EXHIBIT 10.24
E-TEK DYNAMICS, INC.
DISTRIBUTORSHIP AGREEMENT
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THIS DISTRIBUTORSHIP AGREEMENT ("Agreement") is made and entered into this
3rd day of March, 1998, by and between E-TEK Dynamics, Inc., a California
corporation ("Company") and Walsin Lihwa Corp., a Taiwanese corporation
("Distributor").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Company engineers, designs and manufactures certain fiber optic
components, devices and related systems, instruments and equipment; and,
WHEREAS, Distributor possesses the appropriate facilities and ability to
promote the sale and use of products manufactured by Company, and is desirous of
developing demand for and selling such products in the territory hereafter
described; and,
WHEREAS, Company wishes to appoint Distributor to develop demand for and
sell certain of Company's products in such territory on the terms and conditions
set forth herein.
NOW, THEREFORE, for good and valuable consideration, including the mutual
promises and representations contained herein, the parties hereto agree as
follows.
A G R E E M E N T
1. Incorporation of Recitals. The parties hereby acknowledge the accuracy
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of the foregoing recitals and incorporate each of them by reference in this
Agreement.
2. Definitions.
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a. Products. "Product(s)" shall mean such of Company's devices,
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components, systems, instruments and/or equipment that are manufactured for
sale, except for those items, if any, that are listed on Exhibit A, attached
hereto. Products may be deleted from, or, upon three months' notice, added to,
Exhibit A by Company, without liability or obligation, from time to time in its
sole discretion. Company shall provide three months' notice before discontinuing
the production and/or sale of any of its products.
b. Exclusive Territory. "Exclusive Territory" shall mean those
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countries or geographic areas, if any, identified as such on Exhibit B attached
hereto.
c. Nonexclusive Territory. "Nonexclusive Territory" shall mean those
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countries or geographic areas, if any, identified as such on Exhibit B attached
hereto.
d. Territory. "Territory" shall mean all those countries or
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geographic areas identified on Exhibit B attached hereto.
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3. Appointment And Authority.
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a. Appointment. Subject to the terms and conditions contained
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herein, Company hereby appoints Distributor as a distributor of Company's
Product(s) in the Territory, and only in the Territory, and Distributor hereby
accepts such appointment; provided, that Distributor's appointment and right to
distribute Products in Taiwan shall not be effective until after January 1,
1999. Company agrees to sell Product(s) to Distributor, and Distributor agrees
to purchase the same from Company for resale, under the terms and conditions of
this Agreement.
b. Exclusive Territory. Distributor shall not, without first
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obtaining Company's written consent, market or sell Products in the Exclusive
Territory to the entities or classes of entities identified in Exhibit C
attached hereto, as well as to their respective parents, subsidiaries,
divisions, affiliates and successors (collectively, the "Excluded Customers").
Company shall have the right, from time to time in its discretion upon sixty
days' written notice, to designate additional entities as Excluded Customers on
Exhibit C. In the event that any additional entity is so hereafter designated,
then Company shall remit to Distributor a payment equal to ten percent (10%) of
the net revenues received by Company for any sales of Products made to such
entity within twelve months following the effective date of such designation.
Except as so expressly provided, Company shall owe no compensation or other
remuneration to Distributor for sales of Products by Company or third parties to
any Excluded Customers.
c. Nonexclusive Territory. Company reserves the right, without any
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compensation or other remuneration owing to Distributor, to sell the Products in
the Nonexclusive Territory on its own behalf and/or appoint third parties to
sell, or assist in the sale of, Products in the Nonexclusive Territory.
d. Competing Products. Distributor hereby agrees to refrain from
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representing, promoting, selling or offering for sale during the term of this
Agreement, either directly or indirectly (such as through an entity that
controls, is controlled by, or is under common control with, the Distributor),
any goods, articles or product lines which compete with the Products.
Notwithstanding the foregoing, Distributor shall be entitled to sell any such
competing products to: such entities that are Excluded Customers at the time of
such sale; or, to any entity located outside of the Exclusive Territory,
provided that such entity does not control, is not controlled by, or is not
under common control with, any entity (other than an Excluded Customer) within
the Exclusive Territory.
e. Best Efforts. Distributor shall use its best efforts to enact and
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carry out a merchandising policy designed to preserve the goodwill that is
presently associated with the name and reputation of Company and the Products.
