEC
delaying or suspending the effectiveness of the Registration
Statement or of the initiation of any proceeding for that
purpose; and it will promptly use its commercially reasonable
efforts to prevent the issuance of any stop order or to obtain
its withdrawal at the earliest possible moment if such stop
order should be issued.
With a view to making available to Sanmina the benefits of Rule
144 (or its successor rule) and any other rule or regulation of the SEC that may
at any time permit Sanmina to sell Shares to the public without registration,
Novatel Wireless covenants and agrees to: (i) make and keep public information
available, as those terms are understood and defined in Rule 144, until the
earlier of (A) such date as all of Sanmina's Shares may be resold pursuant to
Rule 144(e) or any other rule of similar effect or (B) such date as all of
Sanmina's Shares shall have been resold; and (ii) file with the SEC in a timely
manner all reports and other documents required of Novatel Wireless under the
Securities Act and under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
It shall be a condition precedent to the obligations of Novatel Wireless
to take any action pursuant to this Section that Sanmina shall furnish Novatel
Wireless such information regarding itself, the Shares to be sold by Sanmina,
and the intended method of disposition of such securities as shall be required
to effect the registration of the Shares.
Novatel Wireless understands that Sanmina disclaims being an
underwriter, but Sanmina being deemed an underwriter by the SEC shall not
relieve Novatel Wireless of any obligations it has hereunder.
1.2 TRANSFER OF SHARES AFTER REGISTRATION; SUSPENSION.
(a) Sanmina agrees that it will not effect any Disposition of
the Shares that would constitute a sale within the meaning of
the Securities Act, other than transactions exempt from the
registration requirements of the Securities Act, except as
contemplated in the Registration Statement referred to in this
Section and as described below, and that it will promptly notify
the Novatel Wireless of any changes in the information set forth
in the Registration Statement regarding Sanmina or its plan of
distribution.
(b) Except in the event that paragraph (c) below applies, the
Novatel Wireless shall: (i) if deemed necessary by Novatel
Wireless, prepare and file from time to time with the SEC a
post-effective amendment to the Registration
Page 16 of 23
Statement or a supplement to the related prospectus or a
supplement or amendment to any document incorporated therein by
reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and so that, as thereafter delivered to purchasers
of the Shares being sold thereunder, such prospectus will not
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; (ii) provide Sanmina
copies of any documents filed pursuant to this Section; and
(iii) upon request, inform Sanmina that Novatel Wireless has
complied with its obligations in this Section (or that, if
Novatel Wireless has filed a post-effective amendment to the
Registration Statement which has not yet been declared
effective, Novatel Wireless will notify the Sanmina to that
effect, will use its reasonable efforts to secure the
effectiveness of such post-effective amendment as promptly as
possible and will promptly notify Sanmina pursuant to this
Section when the amendment has become effective).
(c) In the event: (i) of any request by the SEC or any other
federal or state governmental authority during the period of
effectiveness of the Registration Statement for amendments or
supplements to a Registration Statement or related prospectus or
for additional information; (ii) of the issuance by the SEC or
any other federal or state governmental authority of any stop
order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose; (iii) of
the receipt by Novatel Wireless of any notification with respect
to the suspension of the qualification or exemption from
qualification of any of the Shares for sale in any jurisdiction
or the initiation of any proceeding for such purpose; or (iv) of
any event or circumstance which necessitates the making of any
changes in the Registration Statement or prospectus, or any
document incorporated or deemed to be incorporated therein by
reference, so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or
any omission to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and that in the case of the prospectus, it will not
contain any untrue statement of a material fact or any omission
to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; then
Novatel Wireless shall promptly deliver a certificate in writing
to Sanmina (the "SUSPENSION NOTICE") to the effect of the
foregoing and, upon receipt of such Suspension Notice, Sanmina
will refrain from selling any Shares pursuant to the
Registration Statement (a "SUSPENSION") until Sanmina's receipt
of copies of a supplemented or amended prospectus prepared and
filed by Novatel Wireless, or until it is advised in writing by
Novatel Wireless that the current prospectus may be used, and
has received copies of any additional or supplemental filings
that are incorporated or deemed incorporated by reference in any
such prospectus. Notwithstanding the foregoing, Novatel Wireless
may not deliver more than two Suspension Notices in any twelve
month period, and each Suspension Notice may not suspend
Sanmina's ability to sell Shares
Page 17 of 23
pursuant to the Registration Statement for a period of more than
60 calendar days. The aggregate duration of any periods during
which Suspension Notices are in effect shall be added to the
amount of time for which Novatel is required to maintain the
effectiveness of the Registration Statement pursuant to Section
1.1(c) of EXHIBIT A.
(d) Provided that a Suspension is not then in effect Sanmina may
sell the Shares under the Registration Statement, provided that
it arranges for delivery of a current prospectus to the
transferee of such Shares. Upon receipt of a request therefor,
Novatel Wireless will provide an adequate number of current
prospectuses to Sanmina and to any other parties requiring such
prospectuses.
