EXHIBIT 10.3
COMMUNICATIONS BUSINESS UNIT
DEVELOPMENT AND PRODUCTION
AGREEMENT
POWERDSINE LTD.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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Development and Production Agreement concluded by and between
POWERDSINE LTD.
▇ ▇▇▇▇▇▇▇ ▇▇., ▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇ HASHARON
ISRAEL
hereinafter "PowerDsine"
and
AUSTRIA MIKRO SYSTEME INTERNATIONAL ▇▇
▇▇▇▇▇▇▇ PREMSTATTEN
A 8141 UNTERPREMSTATTEN
AUSTRIA
hereinafter "Austria Mikro Systeme"
(In the present AGREEMENT, PowerDsine and Austria Mikro Systeme shall also be
referred to jointly as "PARTIES" or individually as "PARTY" respectively)
WHEREAS, Austria Mikro Systeme is engaged in the development and production of
integrated MOS circuits; and
WHEREAS, PowerDsine requires a design and/or manufacturing of a particular
semiconductor product, as described in greater detail in Section 3 herein to
this AGREEMENT; and
WHEREAS, Austria Mikro Systeme has the expertise in the design and manufacturing
of such semiconductor products, including but not limited to analog circuits,
Austria Mikro Systeme has established processes and practices for manufacturing
such activities and has the ability to perform the obligations described in this
AGREEMENT in accordance with their terms; and
WHEREAS, the Parties desire to develop and produce integrated MOS circuits (with
the Austria Mikro Systeme project name "▇▇▇▇▇▇▇ 4906-001" and by PowerDsine with
the project name "IDO" as more fully described herein.
NOW, THEREFORE, in consideration of their mutual promises and undertakings
contained herein, the parties agree as follows:
WITNESSETH
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1. DEFINITIONS...........................................................4
2. DEVELOPMENT TASKS.....................................................5
2.1 DUTIES OF AUSTRIA MIKRO SYSTEME..............................5
2.2 DUTIES OF POWERDSINE.........................................6
3. SPECIFICATION.........................................................7
4. CIRCUIT ATTRIBUTES....................................................7
5. DEVELOPMENT...........................................................8
5.1 DEVELOPMENT STAGES...........................................8
5.2 DEVELOPMENT COST.............................................8
5.3 CO-OPERATION DURING THE DEVELOPMENT..........................9
5.4 ALTERATIONS OF THE SPECIFICATION OR CIRCUIT ATTRIBUTES.......9
5.5 CONFIRMATION OF THE SIMULATION...............................9
5.6 APPROVAL OF THE ENGINEERING SAMPLES.........................10
5.7 REVISION OF THE CIRCUIT.....................................10
5.8 REDESIGN AT POWERDSINE'S REQUEST............................10
5.9 REDESIGN AT THE REQUEST OF BOTH PARTIES.....................11
5.10 PROBABILITY OF A REDESIGN...................................11
5.11 DELIVERY OF PROTOTYPES......................................11
5.12 APPROVAL OF THE PROTOTYPES..................................11
6. QUALITY OF THE MASS PRODUCTION CIRCUITS..............................12
6.1 QUALITY ASSURANCE...........................................12
6.2 AOQ (AVERAGE OUTGOING QUALITY)..............................12
7. QUANTITIES AND CONDITIONS............................................13
7.1 PURCHASING VOLUME AND TERM..................................13
7.2 ORDERS......................................................13
7.3 START OF DELIVERY...........................................14
7.4 VARIATIONS IN QUANTITIES....................................14
8. UNIT PRICES..........................................................14
8.1 PRICES FOR ADDITIONAL PROTOTYPES............................14
8.2 CIRCUIT PRICES..............................................14
9. TERMS OF PAYMENT AND DELIVERY........................................15
10. CO-OPERATION DURING THE TERM OF PRODUCTION...........................15
10A. SHIPMENTS, SCHEDULE CHANGE...........................................15
10B. PRODUCT ACCEPTANCE AND WARRANTS......................................16
10C. TERM AND TERMINATION.................................................16
11. FORCE MAJEURE........................................................18
12. NONDISCLOSURE........................................................18
13. LIABILITY LIMITATION.................................................18
14. JURISDICTION AND APPLICABLE LAW......................................19
15. SEVERABILITY.........................................................19
16. MODIFICATION OF AGREEMENT............................................19
17. LANGUAGE OF AGREEMENT................................................20
18. AUSTRIA MIKRO SYSTEME REPRESENTATION.................................20
19. MISCELLANEOUS........................................................20
20. ENCLOSURES TO THIS AGREEMENT.........................................22
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1. DEFINITIONS
"SPECIFICATION"
shall mean the behaviour, function and environmental conditions of the
Mass Production Circuits, Engineering Samples and Prototypes. It is
the working basis for the development and describes the objective of
the development task.
"ENGINEERING SAMPLES"
shall mean samples that meet all functional requirements of the
Specification; they may not be used for the Qualification of the
integrated circuit as the production of such Engineering Samples is
not realised under mass production conditions.
"QUALIFICATION"
shall mean the testing procedure to verify whether the integrated
circuit meets all functional requirements provided for in the
Specification.
"INTELLECTUAL PROPERTY RIGHTS"
shall mean, all rights arising from patents, copyrights, trade
secrets, Confidential Information (as defined in the confidentiality
agreement between the Parties and attached hereto as Annex 2), trade
marks, service marks, trade names, mask works, applications and other
proprietary rights in any jurisdiction, and to (i) all inventions,
discoveries, works of authorship know-how, technical information, work
product and/or other information related to the Mass Produced Circuits
and (ii) any improvements, enhancements or modifications related
thereto and developed during the term of this Agreement.