Company agrees to use reasonable efforts to fill orders placed by Distributor;
provided, that the parties acknowledges that lead time will vary according to
manufacturing and other conditions and that all delivery dates announced by
Company are estimates only.
4. Relationship of Parties.
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a. Independent Contractor. The relationship of Company and
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Distributor is that of independent contractors, and nothing contained in this
Agreement or otherwise is to be construed to (i) give either party the power to
direct or control the day-to-day activities of the other, (ii) constitute the
parties as partners, joint venturers, co-owners or otherwise as participants in
a joint or common
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undertaking, or (iii) allow Distributor to create or assume any obligation on
behalf of Company for any purpose whatsoever. All financial obligations
associated with or related to Distributor's business are the sole responsibility
of Distributor.
b. Distributor's Agreements With Its Customers. All sales and other
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agreements between Distributor and its customers are Distributor's exclusively,
and shall have no effect on the respective obligations of Company and
Distributor under this Agreement. Subject to the rights of the Distributor under
this Agreement, Distributor shall be solely responsible for, and shall indemnify
Company and hold Company harmless from, any and all claims, damages and lawsuits
arising out of the acts of Distributor, its employees and/or its agents.
5. Good Standing: Due Execution. The Company is a corporation duly
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organized, validly existing and in good standing under the laws of the State of
California, U.S.A. Distributor is a business entity duly organized, validly
existing and in good standing under the laws of Taiwan. Each party hereto has
the requisite power to enter into and carry out its respective obligations under
the Agreement. This Agreement has been duly authorized by each of the parties
and, when executed, will become a valid and binding obligation upon each of
them. Neither the execution of this Agreement, nor the consummation of the
transactions contemplated hereunder, will violate or constitute a default under
any agreement or instrument to which Distributor is a party.
6. Prices.
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a. Price. The purchase prices to Distributor for the Products will
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be Company's then-current distributor prices therefor (the "Purchase Price").
The difference between the Purchase Price and Distributor's selling price (which
shall be determined in Distributor's sole discretion) shall be Distributor's
sole remuneration for sales of the Products. Company has the right from time to
time to adjust the Purchase Prices of the Products; provided, that Company shall
use reasonable commercial efforts to attempt to continually reduce the pricing
of the Products. Any such change shall not affect orders by Distributor that
were accepted by Company before such price change was made. Company shall not be
liable to Distributor or to Distributor's customers for any adjustments in the
Purchase Prices.
b. Taxes, Duties And Other Charges. The Purchase Price does not
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include any governmental taxes or other charges, does not include customs
duties, import-export license fees or other import-export charges, and does not
include any other fees, costs or charges imposed by any governmental authority.
Distributor shall bear all such taxes, duties, fees and other charges. When
Company has the legal right or obligation to collect any such costs, the
appropriate amount shall be added to Distributor's invoice and paid by
Distributor. Distributor shall provide Company with any valid exemption
certificates with respect to taxes, duties or other charges that are authorized
by any applicable governmental authority.
7. Payment Terms.
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a. Payment. Distributor shall tender to Company any and all payments
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required to be made within thirty days following the date of the invoice for the
Products shipped. Company may, from time to time in its discretion, require
Distributor to submit a deposit or other satisfactory assurance of payment prior
to or at the time of Company's acceptance of any order for the Products. All
payments by Distributor shall be made in U.S. dollars and shall be effected by
check or wire transfer. Company may,
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at Company's option, delay shipments of Products to Distributor if Distributor
is in default in the performance of any obligation to Company, whether contained
in this Agreement or otherwise.
b. Security Interest. Until the Purchase Price is received by
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Company, Company shall retain a security interest in the underlying Products
delivered and the right to immediate possession thereof. The taking of such
possession shall be without prejudice to any other remedy available to Company.
Distributor shall, from time to time, take any act and execute and deliver any
documents reasonably requested by Company to transfer, create, perfect,
preserve, protect and/or enforce this security interest.
8. Acceptance of Orders. Company shall not be bound by any order for the
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Products placed by Distributor until such order has been accepted by Company.
Upon Company's acceptance, such order shall constitute a binding commitment by
Distributor to purchase and tender payment for the Products in accordance with
the terms and conditions of this Agreement. Except as may be expressly assented
to in writing by the parties, nothing contained in Distributor's order or in any
other document or correspondence by Distributor shall in any way modify, or add
to, the terms and conditions of purchase provided herein.