(e) In the event of a sale of the Shares by Sanmina, unless such
requirement is waived by Novatel Wireless in writing, Sanmina
must also deliver to Novatel Wireless' transfer agent, with a
copy to Novatel Wireless, a certificate of subsequent sale so
that the Shares may be properly transferred.
1.3 TERMINATION OF CONDITIONS AND OBLIGATIONS. The conditions precedent
imposed upon the transferability of the Shares shall cease and terminate
as to any particular number of the Shares when such Shares shall have
been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of
disposition set forth in the Registration Statement covering such Shares
or at such time as an opinion of counsel satisfactory to Novatel
Wireless shall have been rendered to the effect that such conditions are
not necessary in order to comply with the Securities Act.
Page 18 of 23
EXHIBIT B
SANMINA'S AGREED VALUE
(TO BE MUTUALLY AGREED UPON, BASED UPON PRIOR LISTS DELIVERED PURSUANT TO THE
SANTA XXXXX LITIGATION AND SAN DIEGO LITIGATION)
Intentionally Omitted.
Page 19 of 23
EXHIBIT C
WARRANTY
Sanmina expressly warrants that each product manufactured by Sanmina and
delivered to Novatel Wireless after the date of this Agreement (excluding
components purchased from third-party vendors ("VENDOR COMPONENTS")) shall be
free from any defects in workmanship for a period of one (1) year from the date
of manufacture of such product. For the purpose of this Section, "workmanship"
shall mean manufacture in accordance with the most current version of IPC-A-600
or IPC-A-610, or Novatel Wireless' workmanship standards set forth in the
Specifications. Warranties on any Vendor Components are limited to the
warranties provided by the respective component manufacturers or vendors, but
Sanmina shall use reasonable commercial efforts to enforce the manufacturers'
warranties on Novatel Wireless's behalf. To the extent such warranties are
transferable, Sanmina shall pass on to Novatel Wireless any unexpired assignable
warranties for any such Vendor Components to Customer until the expiration of
such warranties up to a maximum of one (1) year from the date of manufacture of
the products by Sanmina, whichever period is shorter. As Novatel Wireless' sole
remedy under this warranty, Sanmina will at no charge to Novatel Wireless,
rework, repair, and retest any product returned to Sanmina and found to contain
such defects in workmanship caused by Sanmina. This warranty does not include
Products that have defects or failures resulting from (a) Novatel Wireless'
design of Products including, but not limited to, design functionality failures,
specification inadequacies, failures relating to the functioning of Products in
the manner for the intended purpose or in the specific Novatel Wireless's
environment; (b) accident, disaster, neglect, abuse, misuse, improper handling,
testing, storage or installation including improper handling in accordance with
static sensitive electronic device handling requirements; or (c) alterations,
modifications or repairs by Novatel Wireless or third parties. Novatel Wireless
bears all design responsibility for the Product. Sanmina does not assume any
liability for expendable items such as lamps and fuses. Sanmina reserves the
right to inspect the products and verify that they are manufactured by Sanmina
and are defective and, in the event that Sanmina, acting reasonably, determines
that they are not manufactured by Sanmina or defective, then the costs of any
inspection, testing, and transportation of products to and from Sanmina's
facilities shall be borne by Novatel Wireless. Sanmina's total liability under
this warranty shall be limited to the price of the product supplied under the
Agreement. The warranty hereunder is also limited to items, parts and defects
that are within the capability of existing test equipment and Sanmina's programs
and processes. The performance of any repair or replacement by Sanmina does not
extend the warranty period for any products beyond the period applicable to the
product as originally delivered thereto. Novatel Wireless acknowledges that its
Inventory Purchase Commitment is absolute, and waives any rights it may have
against Sanmina for components purchased by Sanmina from third party vendors
which are no longer within the manufacturers' warranty.
EXCEPT FOR THE EXPRESS WARRANTIES HEREIN, SANMINA EXPRESSLY DISCLAIMS AND MAKES
NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND WHATSOEVER WITH RESPECT
TO THE CONDITION OF THE PRODUCTS OR ANY PARTS OR COMPONENTS THEREOF, EITHER
EXPRESS OR IMPLIED, ARISING BY LAW, IN CONTRACT, TORT, EQUITY OR OTHERWISE,
INCLUDING BUT NOT LIMITED TO ANY OBLIGATION OR LIABILITY OF SANMINA
Page 20 of 23
WITH RESPECT TO ANY WARRANTY AS TO FITNESS FOR USE, CONDITION, SERVICEABILITY,
SUITABILITY, VALUE, DESIGN, OPERATION OR MERCHANTIBILITY, AS THE CASE MAY BE,
ANY IMPLIED WARRANTY ARISING BY STATUTE OR COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OR ANY DAMAGES WHATSOEVER
RESULTING FROM LOSS OF USE, DATA OR PROFITS, EVEN IF SUCH OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; IN NO EVENT SHALL SANMINA'S
LIABILITY UNDER THIS AGREEMENT (WHETHER ASSERTED AS A TORT CLAIM OR CONTRACT
CLAIM) EXCEED THE AMOUNTS PAID TO SANMINA FOR FINISHED PRODUCT HEREUNDER. IN NO
EVENT WILL SANMINA BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY
CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY.
