PORTIONS OF THIS DOCUMENT INDICATED BY AN [***] HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT OF SUCH INFORMATION.
EXHIBIT 10.20
FIRST AMENDMENT TO THE
DEVELOPMENT AND SUPPLY AGREEMENT DATED FEBRUARY 14, 2003
BETWEEN
BRIGHTSTAR CORP. AND CSI WIRELESS LLC
This Amendment ("Amendment") to the Development and Supply Agreement dated
February 14, 2003 ("Original Agreement") is between. Brightstar Corp., a
corporation incorporated and existing under the laws of Delaware, U.S.A., with
its principal place of business located at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇.▇.▇. ("Brightstar") and CSI Wireless LLC, a corporation incorporated
and existing under the laws of Delaware, U.S.A, with its principal place of
business located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇.
("CSI").
The effective date of this Amendment will be September 16, 2003 ("Effective
Date").
The parties agree that the provisions of the Original Agreement will apply to
the GSM/GPRS Product development, marketing, sales and support as modified by
the terms of this Amendment. For purposes of Interpretation, in the Original
Agreement the term "Product" will refer to both the TDMA Product and the
GSM/GPRS Product.
1. RELATIONSHIP AND EXCLUSIVITY
a. This Amendment establishes the terms and conditions pursuant to which
CSI and Brightstar will work together exclusively to establish a leadership
position in the GSM Fixed Wireless Telephone markets (the "GSM Development")
worldwide. The parties will do this by working together to initially develop a
GSM/GPRS model of fixed wireless communications device, hereinafter called
"GSM/GPRS Product", and will also work on enhancements and variants of this
Product to maintain a leadership position in the market. The rights,
responsibilities and obligations of the parties and the general business
structure for the GSM Development are as described in the Original Agreement for
the TDMA Fixed Wireless Telephone. However, any changes or additional
provisions necessary with respect to the GSM Development and the GSM/GPRS
Product are covered by this Amendment. For greater clarity, Schedule F provides
a table which references the provisions of the Original Agreement and whether
those provisions continue to apply with respect to the GSM activities, whether
they have been replaced by provisions in this Amendment, or whether they have
been amended by provisions in this Amendment.
b. During the term of this Amendment, neither party, including affiliates
and subsidiaries, shall develop, manufacture or brand any GSM Fixed Wireless
products, or any Fixed Wireless products incorporating the GPRS technologies,
worldwide other than the GSM/GPRS Product, absent the prior written consent of
the other party, except that CSI will have the right to develop, manufacture,
and sell GSM fixed wireless products to other customers if Brightstar is in
material non-compliance with the provisions of this Amendment or the Original
Agreement, and the non-compliance is not cured within thirty (30) days of formal
written notice detailing with specificity Brightstar's non-compliance.
c. It is the intent of both Brightstar and CSI, that by way of this
amendment, they will work together to have a leading market share position in
the GSM Fixed Wireless market globally. It is understood by both parties that
while Brightstar's customer relationship and distribution
CSI-Brightstar Development and Supply Agreement
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strength is in North and South America today, that Brightstar will work to
establish relationships and distribution in Europe and Asia to support a leading
market share position for the GSM/GPRS product in these markets. Should
Brightstar he unable to secure a leading position for the GSM/GPRS product in
Europe and Asia, CSI and Brightstar will work together to develop alternative
approaches to the sales and distribution of the GSM/GPRS product that may
require changes to the business model that is defined in the Product Transfer
Price and Sharing of Profits detailed in section 10 and Schedule C of this
Amendment.
d. While Brightstar makes no contractual commitment to purchase minimum
volumes of GSM/GPRS Product under this Agreement, it is understood by both
parties that this business arrangement should target a leading market share in
Latin America which is expected to result in a 2004 annual volume in excess of
[***] units.
2. DESIGN AND DEVELOPMENT OF PRODUCT
CSI shall design, develop, manufacture, and test the GSM/GPRS Product in
accordance with the Product specifications set forth in Schedule A. The
development and GSM/GPRS Product approval process will be managed following the
schedule described on Schedule (the "GSM Schedule").