"PROTOTYPES"
shall mean integrated circuits meeting all requirements of the
Specifications. The integrated circuits shall be tested with a full
production test program and may be used for a full qualification
program.
"MASS PRODUCTION CIRCUITS" OR "PRODUCTS"
shall mean mass produced integrated circuits. Following the approval
by PowerDsine of the Prototypes, PowerDsine shall, during the agreed
Purchasing Period, acquire the Mass Production Circuits at a fixed
price and at lead-time of eighteen (18) weeks ("LEADTIME").
"PURCHASING PERIOD"
shall mean the fifteen (15) month period beginning after the approval
of the Prototype by PowerDsine.
"PURCHASE VOLUME"
PowerDsine commits to purchase a minimum quantity of CIRCUITS within a
defined purchasing period.
Further specific terms of this AGREEMENT shall be defined when first
used herein; such terms shall be printed in CAPITALS.
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** Represents material which has been redacted and separately filed with the
commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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2. DEVELOPMENT TASKS
2.1 DUTIES OF AUSTRIA MIKRO SYSTEME
2.1.1 Austria Mikro Systeme shall perform the work detailed below,
in accordance with the terms of this AGREEMENT (the "WORK").
2.1.2 Austria Mikro Systeme shall. provide the services and
deliverables and their . schedule is as specified in Exhibit
2.2.
2.1.2.1 Generation of the Specification, which shall be
comprised of the following:
-- Definition of inputs and outputs
-- Block diagram with detailed functional
description
-- Definition of the electrical parameters
-- Definition of the environmental conditions
-- Definition of the absolute maximum ratings;
2.1.2.2 Provision of AHDL description of ADC (as defined
in the Specifications), DAC's and other mixed
signal components.
2.1.2.3 Circuit design with CAD system
-- Design, Layout and Simulation of analogue
blocks
-- Synthesis of VHDL
-- Timing simulation of gatelevel netlist
-- Clock tree and test insertion
-- Scan insertion and Automatic Test Pattern
Generation Perform Place & Route
-- Backannotation
-- Static timing analysis for race conditions
-- Completion of Layout;
2.1.2.4 Definition of the absolute maximum ratings;
2.1.2.5 Participation in design reviews;
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Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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2.1.2.6 Preparation of the layout;
2.1.2.7 Preparation of the bonding diagram;
2.1.2.8 Manufacture of the masks;
2.1.2.9 Production and delivery of fifteen (15)
ENGINEERING SAMPLES;
2.1.2.10 Development of the test program;
2.1.2.11 Preparation of a performance board for production
test and of a probe card;
2.1.2.12 Installation of a test program;
2.1.2.13 Preparation of all production documents;
2.1.2.14 Testing of prototypes at hot and cold
temperatures, ESD and Latchup and;
2.1.2.15 Production and delivery of twenty five (25)
Prototypes.
2.2 DUTIES OF POWERDSINE
PowerDsine shall assist with the development by providing the
following:
2.2.1 Provision to Austria Mikro Systeme of the documents listed
in this subsection 2.2.1 (together the "DOCUMENTS"):
2.2.1.1 System specification or any part thereof at
PowerDsine's sole discretion, strictly for the
aims of this AGREEMENT;
2.2.1.2 Block diagram or any part thereof at PowerDsine's
sole discretion, strictly for the aims of this
AGREEMENT;
2.2.1.3 Description of inputs and outputs (as defined in
the Specifications;
2.2.1.4 Description of external components (as defined in
the Specifications); and
2.2.1.5 Description of electrical parameters (as defined
in the Specifications).
2.2.2 Examination and confirmation of the SPECIFICATION
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under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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2.2.2.1 Provision of VHDL description of digital part of
the integrated circuit;
2.2.2.2 Approval of timing simulation results (which shall
be provided to PowerDsine by Austria Mikro
Systeme);
2.2.2.3 Participation in design reviews;
2.2.2.4 Examination and approval of ENGINEERING SAMPLES;
2.2.2.5 Assistance with the correlation of the test
program; and
2.2.2.6 Examination and approval of PROTOTYPES.
3. SPECIFICATION
3.1 Austria Mikro Systeme shall prepare the SPECIFICATION based on the
DOCUMENTS specified in section 2.2 herein within [**] after receipt of
the latter and present said SPECIFICATION to PowerDsine.
3.2 During these [**], both PARTIES shall use their best endeavours to
reach an agreement concerning the SPECIFICATION.
3.3 The agreement concerning the SPECIFICATION and - in the event of
technical or commercial alterations - any amendments to this AGREEMENT
shall be confirmed in writing by both PARTIES. The SPECIFICATION shall
be the basis for the agreed development Work and is an integral part
of this AGREEMENT. If no agreement concerning the Specification is
reached within a reasonable period of time, either PARTY may terminate
this AGREEMENT in writing by giving 2 weeks notice.
3.4 In the case of termination as described in subsection 3.3 herein only,
there shall be no financial obligations between the Parties arising
from such termination.
4. CIRCUIT ATTRIBUTES
Based on the information received from PowerDsine, the following
circuit attributes (hereinafter the "CIRCUIT ATTRIBUTES") were
determined by Austria Mikro Systeme.
[** Redacted Table]
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commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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[**]
5. DEVELOPMENT
5.1 DEVELOPMENT STAGES
The development of the Product shall commence when an agreement
concerning the SPECIFICATION is reached; it shall end when the
PROTOTYPES are approved by PowerDsine.