9. Delivery of Products. Delivery of all Products shall be F.O.B. point
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of shipment, and title to and risk of loss of or damage to the Products shall
pass to Distributor upon Company's delivery thereof to the carrier. Such
delivery shall constitute due delivery of the Products to Distributor. The
prices stated herein do not include shipping, handling, or transportation
(including insurance) costs, which shall all be borne by Distributor. Any and
all shipping dates shall be approximate. All Products shall be free from any
third-party liens or encumbrances, and Distributor shall receive good and
marketable title at the time of delivery.
10. Inspection: Return of Products.
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a. Inspection. Within thirty days after a shipment of Products has
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been delivered to Distributor, Distributor shall provide Company with written
notice of any Products thereof which are nonconforming, and such notice shall
specify the details of the nonconformity. Distributor shall not reject any
shipment unreasonably. Company shall have the right following any rightful
rejection of nonconforming Products to substitute conforming Products within a
reasonable period of time after Company's receipt of the aforesaid notice from
Distributor.
b. Return of Products. Distributor shall not be permitted to return
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any Products for credit or otherwise without first obtaining: (i) Company's
written approval to return such Products (which approval shall not be
unreasonably withheld); and (ii) a return material authorization ("RMA") number
issued by Company. If Company agrees to accept the return of such Products,
Distributor shall bear all costs and expenses of returning the same, and shall
assume all risk of loss thereof until the Products are received at Company's
premises; provided, that if the returned Products are nonconforming or defective
(within the warranty period), then Company shall immediately reimburse
Distributor for such costs and expenses so incurred. If any Products are
returned to Company other than because they are nonconforming or defective
(within the warranty period), then Distributor shall immediately remit to
Company a restocking fee in the amount of twenty percent of the original invoice
price or applicable portion thereof, which shall include the Purchase Price or
applicable portion thereof plus all related costs and expenses incurred by
Company in delivering the Products to Distributor. In
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any event, any and all returned Products must be received by Company in an
unused condition and otherwise in a condition for resale as new merchandise.
11. Warranty. Company warrants for a period of twelve months from the date
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Distributor receives the Products that the same will be free from defects in
materials and workmanship and shall conform to the applicable specifications
that have been previously agreed to by Company. This warranty is subject to
proper installation, operation and maintenance of the Products, and shall not
apply to any Products which have been damaged after delivery to Distributor, or
misused, altered, disassembled or serviced by any person other than Company.
Distributor must obtain an RMA number from Company for the defective or
nonconforming Products, and return such Products to Company, freight prepaid,
within thirty days of receipt of the RMA number, with a detailed statement
describing the alleged defects or non-conformities. Company's sole obligation
under this warranty is, at Company's option, for any such defect or
nonconformity that was present at the time of delivery to Distributor, to repair
or replace the same or refund to Distributor the Purchase Price or applicable
portion thereof. Replacement Products shall be warranted as set forth above.
Defective or nonconforming Products that are repaired or serviced by Company
shall be warranted as provided in this section for either the remainder of the
original warranty period or ninety days after such Products are re-delivered to
Distributor, whichever is later. Company makes no warranties with respect to
items not manufactured by Company and, to the extent lawful, assigns to
Distributor any manufacturer's warranties attached to such items. EXCEPT AS
EXPRESSLY STATED ABOVE, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
12. Additional Obligations of Distributor.
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a. Forecasts. To assist Company in planning and scheduling,
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Distributor shall, from time to time or as reasonably requested by Company,
provide Company with a non-binding forecast showing projected orders for
Products and intended shipment dates. Such forecasts shall be based upon
Distributor's best judgment of future sales and/or purchases within the
Territory.
b. Expenses. Distributor shall be solely responsible for any and all
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costs and expenses incurred by Distributor in the performance of its obligations
hereunder.
c. Marketing Efforts. At all times during the term of this
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Agreement, Distributor shall:
(i) pursue aggressive sales policies and otherwise use best
efforts to realize the maximum sales potential for Products in the Territory;
(ii) develop a marketing plan to determine which entities in the
Territory are in need of the Products, and conduct promotional activities
(including advertising, attendance at trade shows, and similar efforts) geared
toward educating such entities of Company's Products, their functionality and
their advantages over competitive products;
(iii) promptly take all necessary steps to become a competent
source for technical information and answer, to the best of its ability,
questions concerning the Products' use and compatibility with other products;
and,
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(iv) provide and maintain adequate sales facilities, appoint
technical and customer support personnel, and maintain a sufficient inventory of
Products to meet reasonably anticipated demand therefore.