Page 21 of 23
EXHIBIT D
FORM OF SECURITY AGREEMENT
Intentionally Omitted
Page 22 of 00
XXXXXXX X
XXXX XX XXX GOODS
Date of Request: 12/18/2001
---------------- ----------
NOVATEL WIRELESS CONTACT INFORMATION MANUFACTURER INFORMATION
Name: Xxxxxxx Xxxxxx COMPANY: SANMINA
Position: Quality Assurance CONTACT: XXXXX XXXXXXX
Address: 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000 2300 Xxxxxxx 00 Xxxxxx, XX Xxx 0000
City: San Diego CA 92121 Guntersville
Country: USA USA
Phone: X. Xxxxxx, (000) 000-0000 or Xxxx Xxxxxx, (000) 000-0000 (000) 000-0000
Fax: (000) 000-0000 (000) 000-0000
E-Mail: xxxxxxx@xxxxxxxxxxxxxxx.xxx
NOVATEL WIRELESS RMA# N/A
MRB RETURNS TO SANMINA
PART ID PART DESC QTY REJECT COMMENTS
------- --------- ---- ----------------
1016446 CDPD MODEM MODULE NRM-6812SM 47 connector pins to short; wrong firmware version; no
communication; bent connector pins.
01016711 BULK CRADLES MINSTREL III 396 no communication; excessive gap; PRI doesn't match
modem; missing screw; stain
01016810 BULK CRADLES OMNISKY MINSTREL V 25 no communication; antenna cracked
01016815 BULK CRADLES ASSEMBLED OMNISKY MIN V 367 no communication; hot sync; gap; stain; bad
logo; connector loose; rattle
1016683 CDPD MODEM 761 no communication
01016815-101 BULK CRADLE, OMNISKY (MIN V CONEXANT) 400 no communication
01016820 BULK CRADLES NOVATEL MINSTREL V 372 no communication; hot sync; burned; missing
screws; cracked; loose connector; bad antenna
01016820-100 BULK CRADLE AETHER REWORK FUJITSU 31 no communication
01016820-102 BULK CRADLES NOVATEL MIN V (CONEXANT) 10 no communication
01016820-104 BULK CRADLE AETHER REWORK CONEXANT 18 no communication
1017138 ASSY, MERLIN W/PLATINUM ANTENNA 11 antenna
01016955 ASSY, BULK MERLIN 1 Firmware error
01016955-101 ASSY, BULK MERLIN (NO BRANDING) 14 no communication; programming error; not recognized
as a merlin; damaged connector
01016955-102 ASSY, BULK MERLIN NO BRANDING NO ANT 5 low RSSI; missing antenna
1016981 CDPD MODEM MODULE 000 XXX XXXX-XXX
649496 00155 1 CDPD MODEM ASSEMBLY EXPEDITE 70 gap; cracked board,; no communication; loose
screw; warp; missing label.
649496 00317 3 EXPEDITE OEM - CONEXANT 136 gap, missing label; hollow; cracked board; loose
screw; loose connector; burned frame; Scratch
RMA RETURNS TO SANMINA
01016446 CDPD MODEM MODULE NRM-6812SM 271 no communication; no registration
01016711 BULK CRADLES MINSTREL III 152 Thumb traction pad; 14 Shell crack; 11 Gap; 4 Top
Clip; 2 Battery connector pin; 1 Connector; 3
Antenna; 11 Will not connect to the network; 7 No
communication; 1 Wont hold charge; 2 Modem battery
doesn't work; 1 Poor reception; 1 No power; 1 Low
signal; 1 Modem discharges; 1 No battery; 49 (220) no
communication; 15(999) no registration
01016715 BULK CRADLES MINSTREL V REV 1 1 no communication
01016815 BULK CRADLES ASSEMBLED OMNISKY MIN V 37 no communication; no power connector; no
registration; modem card damage; RSSI low; antenna
broken
01016815-101 BULK CRADLE, OMNISKY (MIN V CONEXANT) 411 no communication; no registration; power xxxx; door
latch; hotsync; antenna; bad logo; cracked,
01016820 BULK CRADLES NOVATEL MINSTREL V 124 no communication
01016820-100 BULK CRADLE AETHER REWORK FUJITSU 1 no communication
01016820-102 BULK CRADLES NOVATEL MIN V (CONEXANT) 75 no communication
01016820-104 BULK CRADLE AETHER REWORK CONEXANT 2 no communication
01016955 ASSY,BULK MERLIN 41 no communication
01016683 CDPD MODEM MODULE 1,433 EMG FALL-OUT
01016981 CDPD MODEM MODULE 1,722 EMG FALL-OUT
Page 23 of 23