The development comprises the following phases:
------------------------------- ------------------------- ------------
RESPONSIBILITY DURATION
------------------------------- ------------------------- ------------
Development of the Product
including simulation Austria Mikro Systeme [**]
------------------------------- ------------------------- ------------
Production of the
ENGINEERING SAMPLES Austria Mikro Systeme [**]
------------------------------- ------------------------- ------------
Approval of the
ENGINEERING SAMPLES PowerDsine [**]
------------------------------- ------------------------- ------------
Production of the PROTOTYPES Austria Mikro Systeme [**]
------------------------------- ------------------------- ------------
Approval of the PROTOTYPES PowerDsine [**]
------------------------------- ------------------------- ------------
(x) Estimate based on the information available at the time of
conclusion of the AGREEMENT.
In addition, the Parties hereby represent that they shall cooperate
fully and in good faith to reach the above specified schedule, and
shall take all reasonable steps to solve any circumstances unforeseen
at the time of the conclusion of the AGREEMENT. If either party
believes that it shall not be able to meet the schedule as detailed
above, or if either party has reason to believe that the other party
is in breach of said representation, the following escalation
procedure shall apply:
(a) the senior management representatives (in the case of
PowerDsine - the project manager, Vice President of R&D and
Vice President of Operations; in the case of Austria Mikro
Systeme - Director Marketing and Director Engineering of the
Business Unit Communications) of both parties are to be
immediately notified fully of the event; and
(b) the senior management representatives of both parties as
specified above shall, as soon as feasibly possible, convene
whether by phone or in person, to resolve the circumstances
jeopardizing the completion of the project within the above
schedule and to immediately implement all reasonably
necessary steps to such effect.
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commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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5.2 DEVELOPMENT COS
The development costs are [**].
The partial amounts of the development costs listed below shall be
payable as follows:
-------------------------------------- --------------- ---------------
1. Upon agreement of the
SPECIFICATION [**] US $
-------------------------------------- --------------- ---------------
2. Upon delivery of the
ENGINEERING SAMPLES [**] US $
-------------------------------------- --------------- ---------------
3. Upon delivery of the PROTOTYPES [**] US $
-------------------------------------- --------------- ---------------
5.3 CO-OPERATION DURING THE DEVELOPMENT
PowerDsine nominates the following contact persons for the realization
of the Work:
----------------------- ----------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
----------------------- ----------------------------------------------
Function: Asic Manager
----------------------- ----------------------------------------------
Tel. no.: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------- ----------------------------------------------
Fax no.:
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Address: PowerDsine Ltd.
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▇ ▇▇▇▇▇▇▇ ▇▇., ▇.▇. ▇▇▇ ▇▇▇▇
----------------------- ----------------------------------------------
IL-45421 Hod Hasharon
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E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------- ----------------------------------------------
Austria Mikro Systeme nominates the following persons who shall be
responsible to PowerDsine for the realization of the project:
----------------------- ----------------------------------------------
Name: ▇▇▇▇ Ilzer
----------------------- ----------------------------------------------
Function: Group Leader M/S Design Group
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Tel. no.: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
----------------------- ----------------------------------------------
Fax no.: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
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Address: Austria Mikro Systeme International AG
----------------------- ----------------------------------------------
Schloss Premstaetten
----------------------- ----------------------------------------------
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
----------------------- ----------------------------------------------
E-mail: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
----------------------- ----------------------------------------------
5.4 ALTERATIONS OF THE SPECIFICATION OR CIRCUIT ATTRIBUTES
Both PARTIES may at any time propose alterations to the SPECIFICATION
in writing. The other PARTY may, where possible, comply with such
requests for alterations. The resulting effects on the project
schedule, the development cost, the CIRCUIT ATTRIBUTES and, if
applicable, the UNIT PRICE shall be documented in writing, together
with the agreed alterations, and duly undersigned by the PARTIES as a
supplement to this AGREEMENT.
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commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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5.5 CONFIRMATION OF THE SIMULATION
At a design review, PowerDsine shall declare in writing that the
results of the circuit simulation match the SPECIFICATION. This
confirmation is a precondition for the production of ENGINEERING
SAMPLES.
5.6 APPROVAL OF THE ENGINEERING SAMPLES
5.6.1 PowerDsine shall communicate to Austria Mikro Systeme in
writing within [**] weeks after the delivery of [**]
ENGINEERING SAMPLES whether the ENGINEERING SAMPLES meet the
functional requirements specified in the SPECIFICATION.
5.6.2 Should PowerDsine note any deviations from the
SPECIFICATION, it shall prepare a comprehensive technical
report of its investigations and submit the same to Austria
Mikro Systeme to enable the latter to verify such deviations
and if necessary to rectify them without further delay.
5.6.3 PowerDsine will do its best efforts to approve or disapprove
the ENGINEERING SAMPLES within the agreed [**] week period.
5.6.4 The approval of the ENGINEERING SAMPLES by PowerDsine shall
be deemed to constitute an order to Austria Mikro Systeme to
proceed with the production of PROTOTYPES and to prepare the
circuit for production pursuant to clause 2.1 herein.
5.6.5 In default of such notification as specified in clause 5.6.2
above (the "DEFAULT"), and if PowerDsine has not given any
other written notification to Austria Mikro Systeme of any
problem with the approval of the Engineering Samples within
the agreed period, the Engineering Samples shall be deemed
approved. Equally the Engineering Samples shall be deemed
approved if PowerDsine has made the first call for
Prototypes with the authorized signature of PowerDsine's
▇▇▇▇▇▇▇ project manager as named in Clause 5.3 herein.
5.6.6 In addition, fourteen (14) days prior to a default event,
Austria Mikro Systeme shall notify PowerDsine Vice President
of Operations as to the non-provision of approval by
PowerDsine to Austria Mikro Systeme.
5.7 REVISION OF THE CIRCUIT
If the ENGINEERING SAMPLES do not meet the functional requirements of
the SPECIFICATION and PowerDsine cannot be reasonably expected to
compensate the deviating behaviour of the circuits by taking external
measures, Austria Mikro Systeme shall perform a revision of the
circuit (e.g. modification of the circuit, new simulation, production
of new ENGINEERING SAMPLES, preparation of masks, etc.) at its own
expense as part of a so-called "REDESIGN".