d. Representations. Distributor shall not make any false or
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misleading representations to its customers or others regarding Company or the
Products. Distributor shall not make any representations, warranties or
guarantees with respect to the specifications, features or capabilities of the
Products that are not consistent with Company's documentation accompanying the
Products or Company's literature describing the Products, including warranties
and disclaimers.
e. Export Requirements. Distributor acknowledges that the transfer
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of technology to any foreign national wherever located may be deemed an export
and, as such, may be impermissible without a license from the U.S. Department of
Commerce. Distributor further acknowledges that U.S. Export Regulations prohibit
the export or re-export of certain products and technology to certain countries
and end users. Distributor warrants that it will comply in all respects with all
applicable U.S. export and re-export restrictions and requirements for each of
the Products shipped.
f. Installation and Servicing of Products.
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(i) Distributor shall provide adequate assistance to its
customers in connection with the installation of the Products.
(ii) Distributor shall be responsible for the adequate servicing
of any and all Products sold to its customers. Such customers who contact
Company directly shall generally be referred to Distributor.
(iii) At mutually agreeable times, Company may send its
representatives to Distributor's facilities to provide technical assistance and
training to Distributor. Also at mutually agreeable times, Distributor may send
its employees or representatives to Company's facilities to receive training by
Company. In either event, the traveling party shall be solely responsible for
all costs and expenses relating to the travel, lodging and meals of its
employees and agents.
13. Sales Literature. Company shall provide Distributor with marketing and
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technical information concerning the Products, and reasonable quantities of
brochures, instructional material, advertising literature and other Product
data.
14. Confidentiality. The parties hereby incorporate the terms of their
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September 2, 1997 Mutual Confidentiality Agreement as if fully set forth herein.
In addition, Distributor acknowledges that Company has received and may
hereafter receive from third parties their proprietary information subject to a
duty on Company's part to maintain the confidentiality of such information and
to use it only for certain limited purposes. Distributor agrees that it owes
Company and any such third party, during the term this Agreement and thereafter,
a duty to hold all such information in the strictest confidence and not to
disclose it or any portion thereof to any person, firm, corporation or other
entity, or make use of such information in any way without Company's and third
party's prior written consent.
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15. Term and Termination.
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a. Term and Termination. This Agreement shall continue in full force
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and effect from the effective date hereof until terminated in accordance with
the following:
(i) Either party may terminate this Agreement for convenience upon
sixty days prior written notice to the other party; provided, that: (i) Company
cannot terminate this Agreement for convenience within six months of the
Agreement's effective date; and, (ii) neither party can terminate for
convenience that portion of this Agreement relating to the distribution of
Company's products in Taiwan until after the termination (for any reason) of
that certain March 3, 1998 E-Tek/Walsin Joint Venture Agreement.
(ii) Either party may terminate this Agreement upon written notice to
the other party if such other party breaches any material term, warranty or
condition of this Agreement and fails to cure the same within thirty days of its
receipt of written notice of such breach. Notwithstanding the foregoing, this
Agreement may be terminated by the non-defaulting party immediately upon
written notice, in the event of an irremediable breach of a material term,
warranty or condition by the other party.
(iii) Either party may terminate this Agreement immediately: upon the
other party's cessation of business, election to dissolve, dissolution,
insolvency, inability to pay debts as they become due, or general assignment for
the benefit of creditors; upon the appointment of a receiver or filing of any
bankruptcy petition, whether voluntary or involuntary, on behalf of such other
party; or, if the other party merges into or is acquired by any third party, or
sells substantially all of its assets.
b. Return of Materials. Immediately upon the termination of this
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Agreement for any reason, Distributor shall discontinue holding itself out as an
authorized distributor of Company. All trademarks, trade names, patents,
copyrights, designs, drawings, formulas or other data, photographs, samples,
literature and sales aids of every kind shall remain the property of Company,
and shall be returned to Company at Distributor's expense within fifteen days of
the Agreement's termination.
c. Non-Liability of Company. In the event of termination of this
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Agreement for any reason, Company shall not be liable to Distributor for
compensation, indemnification, reimbursement or damages on account of the loss
of customers, prospective profits on anticipated sales or on account of
expenditures, inventory, investments, leases or commitments made in connection
with this Agreement or in connection with the business or goodwill of
Distributor. Termination of this Agreement shall not, however, relieve either
party of obligations incurred prior to termination.