3. THE SPECIFICATIONS FOR THE PRODUCT
The general specifications for the GSM/GPRS Product are included in Schedule A.
4. PRODUCT DEVELOPMENT COSTS
In order to develop and launch the GSM/GPRS Product, Brightstar and CSI agree
that they will each cover 50% of the development and tooling costs related to
development of the GSM/GPRS Product. The estimated GSM/GPRS Product development
and tooling costs is $[***] million and will be shared between the Parties.
Brightstar will pay 50% ($[***]) of these estimated development and tooling
costs to CSI within thirty (30) days of the milestones of the development
program as follows:
1st Payment - $[***] - Execution of this Agreement.
2nd Payment - $[***] - Industrial Design SLA model available.
3rd Payment - $[***] - Completion of Alternative Life Testing.
4th Payment - $[***] - Product customer approval
Last Payment - $[***] to be amortized through the first [***], however,
if [***] units of the GSM/GPRS Product are not delivered under this
Agreement before January 1, 2005, then Brightstar will pay CSI the
unamortized amount of this payment by January 10, 2005.
If the cost of the GSM/GPRS Product development exceeds the estimated costs as a
result of feature changes relative to Schedule A or other factors beyond the
control of CSI, then Brightstar agrees to pay [***]% of the excess over the
$[***] million dollars, except that CSI notify Brightstar if total development
costs are expected to exceed $[***] million dollars and will require Brightstar
approval of costs in excess of this amount, which will not be unreasonably
withheld. Where Brightstar will not provide approval of such excess costs, both
parties will review the features and jointly agree on
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the actions necessary to reduce the increase in total development costs to an
acceptable level. The parties agree that if required, they will work together in
good faith to prepare and execute amendments to this Agreement, or licensing
agreements, that may be necessary to appropriately reflect Brightstar's intended
ownership in the GSM/GPRS Product.
5. PRODUCTION SAMPLES
In accordance with the timing outlined in the GSM Schedule, CSI shall develop
and deliver eight (8) production samples of the Product to Bright-star for
Brightstar's review and for Brightstar to use for engineering evaluation and
product field functional testing.
6. PRODUCT CERTIFICATION - MOTOROLA AND CARRIER TESTING
CSI acknowledges it is aware of the Motorola, Inc. ("Motorola") and the
general Carrier, requirements for product certification of fixed wireless
devices ("Product Certification"). CSI will complete the following steps with
that understanding:
a. By the date specified in the GSM Schedule, CSI shall deliver 30
production samples of the Product to Brightstar for Product Certification.
Brightstar and/or a third party appointed by Brightstar may conduct these tests.
CSI will provide product and technical personnel support during the Product
Certification process.
b. The production samples must pass the Product Certification acceptance
criteria. Brightstar and/or Motorola will approve the production samples, upon
the samples passing the Product Certification acceptance criteria, as determined
by Brightstar and/or Motorola in its reasonable discretion.
c. If software or hardware changes to the production samples are required
to pass the Product Certification acceptance criteria, CSI shall produce the
software or hardware at its expense, and the production samples shall be
re-tested. This process shall continue until the production samples pass the
Product Certification.
d. Brightstar is entitled to purchase at the agreed GSM/GPRS Product
Transfer Price additional pre-production samples for field, tests, operator
approvals, regional type approvals and marketing samples.
7. PRODUCT RELIABILITY TEST - MOTOROLA ACCELERATED LIFE TEST.
CSI acknowledges it is aware of the Motorola Accelerated Life Test process
("Accelerated Life Test") and the requirements to pass this test process. If
Motorola materially changes the current Accelerated Life Test requirements,
Brightstar and CSI agree to share the increased costs equally.
By the date specified in the Schedule, CSI shall deliver 40 production
samples of the GSM/GPRS Product to Brightstar or Motorola, as requested by
Brightstar, for the Accelerated Life Test. CSI will provide product and
technical personnel support during the Accelerated Life Test process. Brightstar
will approve the production samples, upon the samples passing the Accelerated
Life Test, as determined by Brightstar and/or Motorola in its reasonable
discretion. If software or hardware changes to the production samples are
required to pass the acceptance criteria specified for the Accelerated Life
Test, CSI shall produce the software and/or hardware at its expense, and
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the production samples shall be re-tested. This process shall continue until the
production samples pass the Accelerated Life Test criteria.