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commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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5.8 REDESIGN AT POWERDSINE'S REQUEST
Austria Mikro Systeme undertakes to redesign the circuit if the
ENGINEERING SAMPLES, while meeting the SPECIFICATION, fail to fulfill
PowerDsine's expectations for any reason whatsoever. In such case
however, PowerDsine shall bear the costs of the REDESIGN.
5.9 REDESIGN AT THE REQUEST OF BOTH PARTIES
If the ENGINEERING SAMPLES do not fully meet the SPECIFICATION and if
PowerDsine also requests additional alterations of the SPECIFICATION
during the REDESIGN phase, both PARTIES shall bear the costs of the
REDESIGN.
Before starting the REDESIGN, the PARTIES hereto shall agree the costs
and the way of sharing them.
5.10 PROBABILITY OF A REDESIGN
Because of the risks inherent to the development of complex integrated
circuits, it cannot be guaranteed that the first ENGINEERING SAMPLES
will meet all functional requirements. PowerDsine is therefore advised
to make a time allowance in its planning for any REDESIGN
requirements.
The time required for a REDESIGN depends on the scope thereof. As a
rule, it should be less than 8 weeks.
5.11 DELIVERY OF PROTOTYPES
Austria Mikro Systeme shall deliver to PowerDsine [**] PROTOTYPES
within [**] following the approval of the ENGINEERING SAMPLES or
following any revision of the circuit according to clauses 5.7 - 5.9,
respectively.
5.12 APPROVAL OF THE PROTOTYPES
5.12.1 PowerDsine shall advise Austria Mikro Systeme within [**]
weeks of receipt of the [**] PROTOTYPES in writing whether
such PROTOTYPES meet the requirements specified in the
SPECIFICATION.
5.12.2 Should PowerDsine note any deviations from the
SPECIFICATION, it shall prepare a comprehensive technical
report of its investigations and submit the same to Austria
Mikro Systeme to enable the latter to check and rectify the
established defects without further delay.
5.12.3 In default of such notification as specified in clause
5.12.2 above, and if PowerDsine has not given any other
written notification to Austria Mikro Systeme of any problem
with the approval of the Prototypes within the agreed
period, the PROTOTYPES shall be deemed approved. Equally the
PROTOTYPES shall be deemed approved if PowerDsine has made
the first order for MASS PRODUCTION CIRCUITS with the
authorized signature of PowerDsine's ▇▇▇▇▇▇▇ project manager
as named in clause 5.3 herein.
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commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
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5.12.4 In addition, [**] days prior to a default event, Austria
Mikro Systeme shall notify PowerDsine Vice President of
Operations as to the non-provision of approval by PowerDsine
to Austria Mikro Systeme.
6. QUALITY OF THE MASS PRODUCTION CIRCUITS
6.1 QUALITY ASSURANCE
Austria Mikro Systeme represents that it shall aspire to deliver the
highest quality and reliable the MASS PRODUCTION CIRCUITS. The quality
control, quality assurance and reliability of the MASS PRODUCTION
CIRCUITS manufactured according to this AGREEMENT are specified in the
"Austria Mikro Systeme - Product Assurance Reliability Manual" QTY-1
Rev. 13.0, May 2001.
6.2 AOQ (AVERAGE OUTGOING QUALITY)
6.2.1 The AOQ target value for the MASS PRODUCTION CIRCUITS to be
produced according to this AGREEMENT shall be a defect
density of less than 100 DPM (defects per million). This AOQ
target value shall refer to the mechanical and electrical
ratings of the circuit described in the SPECIFICATION. The
MASS PRODUCTION CIRCUITS shall be tested by means of a test
program developed by Austria Mikro Systeme. This test covers
the Specification's electrical values to the best possible
extent.
6.2.2 PowerDsine agrees to assess the AOQ only with the test
program having been in use at the time of production of the
MASS PRODUCTION CIRCUITS. If PowerDsine suspects that the
MASS PRODUCTION CIRCUITS may not be in full compliance with
the SPECIFICATION, it may return a number of representative
MASS PRODUCTION CIRCUITS from that batch to Austria Mikro
Systeme, together with a description of the deviation.
Austria Mikro Systeme shall then submit to PowerDsine a
written failure analysis promptly.
6A. INTELLECTUAL PROPERTY
6A.1 PowerDsine shall have all rights, titles and interests in
the Intellectual Property Rights and the like it has
provided to Austria Mikro Systeme. Austria Mikro Systeme
shall not have any proprietary rights whatsoever in the
PowerDsine Intellectual Property.
6A.2 Austria Mikro Systeme shall have all rights, titles and
interests in all Intellectual Property Rights that it has,
independent of its cooperation with PowerDsine, developed
prior to this AGREEMENT (collectively the "Austria Mikro
Systeme Intellectual Property"), and such Austria Mikro
Systeme Intellectual Property shall be the sole and
exclusive property of Austria Mikro Systeme.
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under he securities Act of 1933, as amended.
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6A.3 PowerDsine shall have all rights, titles and interests in
all Intellectual Property Rights resulting from the
implementation of the Specifications and Austria Mikro
Systeme shall assist PowerDsine and sign any and all
documents reasonably deemed necessary by PowerDsine, for the
protection of such Intellectual Property Rights.
6A.4 Austria Mikro Systeme represents that it has all rights and
licenses for all third party Intellectual Property Rights
necessary for the performance of its obligations under this
AGREEMENT.
6A.5 Austria Mikro Systeme hereby grants PowerDsine a perpetual,
worldwide royalty-free irrevocable license to use all
intellectual property, which is not PowerDsine's
intellectual property, embodied or incorporated in the Mass
Production Circuit.