16. Trademarks; Intellectual Property Rights.
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a. During the term of this Agreement, Distributor shall have the
right to indicate to the public that it is an authorized distributor of the
Products in the Territory under the trademarks and trade names that Company may
adopt from time to time. Without the prior written consent of Company,
Distributor shall not remove or alter any trademark or trade name applied to the
Products.
b. Company asserts all right, title and interest in and to the
product lines that include the Products, and in and to all of Company's patents,
trademarks, trade names, inventions, copyrights, know-how, trade secrets and all
other intellectual property rights. Distributor does not acquire by virtue
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of this Agreement or otherwise any right, title or interest in or to Company's
intellectual property rights, other than the limited right during the term of
this Agreement to use such property rights to the extent expressly set forth
herein and only for the purposes herein set forth. Upon termination of this
Agreement for any reason such authorization shall immediately cease.
c. Distributor shall promptly notify Company of any and all actual
or suspected infringements, imitations, illegal uses or misuses of Company's
trademarks or other intellectual property rights that may come to Distributor's
attention, and to assist Company with the protection of such rights.
17. Infringement Indemnification. Company shall indemnify Distributor
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against any liabilities arising from the infringement of any intellectual
property rights of any third party(ies) due to the sale to Distributor of the
Products where such liabilities were the result of infringement on Company's
part; provided that: Distributor notifies Company immediately of any such claim;
Company shall have the right to exercise full control of the defense thereof;
Distributor fully cooperates with such defense; such obligation to indemnify
will cover only those claims that relate directly to the Products as originally
manufactured by Company, and not to any claims that relate in whole or in part
to any correction, modification or addition thereto that is made by anyone other
than Company, or to any specification(s), technology or devices supplied by any
third party; and, Distributor shall not have breached any of the representations
or warranties, or failed to have performed any of the obligations, contained
herein. Company shall have the right to procure a license from any person
claiming or likely to claim infringement, or to modify the Products to avoid
such a claim, and any such actions or related actions by Company shall not be
deemed to constitute a breach of this Agreement. THE FOREGOING IS COMPANY'S
EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIMS OR ACTIONS ARISING
FROM COMPANY'S ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY. COMPANY EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES,
WHETHER EXPRESS OR IMPLIED, RELATING TO CLAIMS THAT THE PRODUCTS, OR ANY OF
THEM, INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS.
18. Limitation of Liability. IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY
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TO DISTRIBUTOR UNDER ANY CAUSE OF ACTION FOR ANY SPECIAL, INDIRECT OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS)
THAT RELATE IN ANY WAY WHATSOEVER TO THIS AGREEMENT, WHETHER OR NOT COMPANY HAS
BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
19. Notices. Any notice required or permitted to be given hereunder shall
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be in writing, unless otherwise provided herein, shall be delivered either by
overnight mail or by facsimile, and shall be addressed as follows:
If to Company: If to Distributor:
E-Tek Dynamics, Inc. Walsin Lihwa Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Section 3
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ East Road
USA Taipei, Taiwan
Fax ▇▇▇.▇▇▇.▇▇▇▇ Fax ▇▇▇.▇.▇▇▇▇.▇▇▇▇
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Any notice given as aforesaid shall be deemed to have been effectively
given and received (i) if sent by overnight mail, on the date of such delivery,
or, (ii) if sent by facsimile, on the date of transmission. Each party may
change its respective address of service or facsimile number by written notice
given as provided above.
20. Force Majeure. Company shall not be deemed in breach hereof, and shall
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not be liable for, any delay or default in delivery of any Products if such
delay or default is due in whole or in part to any cause(s) beyond Company's
reasonable control. In such an event, Company shall have such additional time
within which to perform as may be reasonably necessary under the circumstances.
21. Construction of Agreement. Each party agrees that any statute, rule or
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doctrine regarding the interpretation of contracts against a particular party,
including California Civil Code Section 1654, shall not apply to this Agreement.
