EXHIBIT 10.22
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT is entered into as of March 31, 2000 (the "Effective
Date") by and between Endwave Corporation ("Buyer") and TRW Inc., acting through
its Space and Electronics Group ("TRW").
WHEREAS, Buyer desires to purchase, and TRW desires to provide, the
Products as specified in Exhibit 1A to this Agreement and the parties desire to
define the terms and conditions under which the same will be furnished.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND PRIORITY
1.1 DEFINITIONS: The following words and phrases shall have the meanings set
forth below:
AGREEMENT: This Supply Agreement between TRW and Buyer including
the following Exhibits, attached hereto and made a part
hereof:
EXHIBIT 1A: List of Products
EXHIBIT 1B: List of Deliverables, Price, Quantity
Commitments, Delivery Schedule and Buyer's Site
CONTRACT PRICE: Defined in Section 4.1.
DELIVERY DATE(S): Defined in Section 6.1.
PRODUCTS: The products described in Exhibit 1A to
be supplied by TRW.
SITE: Buyer's facility or other location
identified in Exhibit 1B as the
destination to which transportation is
to be arranged for deliverable items.
TRW PLANT: Each of the factories or establishments
of TRW and its suppliers located in the
United States.
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
1.2 PRIORITY: In case of any inconsistencies between this Agreement and any of
the Exhibits, the text of this Agreement shall prevail.
ARTICLE 2
SUBJECT MATTER OF SUPPLY; REQUIREMENTS; USE OF PRODUCTS
2.1 SUPPLY: TRW hereby agrees to sell to Buyer and Buyer hereby agrees to
buy from TRW, on and subject to the terms and conditions contained in this
Agreement, the Products listed in Exhibit 1A.
2.2 REQUIREMENTS: Buyer shall buy from TRW no less than the annual minimum
quantities of Products set forth in Exhibit 1B, and TRW agrees to sell Buyer up
to and including annual maximum quantities of Products set forth in such
Exhibit; provided however, to the extent that Buyer wishes to purchase more than
the annual maximum quantities of the Products as provided in Exhibit 1B, TRW
may, but is under no obligation to, provide Buyer such excess quantities.
2.3 USE OF PRODUCTS: Buyer can use, sell and/or market the Products only in
applications that are intended, by Buyer and/or by Buyer's customer, for
"terrestrial applications." For the purpose of this Agreement, "terrestrial
applications" shall mean applications located up to, and including, one
hundred-thousand (100,000) feet above the surface of the earth. Buyer can only
use or sell the Products as a component in a microwave or millimeter wave module
or outdoor unit; resale of the Products when not incorporated in a transceiver
module or outdoor unit is prohibited without the prior written consent of TRW.
ARTICLE 3
EFFECTIVE DATE AND TERM
This Agreement shall be effective and binding on the parties as of the
Effective Date and shall remain in force and effect until March 31, 2003, unless
the parties hereto choose to extend the term of this Agreement (the period
between the Effective Date and the termination of this Agreement shall be
hereinafter referred to as the "Term").
ARTICLE 4
CONTRACT PRICE, TAXES
TRANSPORTATION, EXPENSES AND CHARGES, ORDERS
4.1 PRICE: Buyer shall pay TRW for the performance of TRW's obligations
hereunder, the prices for Products stated in Exhibit 1B in accordance with the
provisions of Article 5. The aforementioned price is hereinafter referred to as
the "Contract Price."
4.2 TAXES: All taxes (excluding income, but including stamp, withholding,
value
added and turnover taxes), duties, fees, charges, or assessments of any nature
levied by any governmental authority in connection with this transaction,
whether levied against Buyer or TRW, or employees of TRW as a result of Products
provided by TRW under this Agreement, shall be for Buyer's account and shall be
paid directly by Buyer to the governmental authority concerned. If TRW is
required by law or otherwise to pay any such levy and/or fines, penalties, or
assessments in the first instance, or as a result of Buyer's failure to comply
with any applicable laws or regulations governing the payment of such levies by
Buyer, as TRW's exclusive remedy for claims under this Section 4.2, the amount
of any payments so made by TRW shall be reimbursed by Buyer to TRW upon
submission of TRW's invoices and written documentation justifying TRW's
invoices.