7. QUANTITIES AND CONDITIONS
7.1 PURCHASING VOLUME AND TERM
PowerDsine commits to purchase directly or indirectly [**] MASS
PRODUCTION CIRCUITS ("PURCHASING VOLUME") within the Purchasing
Period, if approved by PowerDsine. MASS Production orders will begin
only after the approval of the PROTOTYPES by PowerDsine. Indirect
purchase shall be done through PowerDsine's contract manufacturers
subject to Austria Mikro Systeme's prior approval of the financial and
commercial good standing of any such contract manufacturer. Such
approval shall not be unreasonably withheld.
7.2 ORDERS
7.2.1 The committed delivery Lead Time by Abustria Mikro Systeme
shall be [**] weeks to delivery.
7.2.2 In the interest of an economical and environment-friendly
use of packaging material, a single call-off should be at
least 65.000 pieces or multiples thereof.
7.2.3 Austria Mikro Systeme undertakes to deliver the quantities
of the Product(s), after such Product(s) have undergone all
required quality assurance tests, by the delivery date
stipulated in the order acknowledgement. Such order
acknowledgement shall be in accordance with the Leadtime
provided for in Section 7.2.1 If for any reason such order
cannot be filled by the stipulated delivery date, Austria
Mikro Systeme shall immediately notify PowerDsine in writing
of the delay and its reasons, if known, and will keep
PowerDsine informed throughout the period of delay. Austria
Mikro Systeme shall use its best efforts to minimize the
effects of any such delays, including by the selection of
the fastest shipping means available, in which case Austria
Mikro Systeme shall bear any such additional expenses. In
case of a delay, PowerDsine shall give Austria Mikro Systeme
a two week grace period from
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commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
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the delivery date stipulated in the order acknowledgement,
to deliver the delayed products. If after such grace period,
Austria Mikro Systeme has not delivered the Product pursuant
to the order, PowerDsine shall be entitled to reschedule the
delivery dates of the delayed Products for a period of up to
six (6) months. The above shall be PowerDsine's exclusive
remedy for the delay in delivery of Products and any other
remedies which may be available to PowerDsine shall be
expressly excluded.
7.3 START OF DELIVERY
In the event that PowerDsine places an order on or before the approval
of the Prototype, Austria Mikro Systeme undertakes to be in a position
to deliver 2.500 MASS PRODUCTION CIRCUITS, at the latest, twelve (12)
weeks after the approval of the PROTOTYPES and a further 63.000 after
fifteen (15) weeks of the order.
7.4 VARIATIONS IN QUANTITIES
The actually delivered quantity of MASS PRODUCTION CIRCUITS may vary
at the rate of +0/-10% with respect to the ordered quantity. Any
deviations from the specified delivery quantities not exceeding this
tolerance band shall be deemed to constitute fulfillment of the
AGREEMENT.
If PowerDsine should be unable to meet its purchasing obligations due
to such deviations, PowerDsine shall have no financial disadvantage
with regard to the applicable unit price (see clause 8.2).
8. UNIT PRICES
8.1 PRICES FOR ADDITIONAL PROTOTYPES
Additional PROTOTYPES may be ordered up to a maximum quantity of two
hundred (200) pieces at a UNIT PRICE of [**]. The delivery time for
this special call-off shall be four (4) weeks at the latest.
PowerDsine shall be under no obligation to order additional
PROTOTYPES.
8.2 CIRCUIT PRICES
[** Redacted Table]
In SPECIFICATION the delivery of MASS PRODUCTION CIRCUITS in TQFP 44
package is defined. If PowerDsine decide to buy MASS PRODUCTION
CIRCUITS without TQFP4 package (die-form), the testsection of
SPECIFICATION has to be changed accordingly.
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Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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With its first order of MASS PRODUCTION CIRCUITS PowerDsine shall
choose a price band corresponding to the anticipated PURCHASING VOLUME
for the current PERIOD. If PowerDsine subsequently acquires a
different quantity associated with another price band during the
Purchasing Period, the price shall be adjusted by recalculation at the
PARTIES' earliest convenience, but no later than the end of the
Purchasing Period.
9. TERMS OF PAYMENT AND DELIVERY
Prices shall be FCA Graz (Incoterms 2000), 30 days net, excluding
customs duties and taxes but including packaging. Any other terms and
conditions which may be printed on orders, order confirmations,
invoices etc. shall be null and void.
10. CO-OPERATION DURING THE TERM OF PRODUCTION
PowerDsine nominates the following contact persons for the
co-operation with Austria Mikro Systeme during the TERM:
----------------------- ----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------- ----------------------------------------------
Function: Director of Material and Purchasing
----------------------- ----------------------------------------------
Tel. no.: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
----------------------- ----------------------------------------------
Fax no.:
----------------------- ----------------------------------------------
Address: PowerDsine Ltd.
----------------------- ----------------------------------------------
▇ ▇▇▇▇▇▇▇ ▇▇., ▇.▇. ▇▇▇ ▇▇▇▇
----------------------- ----------------------------------------------
IL-45421 Hod Hasharon
----------------------- ----------------------------------------------
E-mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
----------------------- ----------------------------------------------
Austria Mikro Systeme nominates the following persons who shall be
responsible for the co-operation with PowerDsine during the TERM:
----------------------- -----------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------- -----------------------------------------------
Function: Customer Service
----------------------- -----------------------------------------------
Tel. no.: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
----------------------- -----------------------------------------------
Fax no.: ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
----------------------- -----------------------------------------------
Address: Austria Mikro Systeme International AG
----------------------- -----------------------------------------------
A-8141 Unterpremstatten
----------------------- -----------------------------------------------
E-mail ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
----------------------- -----------------------------------------------
10A. SHIPMENTS, SCHEDULE CHANGE
10A.1 Austria Mikro Systeme hereby undertakes to follow PowerDsine's
shipping address as it may be provided from time to time, as same may
be provided to it from time to time.