22. Arbitration. Any and all disputes, claims or controversies, whether of
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law or fact and of any nature whatsoever, arising from, respecting, or relating
to, this Agreement shall be decided through binding arbitration. If E-Tek
initiates the arbitration, then such arbitration shall be conducted in Taipei,
Taiwan in accordance with the rules of the Commercial Arbitration Association of
Taiwan. If Walsin initiates the arbitration, then such arbitration shall be
conducted in San Jose, California in accordance with the rules of the American
Arbitration Association. Any controversy concerning whether an issue is
arbitratable shall be determined by the arbitrator, but such arbitrator may not
limit, expand or otherwise modify the terms of this Agreement. The parties,
their respective representatives, and the arbitrator shall, unless otherwise
required by applicable law or ordinance, hold the existence, content, and result
of the arbitration in confidence. The arbitrator shall be able to decree any and
all relief of an equitable or legal nature, subject to the limitations on
liability provided in this Agreement. The decree or judgment of an award
rendered by the arbitrator shall be conclusive and binding, and may be entered
in any court having jurisdiction thereof. The parties may engage in discovery,
and the arbitrator may decide all discovery disputes, in accordance with
California Code of Civil Procedure Section 1283.05, or its replacement. The
arbitrator shall give effect to the applicable statutes of limitations in
determining any claim. The fees and expenses of the arbitrator shall initially
be split evenly between the parties, and each party shall initially bear its own
costs in any arbitration proceeding; provided, however, that the arbitrator
shall award the prevailing party its reasonable attorneys' fees and costs
(including the fees and expenses of the arbitrator) incurred therein. The
institution and maintenance of any civil action for judicial relief or for a
provisional or ancillary remedy shall not constitute a waiver of the right of
either party to submit the dispute to arbitration.
23. Attorneys' Fees. If any legal action is brought for the enforcement of
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this Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs incurred in that action, in addition to any other relief to which
that party may be entitled.
24. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of New York (excluding laws and principles
relating to the conflict of laws), as if made, executed and performed within
that State.
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25. Severability. If any term or provision of this Agreement shall be held
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invalid or unenforceable to any extent, the remainder of this Agreement shall
not be affected and each other term and provision shall be valid to the fullest
extent permitted by law.
26. Headings. The paragraph and subparagraph headings contained in this
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Agreement are for reference only, and shall not be construed as substantive
parts of the Agreement.
27. Entire Agreement: Modification; Waiver. This Agreement constitutes the
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entire agreement between the parties with respect to the subject matter
contained herein and supersedes any and all prior and contemporaneous
agreements, representations and understandings. No supplement, modification or
amendment of this Agreement shall be binding unless executed in writing by the
parties. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party to be charged.
28. Binding Effect; Assignment. This Agreement shall be binding on and
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shall inure to the benefit of the parties and their respective representatives,
successors and permitted assigns; provided, however, that no party shall have
the right to transfer or assign any rights or obligations under this Agreement
without first obtaining the other party's written consent. Any attempted
assignment in violation of this provision shall be void. Notwithstanding the
foregoing. Distributor must fully assign its rights and obligations hereunder to
a third-party Taiwanese company, that is contemplated to be formed by Company
and Distributor ("JV"), immediately upon such JV's incorporation.
29. Counterparts. This Agreement may be executed in counterparts, each of
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which shall constitute an original and all of which shall be one and the same
instrument.
30. Further Assurances. Each party agrees to execute and deliver such
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other and further documents, and perform such other and further acts, as are or
may become necessary or convenient to effectuate and carry out the intent and
purposes of this Agreement.
31. Survival Of Provisions. The respective rights, duties and obligations
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of the parties pursuant to paragraphs 14, 15, 18, 22-24, and 32, inclusive,
among others, shall survive any expiration or termination of this Agreement.
32. Indemnities. Subject to the provisions of paragraph 18, above, and to
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limitations of liability expressly set forth herein, each party hereto shall
indemnify, defend and hold harmless the other party against and in respect of
any and all claims, demands, losses, costs, expenses, obligations, liabilities,
damages, recoveries and deficiencies that the other party shall incur or suffer
by reason of any breach of this Agreement by the indemnifying party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
COMPANY: DISTRIBUTOR:
E-Tek Dynamics, Inc. Walsin Lihwa Corp.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ Yu-▇▇▇ ▇▇▇▇▇
---------------------------- --------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Yu-▇▇▇ ▇▇▇▇▇
President and CEO President
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