8. MANUFACTURING LINE CERTIFICATION.
CSI acknowledges it is aware of the Motorola manufacturing line certification
process and the requirements to pass this certification ("Manufacturing Line
Certification"), If Motorola materially changes the current Manufacturing Line
Certification requirements, Brightstar and CSI mutually agree to share the
increased costs equally.
Brightstar and Motorola or a third party appointed by Brightstar will make
an assessment to the Product manufacturing line and will certify the product
line. Brightstar or Motorola or the appointed third party will issue a written
certificate to CSI stating that the Product has been approved for production
(the "Approval Certificate") after all required items have been successfully
completed.
9. TOOLING & TECHNOLOGY
a. Subject to Brightstar completing all NRE payments as outlined in
Section 4, and subject to this Amendment or a successor agreement being in place
between CSI and Brightstar, the industrial design tools that have been developed
for the commercial launch of the GSM/GPRS Product will be owned jointly by CSI
and Brightstar. If future changes are required to the tools, or new tools are
required to be prepared, CSI and Brightstar will share the cost equally such
that the new tools will continue to be jointly owned by CSI and Brightstar. For
the purpose of this Amendment joint ownership will mean that the tools and or
designs that are defined as jointly owned can only be used by the parties
together. Either party may request to use the jointly owned tools or designs
independently, but cannot use them without the written consent of the other
party.
b. Subject to Brightstar completing all NRE payments as outlined in
Section 4, and subject to this agreement or a successor agreement being in place
between CSI and Brightstar, the other outcomes of the GSM/GPRS Product
development activity will be owned as follows;
- the industrial design and MMI (man-machine interface) of the GSM/
GPRS Product will be jointly owned by CSI & Brightstar.
- the GSM/GPRS radio design will be considered jointly owned with
respect to including it in any products targeting the Fixed Wireless
market. More specifically, the GSM/GPRS radio design cannot be
included in the design of any other product intended to be sold in
the Fixed Wireless market without the written consent of both
parties.
c. CSI will maintain exclusive ownership of, and unconditional right to
use, the GSM/GPRS radio design when it is applied to products it develops for
the Telematics, Telemetry and other markets outside of the Fixed Wireless
market.
10. PRODUCT TRANSFER PRICE AND SHARING OF PROFITS
Brightstar will pay CSI for the GSM/GPRS Product in accordance with this Section
10 and Schedule C of this Amendment. CSI and Brightstar will share the profit
earned on sales of the GSM/GPRS product. The sharing of profit will be
administered using the formulas described in this section and in Schedule C of
this Amendment.
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a. For the purposes of the GSM activities defined in this Amendment, CSI
and Brightstar agree that the only incremental costs applicable on the GSM/GPRS
Product will be the following; Licensing and Branding costs, Narbitec Fees,
Warranty Support, Seedsfock and Taxes and Duties, Detailed definitions of these
Incremental costs are provided in Schedule C.
b. Brightstar and CSI agree that the margin sharing formula will be adjusted
quarterly in situations where shipments are materially above or below the
volumes anticipated for the GSM/GPRS Product. Each year CSI and Brightstar will
agree on the annual sales forecast and quarterly shipments. Once the Annual
Sales Forecast and its quarterly shipments are agreed, CSI and Brightstar will
then set the 'Quarterly Shipments Minimum' equal to [***]% of the quarterly
shipments detailed in the Annual Sales Forecast. In the ease where actual
shipments in a quarter are less than the Quarterly Shipments Minimum, the margin
sharing will be adjusted for that quarter by [***]% in favor of CSI (i.e. if the
GSM/GPRS Product shipments for the quarter did not equal or exceed [***]% of the
agreed quarterly shipments, then the margin sharing formula will be calculated
as [***] percent sharing between CSI and Brightstar respectively). In the case
where actual shipments in a quarter exceed the Quarterly Shipments by [***]%,
the margin sharing formula will be adjusted for that quarter by [***]% in favor
of Brightstar for all units shipped beyond [***]% of the quarterly shipments.