4.3 TRANSPORTATION EXPENSES: TRW shall pay for all expenses of handling,
freight, in-transit insurance, and other transportation expenses including,
without limiting the foregoing, all packing and special handling charges for air
shipment incurred in connection with the delivery of Products from the TRW Plant
to the Site.
4.4 ORDERS: For its convenience, Buyer shall use forms to order Products or
to specify subsequent changes to Products which reference this Agreement and
specify the desired delivery date or dates for Products ("Orders"). Any such
order form shall not contain any preprinted or written terms and conditions,
and, to the extent that it does, Buyer and TRW hereby agree that such terms and
conditions of sale shall have not be binding on the parties and that only the
terms and conditions contained in this Agreement shall govern any sale between
the parties regarding the Products.
4.5 ACCEPTANCE OF ORDERS: TRW shall use reasonable commercial efforts
efforts to accept and supply all Orders for Products which Buyer submits
hereunder, and unless otherwise agreed, TRW shall deliver Products so ordered on
or before the delivery dates or during the performance periods specified in each
Order. All preprinted terms and conditions contained in any Order are superseded
by the terms and conditions of this Agreement. Notwithstanding the foregoing,
TRW shall have no obligation to accept and shall not be deemed to have accepted,
unless signed by TRW, any Order (i) for any Products not listed in Exhibit 1A
hereto or revisions thereof; (ii) for any quantity of Products in excess of the
annual maximum quantities specified in Exhibit 1B hereto or revisions thereof;
or (iii) that specifies a delivery date which is less than sixteen (16) weeks
from the date of such Order; provided, however, that Buyer may designate up to
eight (8) lots per calendar year as "Hot Lots", which will be delivered within
[*] of the Order date and which cannot exceed [*] per lot. Such Hot Lots shall
be charged a [*] as further described in Exhibit 1B.
4.6 ORDER PROCEDURE: TRW shall give Buyer written notice of its acceptance
or rejection of any Order within ten (10) working days after receipt of such
Order. If TRW rejects any such Order, it shall specify in such notice the
reasons for rejection.
4.7 SALES FORECASTS: Buyer shall submit to TRW on the Effective Date and
thereafter at thirty (30) days before the start of each calendar quarter during
the term hereof a written forecast of its best estimate of its requirements for
Products during the next four (4) calendar
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
quarters. Such forecast shall list separately for each quarter during the period
covered by the forecast the amount of Products which Buyer expects to require
during such quarter. The parties agree and acknowledge that such forecasts are
only best estimates and, subject to Article 2 hereof, may be altered, exceeded
or reduced as Buyer, in its sole discretion, deems appropriate. Such alteration
of sales forecasts shall not relieve TRW or Buyer from their respective supply
or purchase requirements and obligations as set forth in Article 2 without
written amendment of this Agreement.
ARTICLE 5
PAYMENT
Payment for Products shall be net thirty (30) days after receipt of TRW's
invoice. Payment of other charges, if any, provided for in this Agreement shall
be due and payable within thirty (30) days after receipt of TRW's invoice
therefor. TRW's electronic funds transfer account is as follows:
Bank of America
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telex - MCI #67652
ABA ▇▇▇▇▇▇▇▇▇
TRW Account #06005-04132
ARTICLE 6
SHIPMENT, TITLE, AND RISK OF LOSS; EXPORT OF PRODUCTS
6.1 DELIVERY OF PRODUCTS: TRW shall place Products in the possession of the
carrier at a time and date reasonably calculated to effect delivery to Buyer on
or before the date or dates specified in each Order therefor for delivery to
Buyer, F.O.B. TRW Plant, to the Site specified in Exhibit 1B. TRW shall arrange
for shipment of Products by common carrier to the Site.
6.2 PROTECTION AND PACKING OF THE PRODUCTS: TRW shall arrange to have all
Products suitably packaged in accordance with good commercial practices. Unless
otherwise provided, all packing containers used by TRW shall be non-returnable.