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10A.2 Each shipment made by Austria Mikro Systeme, shall include a copy of
the invoice, a packing list, certificate of origin and other related
and necessary documents, as are customary for shipping similar
products.
10A.3 All Products shall be packed and prepared for shipment by Austria
Mikro Systeme in a manner which: (a) follows good commercial practice;
and (b) is acceptable to common carriers for shipment; and (c) is
adequate to ensure safe arrival at Customer's designated destination.
10A.4 Austria Mikro Systeme shall be responsible for obtaining all
appropriate licenses or permits necessary to export the Product(s)
from the country of origin.
10B. PRODUCT ACCEPTANCE AND WARRANTS
10B.1 Austria Mikro Systeme warrants to PowerDsine the following: (a) that
each Product, or any parts thereof, sold pursuant to this AGREEMENT or
any Order issued hereunder, when sold, will conform to all of
PowerDsine's Specifications, and will be free from defects in
workmanship and materia1s for a period of at least fifteen (15) months
from the date of shipment; (b) that each shipment of Products shall
carry with it a certificate of conformance; This express warranty does
not apply to (i) materials consigned by PowerDsine to Austria Mikro
Systeme; (ii) defects resulting from PowerDsine's faulty design of the
Products, insofar as applicable; or (iii) Product(s) that has been
abused, damaged, altered or misused by any person or entity after
title passes to PowerDsine. Notwithstanding anything else in this
AGREEMENT, Austria Mikro Systeme assumes no liability for or
obligation related to the Specifications, designs or instructions
produced or supplied by PowerDsine and PowerDsine shall be liable for
direct costs or expenses incurred by Austria Mikro Systeme resulting
therefrom.
10B.2 When title to the Products will pass to PowerDsine, the Products will
be free from any security interest or other lien or third party
rights.
10B.3 Upon any failure of the Product to comply with the above warranties,
the Parties hereby undertake to execute the RMA procedure provided for
in Enclosure 2. For the avoidance of doubt, PowerDsine shall bear the
cost of transportation of the defective Product to Austria Mikro
Systeme and Austria Mikro Systeme shall bear the transportation cost
of the replaced Product to PowerDsine or any other address as
PowerDsine may instruct Austria Mikro Systeme. Austria Mikro Systeme
shall waive any expedite charges to PowerDsine in order to effect the
earliest reasonable replacement of the defective Product(s).
10C. TERM AND TERMINATION
10C.1 This AGREEMENT shall be effective from the last signature date of
parties (the "EFFECTIVE DATE") and shall remain in effect until the
end of the Purchasing Period (the "TERM"). This AGREEMENT may be
renewed by mutual consent of both
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Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
--------------------------------------------------------------------------------
parties. In addition to any other right to terminate contained
elsewhere in this AGREEMENT and notwithstanding anything to the
contrary, either party shall have the right to terminate this
AGREEMENT for cause as a result of any of the following:
10C.1.1 The filing by or against a Party of a petition for
reorganization or liquidation under local bankruptcy laws or
corresponding laws or procedures of any applicable
jurisdiction; If such filing is involuntary and is contested
to in good faith, this AGREEMENT shall terminate only after
the passage of sixty (60) days without the dismissal of such
proceedings; or
10C.1.2 The filing against a Party of any other proceeding
concerning bankruptcy, insolvency, dissolution, cessation of
operations, or reorganization of indebtedness; If such
proceeding is involuntary and is contested to in good faith,
this AGREEMENT shall terminate only after the passage of
sixty (60) days without the dismissal of such proceedings;
or
10C.1.3 The voluntary or involuntary execution of an assignment or
conveyance to a liquidating agent, trustee, mortgagee or
assignee of whatever description or the making of any
judicial levy against a substantial percentage of a Party's
assets, for the benefit of its creditors; or
10C.1.4 The appointment of a receiver, keeper, liquidator or
custodian of whatever sort of description, for all or a
substantial portion of a Party's assets.
10C.2 Termination of this AGREEMENT shall not affect the obligations of
either party which exist as of the date of termination. The parties
agree that their respective rights, obligations and duties in sections
6A, lOB, and 13 shall survive any expiration or termination thereof.
Furthermore, upon termination of this AGREEMENT each party shall
return to the other any Confidential Information of the other party
and all copies thereof.
10C.3 Termination of the AGREEMENT during Development and up until
completion of Development. If either PARTY materially and persistently
fails to perform its obligations under this AGREEMENT during
Development and up until completion of Development, the other PARTY
shall be entitled to terminate this AGREEMENT by giving thirty (30)
days notice after first having granted the other PARTY a period of
grace of sixty (60) days to make good such failure. In the event of
termination, costs of termination shall be settled according to clause
10C.4 and 10C.5 below. -
10C.4 In the event of termination by Austria Mikro Systeme according to
clause 10C.3 above, PowerDsine shall pay a lump sum corresponding to
the development cost as compensation as specified in section 5.2
herein. This refund constitutes Austria Mikro Systeme's sole remedy
and any further claims made by Austria Mikro Systeme are expressly
excluded.
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10C.5 In the event of termination by PowerDsine according to clause 10C.3
above, Austria Mikro Systeme shall pay PowerDsine any payments made by
PowerDsine to Austria Mikro Systeme as a compensation. This refund
constitutes PowerDsine's sole remedy and any further claims made by
PowerDsine are expressly excluded.