c. Brightstar and CSI agree that the Quarterly Shipments Minimum will
begin four months after the first commercial shipment of the GSM/GPRS Product.
d. Brightstar and CSI agree that the Annual Sales Forecast for the
GSM/GPRS Product during calendar year 2004 to be [***] units and during
calendar year 2005 to be [***] units, however, the parties agree that the 2005
volume is estimated at the time of the execution of this Agreement and will be
revised by mutual agreement prior to January 1, 2005.
e. Brightstar and CSI agree that the provisions of this Amendment have
been based on the GSM/GPRS Product shipments of between [***] and [***] units
annually and an end-customer price of greater than $[***] US per unit. If the
end-customer price falls below $[***] per unit, Brightstar & CSI agree to
analyze the new price on the current business model and agree on recommendations
that will address the issues created by the price being below this level, with
the intent of maintaining equal benefit to both parties, Motorola brand licensee
fees negotiation or termination may be presented as an option.
f. CSI and Brightstar agree to provide access to all relevant
documentation and evidence relevant to the costs incurred in the program and
necessary to validate claims made by either party under this Section 10 and
Schedule C of tills Amendment.
11. INTELLECTUAL PROPERTY
a. Except as specifically provided in this Amendment or the Original
Agreement no grant or transfer of any of Brightstar's Intellectual property
rights to CSI is given or intended under this Agreement, including any license
implied or otherwise, and no grant or transfer of any of CSI's Intellectual
property rights to Brightstar is given or intended under this Agreement.
b. With respect to the industrial design of the GSM/GPRS Product, CSI
shall obtain necessary copyright ownership of the Industrial design from its
designers, including a waiver of any moral rights that the designers may have.
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c. CSI agrees to take some necessary precautions to prevent any of
Brightstar's intellectual property rights from being used for any purpose other
than for the design and manufacture of the GSM/GPRS Product by CSI for delivery
to Brightstar.
d. Certain third-party entities own patents that may cover the GSM
standard ("GSM Essential Patents). If the GSM/GPRS Product is sold as a
Motorola-branded phone, then with the exception of the third-party branding and
license rights for GSM Essential Patents to be acquired from Motorola directly
by Brightstar, CSI warrants that it has obtained from third parties the
necessary licenses to design, make, use, offer for sale, and sell the GSM/GPRS
Product to Brightstar, and to grant have made rights to Brightstar.
e. If the GSM/GPRS Product is not to be sold as a Motorola-branded phone,
then with the exception of GSM Essential Patents, CSI warrants that it has
obtained from third parties any other necessary licenses to design, make, use,
offer for sale, and sell the GSM/GPRS Product to Brightstar, and to grant have
made rights to Brightstar.
f. Brightstar agrees to maintain a cross licensing agreement for the
GSM/GPRS intellectual property and essential patents. If the parties agree that
the GSM/GPRS Product will not be sold as a Motorola-branded phone, then
Brightstar will be entitled to claim an Incremental Cost to cover cross
licensing of the GSM/GPRS technologies. This Incremental Cost will be paid to
Motorola by Brightstar for the GSM essential patents. The exact amount of the
Incremental Cost will be based on whatever cost is agreed between Brightstar dna
Motorola.
12. TERMS AND TERMINATION
a. The term of this Amendment will be two and one-half years from the
Effective Date of this Agreement. For greater clarity, the Term and Termination
provisions of the Original Agreement and this Section 12 of the Amendment will
be applied independently for each of the GSM/GPRS Product and the TDMA Product.
As a result, the Original Agreement may terminate with respect to the TDMA
Product, however, all relevant provisions of the Original Agreement and this
Amendment may continue with respect to the GSM/GPRS Product.
b. The term of this Amendment may be extended in accordance with, the
extension provisions of the Original Agreement.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their duly authorized, representatives intending for this Amendment to be
effective as of the date stated on the first page of this Amendment.