6.3 RISK OF LOSS AND TITLE: Title and risk of loss for Products shall pass
to Buyer on delivery to the carrier at the TRW Plant, notwithstanding any
provisions for payment of freight or insurance by TRW, or the form of shipping
documents, or the breach or default by TRW at the time of loss. Title and risk
of loss of Products sent to TRW for adjustment shall remain with Buyer until
such are received by TRW.
6.4 SHIPPING DOCUMENTS: After Products have been shipped, TRW shall deliver
to Buyer one (1) copy of the signed ▇▇▇▇ of Lading.
6.5 EXPORT OF PRODUCTS: All sales hereunder shall at all times be subject
to the export control laws and regulations of the United States government and
any amendments thereto. Buyer agrees that it shall not make any disposition, by
way of transshipment, reexport, diversion or otherwise, except as such laws and
regulations may expressly permit, of Products, other than in and to the ultimate
country of destination specified in this Agreement or any Order placed
hereunder. Buyer agrees that it shall not knowingly sell, transfer, or deliver,
directly or indirectly, any part or portion of the Products or related
documentation supplied by TRW pursuant to this Agreement to any person or
organization in any country where such sale, transfer, or delivery by Buyer
would be prohibited by law or regulation now or hereafter in effect which
imposes any restrictions on United States trade with foreign countries.
ARTICLE 7
WARRANTY
7.1 WARRANTY:
(A) TRW warrants that each Product shall be free from defect arising
from materials, manufacture and/or workmanship for a period of [*] after
delivery to Buyer. TRW shall, at its option, repair each defective Product or
replace each defective Product with a similar Product, in all cases free from
defect without charge and with reasonable promptness; provided that Buyer
promptly gives TRW notice thereof and the defect is of a type specified in
Attachment C, Document D19715. Visual workmanship criteria for commercial GaAs
IC's is contained in Attachment C, Document D19715. [*] TRW shall make all
repairs or replacements at TRW's factory. TRW shall return replacements for
defective Products to the Buyer at the place where the defective Product was
located when shipped to TRW and shall prepay at its sole expense all freight and
insurance of such return shipment. All defective Products which are replaced by
TRW as herein provided shall become the property of TRW when the replacement
occurs. The warranty specified in this Section 7.1 does not extend (i) to
Products which fail or are damaged due to use or storage by the Buyer in a
manner or environment not conforming to TRW's published instructions and
specifications in effect at the time such Products are delivered to the Buyer;
or (ii) to Products which are modified by the Buyer or any person other than
TRW.
(B) TRW warrants that title to all Products delivered to the Buyer
hereunder will be free and clear of all liens, encumbrances, security interests
and other restrictions.
7.2 EXCLUSION: OTHER THAN THE WARRANTIES SET FORTH IN SECTION 7.1
HEREOF, TRW DOES NOT MAKE ANY WARRANTY, GUARANTEE OR MAKE ANY REPRESENTATIONS,
EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, WHETHER ARISING BY LAW, CUSTOM, CONDUCT OR USAGE OF TRADE,
AND THE RIGHTS AND REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY
OTHER
[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
RIGHT OR REMEDIES.
ARTICLE 8
DELAYS
8.1 FORCE MAJEURE: No failure or omission on the part of either party to
carry out or observe any of the terms or provisions of this Agreement or any
Order hereunder (except the payment of money) shall be deemed a breach of this
Agreement or such Order if same shall arise or result from FORCE MAJEURE or from
any cause reasonably beyond the control of Buyer or TRW, as the case may be,
including but without limitation, acts of God, acts (including delay or failure
to act) of any governmental authority (DE JURE or DE FACTO), war (declared or
undeclared) riot, revolution, fires, labor disputes, sabotage or epidemics.
Should such delay occur, the date or dates of performance by the affected party
shall be extended for a period equal to the number of days during which
performance is so delayed. The affected party shall give the other party written
notice of such delay within five (5) working days after identification of the
delay.