11. FORCE MAJEURE
Neither PARTY shall be liable to pay damages or be entitled to
terminate the AGREEMENT on the grounds of any delay or non-performance
during the term of this AGREEMENT, provided such delay or
non-performance is due to circumstances outside its control, including
force majeure, the imposition of duties by a competent authority or
enduring domestic or international problems (such as war or rebellion,
strikes, natural disasters, stoppage of work and embargoes). However,
the aforesaid shall apply with the restriction that both PARTIES shall
be entitled to terminate this AGREEMENT in writing if the delay or
non-performance of the other PARTY for the above named reasons should
last for more than three (3) months. If such delay should last for
more than three (3) months, Austria Mikro Systeme shall provide
PowerDsine with the mask control tapes (GDSII format).
However, Austria Mikro Systeme shall not be required to disclose trade
secrets or confidential information except for the GDSII format.
12. NONDISCLOSURE
The obligation of keeping confidential information secret and in
particular the protection of the intellectual property of the parties
are set out in a separate confidentiality agreement between PowerDsine
and Austria Mikro Systeme dated 09/Feb/01 (see Enclosure 1) and is an
integral part of this AGREEMENT
13. LIABILITY LIMITATION
13.1 PowerDsine will indemnify and defend Austria Mikro Systeme and keep
Austria Mikro Systeme fully and effectively indemnified against all
direct and indirect costs, damages, judgments and reasonable
attorney's fees (the "Expenses") Austria Mikro Systeme incurs due to
any infringement or other violation by PowerDsine of any Intellectual
Property Rights of third parties, provided however, that: (i) such
Expenses were incurred solely in connection with the performance of
the Work by Austria Mikro Systeme, (ii) in performing the Work,
Austria Mikro Systeme strictly adhered to the Specifications provided
to it by PowerDsine, (iii) Austria Mikro Systeme shall notify
PowerDsine promptly in writing of any allegations or claim of
infringement of which it has notice and will not make any admission
without PowerDsine's prior written consent, and (iv) Austria Mikro
Systeme, at PowerDsine's request and expense, shall allow PowerDsine
to conduct and/or settle all negotiations and litigation resulting
from such allegation or claim.
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13.2 Austria Mikro Systeme hereby represents and warrants to PowerDsine
that Austria Mikro Systeme's Intellectual Property Rights used by
Austria Mikro Systeme in performing its obligations hereunder and
which is ultimately incorporated or embodied in the Product(s), does
not infringe upon any Intellectual Property Rights of any third party.
13.3 Austria Mikro Systeme will indemnify and defend PowerDsine and keep
PowerDsine fully and effectively indemnified against all direct and
indirect Expenses arising out of or in connection with infringement or
violation by Austria Mikro Systeme of any Intellectual Property Rights
of any third party in connection with the performance of its
obligations under this AGREEMENT provided that: (i) PowerDsine shall
notify Austria Mikro Systeme promptly in writing of any allegations or
claim of infringement of which it has notice and will not make any
admission without Austria Mikro Systeme's prior written consent; and
(ii) PowerDsine, at Austria Mikro Systeme's request and expense, shall
allow Austria Mikro Systeme to conduct and/or settle all negotiations
and litigation resulting from such allegation or claim. Austria Mikro
Systeme shall not be liable for any claim to the extent arising solely
out of or resulting solely from (i) any modification or reworking made
by PowerDsine or upon instruction of PowerDsine performed by Austria
Mikro Systeme if such infringement would not have occurred but for
such modification or (ii) use of the Product in combination with other
equipment or computer programs not supplied by Austria Mikro Systeme
if such infringement would not have occurred but from such
combination.
13.4 However, the aggregate liability of either Party for any and all
claims that may result from this Section or any other claims based
upon the infringement of third party Intellectual Propet1y Rights
shall be limited to a maximum of USD 100.000. THE FOREGOING STATES THE
ENTIRE LIABILITY OF THE PARTIES TO EACH OTHER CONCERNING INFRINGEMENT
OF INTELLECTUAL PROPERTY RIGHTS.
14. JURISDICTION AND APPLICABLE LAW
All disputes arising out of or in connection with this AGREEMENT shall
be finally settled in compliance with the Rules of Conciliation and
Arbitration of the International Chamber of Commerce by one. The
arbitration proceedings shall be held in London. The language of the
arbitration shall be English.
15. SEVERABILITY
Should any provision of this AGREEMENT contravene compulsory
regulations and become null and void as a result, the validity of the
remaining provisions of the AGREEMENT shall remain unaffected. The
PARTIES shall in this case replace the ineffective provisions with
such provisions which, while being enforceable, most closely reflect
the original intention of the AGREEMENT.
Should any provisions of this AGREEMENT contravene another agreement
between the PARTIES and become ineffective as a result, the remaining
provisions of this AGREEMENT shall remain unaffected.
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16. MODIFICATION OF AGREEMENT
It is agreed between the PARTIES that no amendment, deletion from or
addition to this AGREEMENT shall be valid unless made in writing,
signed by both PARTIES and expressed to be supplemental to the
agreement.
17. LANGUAGE OF AGREEMENT
It is agreed between the PARTIES that only the English language is
valid for this AGREEMENT or its appendices irrespective whether
translations into other languages wholly or in part have been made or
used for convenience during the establishment and execution of this
AGREEMENT.
18. AUSTRIA MIKRO SYSTEME REPRESENTATION
18.1 Austria Mikro Systeme represents that it has the skills, expertise and
experience required to perform its duties and obligations set forth in
this AGREEMENT and its annexes, and that such duties and obligations
shall be performed diligently, in good faith and utilizing good and
acceptable design, quality and manufacturing practices.
18.2 Austria Mikro Systeme further represents that the performance of its
duties and obligations hereunder is not in violation of and will not
violate, is not limited and will not be limited by any other
obligations Austria Mikro Systeme has or may have towards other third
parties, or of any contractual provision by which Austria Mikro
Systeme is bound.