BRIGHTSTAR CORP. CSI WIRELESS LLC
By: /s/ R ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------- ------------------------------
Name: R ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO Title: CEO
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SCHEDULE A
PROPOSED GGSM/GPRS PRODUCT GENERAL SPECIFICATION
1.0 USER INTERFACE
Volume control - speaker, speakerphone, keypad, ringer
Call timers
Call forwarding, 3-way calling, call waiting
Caller ID
Call logging - missed, received, dialed
Message waiting indicators - voice and SMS
Menus using soft keys or scroll keys
Speed dial
Voice mail key
Automatic redial function
Single key or any key answer
Security features - keypad locking, call restriction, password setting
Signal strength indicator (RSSI)
Field test menu
Display network operator
Language support - English or Spanish selectable
OPTIONAL:
Predictive text entry
WAP 2.0
Downloadable ring tones
Alarm clock with snooze function
Calculator
Calendar
Call screening
2.0 PHONEBOOK
Phonebook with email address storage (200 entries)
4.0 DATA CAPABILITY
SMS supporting EMS (message concatenation), which supports messaging and email
GPRS class 8
PC interface for internet, email, and messaging.
DB9 and/or USB interface support.
5.0 OTHER FEATURES
Dial tone
Real time clock (no internal battery backup)
SIM application toolkit
DTMF keypad
AMR (adaptive multi-rate voice coding)
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OPTIONAL:
AM/FM radio
Temperature indicator
Smoke alarm
6.0 HARDWARE FEATURES
Large graphic LCD display
Accessible SIM card connector
1900MHz band with capability for 900/1800 band in future product
High power output -- 2W at 900/850 (Class 4), 1W at 1800/1900 (Class 1)
Speakerphone (full duplex)
PC data interface for GPRS data, data rates supported up to class 8
Optional:
PC keyboard Interface
2W at 1900 (Class 3)
Dual band (850/1900), Tri-band (900/1800/1900), or quad-hand (850/900/1800/1900)
support
Polyphonic ring tones
Touch display
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SCHEDULE B
PROPOSED GSM PROJECT SCHEDULE
The following are the major milestones for the project.
FIRMWARE/SOFTWARE DATE
MMI - PS
Document detailed specifications and feature list 5/16/03
Detail complete "look and feel" 6/13/03
Document user interface (each screen, keypress, etc.) 10/24/03
Document firmware architecture (i.e. API, layers, etc.) 11/21/03
Alpha release 1/30/04
User Interface approved 2/27/04
Beta release 3/26/04
PLASTICS DATE
Industrial design 10/3/03
SLA model 11/21/03
Industrial design approved 1/26/04
Tool ready ' 3/1/04
RADIO BOARD DESIGN DATE
1st prototype 12/19/03
2nd prototype 1/16/04
TESTING, APPROVALS, AND PRODUCTION DATE
First call 12/19/03
Initial field test - Bay area 2/6/04
CSI DVT 4/23/04
FTA 4/23/04
Carrier test 5/7/04
Motorola ALT
1st ALT 3/15/04
2nd ALT 4/14/04
3rd ALT 5/14/04
Production Start, first commercial shipment 5/17/04
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SCHEDULE C
PRICING AND BUSINESS MODEL
I. GSM/GPRS PRODUCT TRANSFER PRICE - GSM/GPRS Product will be sold by CSI to
Brightstar at a price calculated as follows:
GSM/GPRS GSM/GPRS CSI
Product Product Incremental
Transfer = Manufacturing + Costs
Price Cost Per Unit
Per Unit
II. DEFINITIONS:
A. GSM/GPRS PRODUCT MANUFACTURING COST PER UNIT means the direct invoice
presented to CSI by the contract manufacturing company to manufacture and
deliver a GSM/GPRS Product to the Delivery Point. This agreement is based on
achieving a Product Manufacturing cost of $[***]-[***]US, based on
manufacturing the product in Mexico. It is understood that cost reductions
should be achieved for manufacturing products in Asia, assuming that volumes and
import regulations Diake this possible.
B. INCREMENTAL COSTS means the total of CSI Incremental Costs and the Brightstar
Incremental Costs as defined in this Exhibit C.
C. CSI INCREMENTAL COSTS means the mutually agreed costs expected to be incurred
by CSI for the following activities:
1. Seedstock.
D. CSI INCREMENTAL COSTS PER UNIT means the result obtained when the CSI
Incremental Costs are calculated on a per unit basis.