8.2 TRW DELAYS: If at any time TRW discovers that is unable (whether for
reasons set out in Section 9.1 or otherwise) to deliver any Products to Buyer on
the scheduled delivery date, TRW shall give Buyer written notice within ten (10)
days of such discovery, which notice shall specify the delivery date on which
TRW shall be able to deliver such Products to Buyer. If the delivery date
proposed by TRW is more than forty-five (45) days after the scheduled delivery
date, Buyer shall have the right, without liability, to cancel (in whole or in
part) its Order for such Products, by giving TRW notice of cancellation within
ten (10) days of receipt of TRW's notification of delay. To the extent that
there are TRW delays (as described in Section 8.2 hereof) or TRW resulting
delays as described in Section 8.1 hereof, there shall be made equitable
adjustments to the purchasing and pricing provisions hereof.
ARTICLE 9
TRANSFERS AND ASSIGNMENTS
9.1 TRANSFER: Neither party shall, without the consent in writing of the
other party, which shall not be unreasonably withheld, assign or transfer this
Agreement or the benefits or obligations thereof or any part thereof to any
other person other than a subsidiary wholly owned by such party; provided that
this shall not affect any right of either party to assign, either absolutely or
by way of charge, any moneys due or to become due to it or which may become
payable to it under this Agreement; further provided, that no consent shall be
necessary to the extent that either party is acquired by merger or other
acquisition or either party sells all or substantially all of its assets to a
third party.
9.2 RELEASE OF OBLIGATIONS: No assignment or transfer of any right or duty
hereunder by either party shall constitute a novation or otherwise release or
relieve such party of its obligations hereunder.
ARTICLE 10
DEFAULT
10.1 EVENT OF DEFAULT: An Event of Default on the part of either party
shall exist under this Agreement if:
(a) Such party fails to pay the other party any amount required to be
paid hereunder when due and payable and such payment default goes uncured
for thirty (30) days after delivery of written notice of late payment; or
(b) Such party fails to perform its minimum purchase or supply
obligations (as the case may be hereunder) specified in Section 2.2 hereof
during any calendar year during the term hereof, or otherwise fails to
perform any other material obligation required to be performed by it under
any provision of this Agreement within thirty (30) days after the time
specified or within thirty (30) days after written notice from the other
party that such performance has become due; provided, however, Buyer shall
have no right to terminate this Agreement for TRW's default so long as
corrective action is being diligently pursued by TRW in a manner that
demonstrates that TRW's obligations hereunder shall be completed in
sufficient time to allow Buyer to reasonably meet its end-use requirements
for Products without incurring additional costs or penalties (as reasonably
determined by Buyer), and TRW discloses to Buyer in writing such corrective
action(s).
10.2 REMEDIES AVAILABLE FOR DEFAULT: Subject to other provisions hereof
which expressly limit the remedies available hereunder, if an Event of Default
as defined in Section 10.1 exists on the part of either party, then the other
party may terminate this Agreement upon giving written notice of termination and
pursue any other remedies available at law or in equity.
ARTICLE 11
LIMITATION OF LIABILITY
11.1 LIMITATION OF LIABILITY: TRW's liability on any claim of any kind
(excluding bodily injury or death), whether based on contract, warranty, tort
(including negligence), strict liability or otherwise, for any loss or damage
arising out of, connected with, or resulting from this order, or from the
performance or breach thereof, or from all Products covered by or furnished
under this Agreement or any Order thereunder, shall in no case exceed the price
of the specific individual Product which gives rise to the claim.
11.2 DAMAGES: In no event shall either party be liable for any special,
indirect, incidental or consequential damages, however caused, whether by such
party's sole or concurrent negligence or otherwise, including but not limited to
costs and expenses incurred in connection with labor, overhead, transportation,
installation, or removal of Products or substitute facilities or supply sources.
ARTICLE 12
NOTICES
All notices, requests, consents, and other communications required or
permitted to be given under this Agreement must be in writing and mailed by
registered or certified mail to the other party at its respective business
address as follows:
If to TRW: TRW Inc., Space and Electronics Group
Telecommunciation Programs Division
▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: Endwave Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ARTICLE 13
CONTRACT CHANGE PROCEDURE
13.1 CHANGES: Any changes to this Agreement after the Effective Date which
relate to: (i) the deletion of Products; (ii) adding additional Products; (iii)
changing or modifying Products; or (iv) making other changes which do not
materially alter the scope of this Agreement shall be made in accordance with
the procedures set forth in this Article 13.
13.2 CONTRACT CHANGES: On an annual basis, the parties shall revisit the
minimum and maximum quantity commitments and pricing of the Products, as well as
the quantity of Hot Lots permitted hereunder. Based on changes in Buyer's
contracts and production forecasts, the parties may, but shall not be obligated
to, negotiate changes to the production commitments.
13.3 CONTRACT CHANGE NOTICE: If the parties decide to implement a change
request, a standard form Contract Change Notice ("CCN") shall describe the
change. Execution of a CCN by both parties shall constitute a modification
hereof and shall be binding on both parties hereto.
13.4 EXCEPTION: Substitutions relative to Products which are purchased
items not manufactured by TRW may be made by TRW without the consent of Buyer if
such substitutes are of like quality and are available at the same or lower cost
to Buyer.
ARTICLE 14
INTELLECTUAL PROPERTY
14.1 PROPRIETARY INFORMATION. For the purpose of this Agreement:
(a) "Proprietary Information" shall mean all drawings, documents,
ideas, know-how and other information supplied by one party to another (whether
disclosed orally, or in documentary form, by demonstration or otherwise) for the
purpose of achieving the objectives of this Agreement.
(b) "Proper Use" shall mean use of the Proprietary Information solely
by the recipient for the objectives of this Agreement.
14.2 NONDISCLOSURE. All Proprietary Information furnished shall remain the
property of the disclosing party and shall be treated by the recipient in strict
confidence, shall not be used except for Proper Use, shall be disclosed by the
recipient only to persons within the recipient's company (including companies
directly or indirectly more than fifty percent (50%) owned or controlled by the
recipient) who are directly concerned in the Proper Use, and shall not be
disclosed to consultants or by the recipient to any other party without the
disclosing party's prior written consent, except for Proprietary Information
that was:
(a) In the public domain at the time it was disclosed; or
(b) Known to the recipient without restriction at the time of receipt;
or
(c) Published or becomes available to others without restriction
through no act or failure to act on the part of the recipient; or
(d) Known to the recipient from a source other than the disclosing
party without breach of this Agreement by the recipient; or
(e) Subsequently designated by the disclosing party in writing as no
longer proprietary; or
(f) Independently developed by the recipient without reference to the
Proprietary Information; or
(h) Disclosed after five (5) years from the date of delivery by the
disclosing party to the recipient, which five (5) year period shall survive the
termination of this Agreement; provided, however, that if Buyer, as a result of
an agreement with a customer, requires a longer nondisclosure period, the
parties shall agree to such longer nondisclosure periods with regard to
Proprietary Information applicable to such customer's contract.
If any portion of Proprietary Information falls within any one of these
exceptions, the remainder shall continue to be subject to the foregoing
prohibitions and restrictions. The recipient of Proprietary Information shall
inform its employees of the confidential nature of the Proprietary Information
and shall prohibit them from making copies of any of it except where such copies
are necessary for the purposes of Proper Use, unless agreed upon by the
disclosing party. The recipient of Proprietary Information shall exercise the
same degree of care in protecting such Proprietary Information as it takes to
preserve and safeguard its own proprietary information, and in no event less
than a degree of care a reasonable recipient would use to protect its own
proprietary information.
14.3 MARKING. Proprietary Information made available in written form by one
party to the other party shall be marked with the legend:
"ENDWAVE PROPRIETARY INFORMATION"
or - "TRW PROPRIETARY INFORMATION"
as the case may be, or an equivalent conspicuous legend. No sheet or page of any
written material shall be so labeled which is not, in good faith, believed by
the disclosing party to contain Proprietary Information. A recipient of
Proprietary Information hereunder shall have no obligation with respect to any
portion of any written material which is not so labeled or any information
received orally unless it is identified as proprietary and a written summary of
such oral communication, specifically identifying the items of Proprietary
Information, is furnished to the recipient within thirty (30) days of such
disclosure.