E. BRIGHTSTAR INCREMENTAL Costs means the mutually agreed costs expected to be
incurred by Brightstar for the following activities:
1. Licensing and Branding,
2. Warranty Support,
3. Taxes, duties and other government imposed fees, where applicable, and
4. Narbitec Fees.
F. BRIGHTSTAR INCREMENTAL COSTS PER UNIT means the result obtained when the
Brightstar Incremental Costs are calculated on a per unit basis.
G. CSI GROSS MARGIN means [***]% of the Margin Per Unit.
H. MARGIN PER UNIT means the result obtained in the following pro forma
calculation for the following six month period:
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Selling Price per unit XXXX
Less:
Product Manufacturing Cost per Unit (XXX)
CSI Incremental Costs per Unit (XXX)
Brightstar Incremental Costs per Unit (XXX)
Equals:
Margin Per Unit XXX
I. THE SELLING PRICE PER UNIT means the end customer selling price for each
customer.
III. OTHER MATTERS
A. MANUFACTURING CHARGES. For purposes of estimating the Product Manufacturing
Costs, CSI will use standard costs quoted by its external manufacturer. The
following manufacturing costs will be mutually reviewed and upon agreement
shared equally by the parties:
Positive or negative purchase price variances,
Idle time charges, or
Other manufacturing charges.
Where such amounts are incurred, CSI will invoice Brightstar and Brightstar will
pay any such invoiced amounts within thirty (30) days of receipt of the invoice,
except that Brightstar will have no obligation for manufacturing charges which
arise due to GSM/GPRS Product design or CSI's failure to prudently manage the
external manufacturer.
B. COST DEFINITIONS. For purposes of this Agreement, the categories of
incremental costs are defined as follows. For greater certainty, it is
understood that these cost categories represent incremental costs associated
with carrying on the business activities described in this Agreement and should
include no allocations for overhead, facilities and any other administrative
items.
CSI Incremental Costs:
1. "Seedstock" means the direct cost to manufacture and deliver the
seedstock ([***]% free units) required per Section 24(c) of the
Original Agreement.
Brightstar Incremental Costs:
1. "Licensing and Branding" means the cost associated with the royalty
fees paid to Motorola, Inc. for the use of its GSM technology
patents, the use of its brand. Said " Licensing and Branding " Cost
is under negotiation and is expected to be in the range of [***]% -
[***]% of the product sales price to Brightstar's customer. The
Product Transfer Pricing calculations will reflect the actual final
negotiated cost.
2. "Warranty Support" means the cost associated to provide the consumer
warranty service on the GSM/GPRS Product. Said "Warranty cost is
[***]% of the Product Transfer Price
3. "Taxes and Duties" means the cost associated with the payment of
import duties when the GSM/GPRS Product is imported in a country by
Brightstar or its subsidiaries.
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4. "Narbitec Fees" means the cost to be paid by Brightstar to Narbitec
LLC for certain management costs associated with the GSM/GPRS
activities. Said "Narbitec Fees" are 1% of the product sales price
to Brightstar's customer.
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SCHEDULE D
LONG LEAD PARTS
To be Inserted when complete.
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SCHEDULE E
SERVICE AND REPAIR
1. Lists of components, assembly, service tools and equipment parts,
including supplier address, contact person, phone and fax number;
2. Assembly and service tool mechanical drawings indicating materials and
dimensions;
3. A minimum of two completes sets of service assemblies and service tools
for each instructor attending the first training class;
4. GSM/GPRS Product (including accessory) and component specifications,
blueprints, drawings and samples;
5. Schematics and overlays with troubleshooting waveforms;
6. Troubleshooting flow charts and documentation detailing test mode and test
commands;
7. A service and repair manual (including a theory of operation for each
portion of the circuitry), and additional service training aids, for each
Product (including accessories), all written in English;
8. Object code copies of the software used to time, test, control, and
program the GSM/GPRS Product; any technical documentation detailing the
tuning, test, and control specifications; and any specific cables required
for to cables to tune, test, control, and program the GSM/GPRS Product, to
be delivered at least sixty (30) days prior to the first GSM/GPRS Product
shipment, to enable Brightstar to develop automated service test programs;
9. A minimum of five sets of service cables for the GSM/GPRS Product,
together with cabling diagrams to be delivered at least thirty days prior
to the first Product shipment to enable Brightstar to construct additional
sets;
10. A minimum of five software flash boxes/cables with schematics (including
board artwork layouts, software, etc.) to be delivered at least sixty 30
days prior to the first Product shipment to enable Brightstar to construct
additional boxes and conduct field acceptance testing;
11. Whatever other technical information or equipment is required for
Brightstar's testing, programming, service, or repair of the Products
(including accessories), or completion of the assembly of SKD Product; and
12. A minimum of 5 sets of software product support tools to control ID
transfer and flexing, including, cables or interface units required to
perform these operations.