The individuals identified below are the only persons authorized to
receive Proprietary Information on behalf of the parties:
For Buyer: ▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇
For TRW: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By written notice to the other parties, these representatives may be replaced by
another person from the same party.
14.4 COMPENSATION. The parties shall not be obligated to compensate each
other for the transfer of any Proprietary Information under this Agreement and
agree that no warranties of any kind are given with respect to such Proprietary
Information or any use thereof. No license is hereby granted under any patent,
trademark or copyrights with respect to any Proprietary Information.
14.5 SURVIVAL. The obligations of the parties concerning confidentiality
set forth in this Article 14 shall survive termination or completion of this
Agreement.
14.6 OWNERSHIP OF MASKSETS: TRW shall retain sole possession of any and all
glass plates utilized for photolithographic semiconductor processing of MMIC (as
defined in Section 14.7 below) designs ("Masksets") developed or procured by TRW
under this Agreement.
14.7 OWNERSHIP OF MIMIC DESIGNS: TRW shall retain sole ownership rights to
its solely developed designs for monolithic microwave integrated circuit
("MMIC") designs. TRW shall also retain sole ownership rights to individual
circuit elements, design libraries, design rule manuals, circuit elements and
MIMIC fabrication processes for all MMIC designs. Buyer shall retain sole
ownership rights to its solely developed designs for MMIC designs.
ARTICLE 15
INDEMNIFICATION
15.1 INDEMNIFICATION BY TRW: In the event any Products to be furnished
under this Agreement are not to be made in accordance with drawings, samples, or
manufacturing specifications designated by Buyer, but rather are the design of
TRW, TRW agrees that it shall, at its own expense and at its option, defend or
settle any claim, suit, or proceeding brought against Buyer, based on an
allegation that the Products furnished under this Agreement constitute a direct
or a contributory infringement of any claim of any patent, mask work, copyright
or any other intellectual property right. This obligation shall be effective
only if Buyer shall have made all payments then due and if TRW is notified of
said allegation promptly in writing and given authority, information, and
assistance for the settlement or defense of said claim, suit, or proceedings.
TRW shall pay all damages and costs assessed in such suit or proceedings. In the
event of a final adjudication by a court of competent jurisdiction that its
Products or any part thereof infringes or violates any third party intellectual
property right or if the use or sale thereof is enjoined, or if the provisions
of any negotiated settlement agreement prohibit the use of the Products, TRW
shall at its sole option and its own expense, either:
(1) Procure for Buyer the right to continue using the Product; or
(2) Replace the Products with substantially equivalent non-infringing
Products; or
(3) Modify the Products so they become non-infringing but
substantiallyequivalent; or
(4) To the extent that the options set forth in Clauses (1), (2) and
(3) are not reasonably available, terminate the Buyer's right to use
the Product and return to the Buyer a pro-rata portion of the price
originally paid by Buyer to TRW represented by the remaining useful
life of the Product as a percentage of the total useful life.
The foregoing indemnity does not apply to the following:
(1) Infringement by a combination of Products furnished under this
Agreement with other products not furnished hereunder unless TRW is a
contributory infringer;
(2) Infringement resulting from changes or modifications made to or
from the Products by the Buyer; and (3) Any settlements of a claim,
suit, or proceeding made without TRW's written consent.
The foregoing states the entire liability of Seller with respect to infringement
or violation of third party intellectual property rights in connection with
Products furnished under this Agreement.
15.2 INDEMNIFICATION BY BUYER: In the event any Products to be furnished
under this Agreement are to be made in accordance with drawings, samples, or
manufacturing specifications designated by Buyer and are not the design of TRW,
Buyer agrees to defend, indemnify and hold TRW harmless to the same extent and
subject to the same requirements as set forth in TRW's indemnification of Buyer
as set forth in Section 15.1 above.
ARTICLE 16
MISCELLANEOUS
16.1 HEADINGS: The headings and titles to the articles, sections, and
paragraphs of this Agreement are inserted for convenience only and shall not be
deemed a part hereof or affect the construction or interpretation of any
provision hereof.
16.2 REMEDIES: Unless otherwise expressly provided herein, the rights and
remedies hereunder are in addition to, and not in limitation of, other rights
and remedies under the Agreement, at law or in equity, and exercise of one right
or remedy shall not be deemed a waiver of any other right or remedy.
16.3 MODIFICATION AND WAIVER: No cancellation, modification, amendment,
deletion, addition, or other change in the Agreement or any provision hereof, or
waiver of any right or remedy herein provided, shall be effective for any
purpose unless specifically set forth in a writing signed by the party to be
bound thereby. No waiver of any right or remedy in respect of any occurrence or
event on one occasion shall be deemed a waiver of such right or remedy in
respect of such occurrence or event on any other occasion.
16.4 ENTIRE AGREEMENT: This Agreement supersedes all other agreements, oral
or written, heretofore made with respect to the subject hereof, and the
transactions contemplated hereby and contains the entire agreement of the
parties.
16.5 SEVERABILITY: Any provision hereof prohibited by or unlawful or
unenforceable under any applicable law of any jurisdiction shall as to such
jurisdiction be ineffective without affecting any other provision of the
Agreement. To the full extent, however, that the provisions of such applicable
law may be waived, they are hereby waived, to the end that the Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
16.6 CONTROLLING LAW: All questions concerning the validity and operation
of this Agreement and the performance of the obligations imposed upon the
parties hereunder shall be governed by the laws of the State of California
applicable to contracts entered into and wholly to be performed in such
jurisdiction.
16.7 SUCCESSORS AND ASSIGNS: The provisions of this Agreement shall be
binding upon and for the benefit of TRW and Buyer and their respective
successors and assigns. This provision shall not be deemed to expand or
otherwise affect the limitation on assignment and transfers set forth in Article
9 and no party is intended to or shall have any right or interest under this
Agreement, except, as provided in Article 9.
16.8 COUNTERPARTS: This Agreement has been executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts together shall constitute but one and the same instrument.
16.9 LANGUAGE: If a translation of this Agreement is required or otherwise
made, the English version shall be the official version and shall control in the
event of differences. All communications relating to this Agreement shall be in
English.
16.10 NON-SOLICITATION OF EMPLOYEES: During the Term and for a period of
one year after the end of the Term, neither Buyer nor any agent of Buyer shall
solicit for hire, or hire as a result of such solicitation any employee of TRW,
except with TRW's express written permission. The terms "solicit" and
"solicitation" shall not include any general solicitation not specifically
directed to TRW's employees.
16.11 MMIC DESIGN TRAINING: At one time only during the term of this
Agreement, upon reasonable notice and at a reasonable time mutually agreed upon
between the parties, TRW will provide, free of charge to Buyer, TRW's standard
two day training course designed to initiate circuit design engineers to TRW's
circuit design process. A maximum of ten Buyer personnel can attend such
session. All travel and room and board expenses of Buyer personnel shall be
borne by Buyer. As part of this training program, TRW will provide Buyer one set
of its standard design tool software (including design rule check run set,
design rule book and layout element library).
IN WITNESS WHEREOF, the parties have executed this Agreement in English as
of the date and year first set forth above.
ENDWAVE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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President and Chief Executive Officer
TRW INC.
Space and Electronics Group
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Vice President
EXHIBIT 1A
LIST OF PRODUCTS
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
EXHIBIT 1B
PRICE, QUANTITY COMMITMENTS, DELIVERY SCHEDULE AND BUYER'S SITE
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
F. SITE
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Or
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ATTACHMENT A: CHIP TO WAFER CONVERSION MATRIX
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THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
ATTACHMENT B: WAFER PROCESSING PRICE MATRIX
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[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
ATTACHMENT C: WAFER TEST PRICE MATRIX ($/WAFER)
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[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
ATTACHMENT D: WAFER PURCHASE COMMITMENT
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[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTIONS.