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SCHEDULE F
AGREEMENT CROSS REFERENCE SCHEDULE
For clarity, the following table cross references the Sections of the Original
Agreement and describes whether the provisions of the Original Agreement
continue to apply with respect to the GSM/GPRS Product or whether the provisions
of this Amendment replace or amend the referenced Section with respect to the
GSM/GPRS Product.
SECTION TITLE TREATMENT FOR GSM/GPRS PRODUCT
1. Relationship and Two-Way Exclusivity Section replaced by Section 1 of this Amendment
2. Design and Development Section replaced by Section 2 of this Amendment
3. The Specifications for the Product Section replaced by Section 3 of this Amendment
4. Product Development Costs Section replaced by Section 4 of this Amendment
5. Production Samples Section replaced by Section 5 of this Amendment
6. Product Certification Section replaced by Section 6 of this Amendment
7. Product Reliability Test Section replaced by Section 7 of this Amendment
8. Manufacturing Line Certification Section replaced by Section 8 of this Amendment
9. Purchase of Production Units; Continues as written, except that in Subsection 9(b),
Product Configuration the reference to annual volumes is not relevant to this Amendment
10. Materials and Components Subsections 10(a) and (b) continue as written, however,
Subsection 10(c) is replaced by Subsection 9(a) of this Amendment.
11. Spare Parts and Replacement Continues as Written
Units Inventory
12. Product Transfer Price and Section amended by Section 10 of this Amendment with respect
Sharing of Profits to GSM/GPRS activities
13. Payment Continues as written, however, references to items revised
by this Amendment are replaced appropriately
14. Purchase Orders, Acceptance and Continues as Written
Forecasts
15. Cancellation of Orders Continues as Written
16. Packaging Continues as Written
17. Shipping Continues as Written
18. Export/Import Continues as Written
19. Labels & Markings Continues as Written
20. Title and Risk of Loss Continues as Written
2l. Quality Control, Inspection and Continues as Written
Out-of-Box Testing
22. Insurance Continues as Written
23. Reliability and Failure Rates Continues as Written
24. Warranty Continues as Written
25. Field Service Support Continues as Written
26. Intellectual Property Continues as Written
27. Trademarks Continues as Written
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28. Indemnification Continues as Written
29. Limitation of Liability Continues as Written
30. Information Sharing Continues as Written
31. Terms and Termination Section replaced by Section 12 of this Amendment
32. Compliance with Laws Continues as Written
33. Force Majeure Continues as Written
34. Contractual Relationship Continues as Written
35. Independent Contractors Continues as Written
36. Notices Continues as Written
37. Governing Law, Jurisdiction, Continues as Written
And Dispute Resolution
38. Assignment Continues as Written
39. Section Headings Continues as Written
40. Severability Continues as Written
41. Confidentiality of Agreement Continues as Written
42. Waiver and Ammendments Continues as Written
43. Publicity Continues as Written
44. Entire Agreement Continues as Written
Exhibit A Product Requirements Exhibit replaced by Schedule A of this Amendment
Exhibit B Project Schedule Exhibit replaced by Schedule B of this Amendment
Exhibit C Pricing and Business Model and Exhibit replaced by Schedule C of this Amendment
Configuration
Exhibit D Long Lead Parts Exhibit replaced by Schedule D of this Amendment
Exhibit E Service and Repair Exhibit replaced by Schedule E of this Amendment
CSI Wireless--Brightstar Development and Manufacturing Agreement - Home Run
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