19. MISCELLANEOUS
19.1 ENTIRE AGREEMENT. This AGREEMENT and all annexes hereto are intended
as the complete, final and exclusive statement of the terms of the
agreement between the parties regarding the subject matters hereof and
supersedes any and all other prior or contemporaneous agreements or
understandings, whether written or oral, between them relating to the
subject matters hereof. In particular, Austria Mikro Systeme's general
terms and conditions of sale shall not apply to any PO,
acknowledgement or other instrument submitted by PowerDsine pursuant
to this AGREEMENT.
19.2 RELATIONSHIP OF THE PARTIES. Neither party shall, for any purpose, be
deemed to be an agent of the other party and the relationship between
the parties shall be that of independent contractors. Each party shall
assume sole and exclusive responsibility for its employees and
contractors. Neither party shall have any right or authority to assume
or create any obligations or to make any representations or warranties
on behalf of any other party, whether express or implied, or to bind
the other party in any respect whatsoever.
19.3 EXPENSES. In any action to enforce this AGREEMENT or in any dispute
arising between the parties pursuant to this AGREEMENT, the prevailing
party shall be awarded all arbitration or courts costs and reasonable
attorney's fees incurred, including such costs and attorney's fees
incurred in enforcing and collecting any judgment.
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19.4 SUCCESSORS, ASSIGNMENT. This AGREEMENT shall be binding upon and inure
to the benefit of the parties hereto and their respective successors,
assigns and legal representatives. Both parties shall not have the
right to assign or otherwise transfer its rights or obligations under
this AGREEMENT except (i) with the prior written consent of
PowerDsine, not to be unreasonably withheld, and (ii) PowerDsine may
assign this AGREEMENT to any entity which is the successor to any part
of its business related to this AGREEMENT by merger, or to any party
which acquires all or substantially all of its assets related to this
AGREEMENT and which agrees to assume all obligations of the assigning
party under this AGREEMENT from and after the date of such assignment.
Any attempted assignment in violation of this provision, shall be null
and void as against the non-assigning party.
19.5 NOTICES. Except for PO's which may be sent by normal carrier, all
notices and communications hereunder are required to be sent to the
address or telecopier number stated below (or such other address or
telecopier number as subsequently notified in writing to the other
party): (a) by facsimile with confirmation of transmission, (b)
personal same or next day delivery or (c) sent by commercial overnight
courier with written verification of delivery. All notices so given
shall be deemed given upon the earlier of receipt or one (l) day after
dispatch.
Any notices sent to PowerDsine hereunder should be sent to:
PowerDsine Ltd.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇'man B Industrial Zone
Hod Hasharon, Israel
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇-▇▇▇▇▇▇▇
Any notices sent to Austria Mikro Systeme hereunder should be sent to:
Austria Mikro Systeme International ▇▇
▇▇▇▇▇▇▇ Premstaetten
A-8141 Unterpremstaetten
Attn: ▇▇▇▇▇▇▇▇ Hochrinner
Fax No. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
19.6 PHOTOCOPY OF ORIGINAL. Neither party shall object to the use of a
photocopy of the original of this AGREEMENT for the purpose of making
any required or allowed public filings.
19.7 COUNTERPARTS. This AGREEMENT may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
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19.8 VISITATION. It is agreed that PowerDsine may visit Austria Mikro
Systeme's facilities during the performance of the Work upon one (1)
week prior co-ordination.
20. ENCLOSURES TO THIS AGREEMENT
Enclosure 1: Confidentiality Agreement (see clause 12)
Enclosure 2: RMA procedure (see clause 10B.3)
Enclosure 3: Project Schedule
-------------------------------------- -----------------------------------------
AUSTRIA MIKRO SYSTEME PowerDsine
INTERNATIONAL AG
-------------------------------------- -----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇
---------------- --------------------- ---------------------- ------------------
General Manager
Function: Communication Function: President
Business Unit
---------------- --------------------- ---------------------- ------------------
Signature: Signature:
---------------- --------------------- ---------------------- ------------------
Date: JUL 24 2001 Date: 15 Aug. 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇
---------------- --------------------- ---------------------- ------------------
Function: General Counsel Function: C.E.O.
---------------- --------------------- ---------------------- ------------------
Signature: Signature:
---------------- --------------------- ---------------------- ------------------
Date: JUL 24 2001 Date: 28 Aug. 2001
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be executed
by their duly authorized representatives effective as of the effective Date (as
defined above).
Enclosure 3: Project Schedule:
As agreed between the parties and sent by Austria Mikro Systeme to PowerDsine in
PDF file.
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Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
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CONFIDENTIAL DISCLOSURE AGREEMENT
Entered into this 09 day of FEB , 2001, by and between POWERDSINE LTD., a
company organized under the laws of Israel with its principal place of business
at ▇ ▇▇▇▇▇▇▇ ▇▇., ▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ("the Company"), and AUSTRIA MIKRO
SYSTEME INTERNATIONAL, a corporation/partnership/individual, with offices at
SCHLOSS PREMSTATTEN, A 8141 UNTERPREMSTATTEN, AUSTRIA ("Participant").
WITNESSETH:
WHEREAS The Company and Participant desire to continue to exchange or provide,
access to their respective confidential and/or proprietary information and
technology for purposes of evaluation of a possible business relationship
between the Company and Participant (the "Evaluation") and to induce such
disclosure desired to undertake certain obligations of confidentiality and
nondisclosure as set forth herein;
NOW THEREFORE, in consideration of the mutual undertakings and promises herein,
the parties hereto hereby agree as follows:
1.1 The term "Information" means any and all confidential and/or
proprietary information and technology of the Company or Participant, in
whatever form, including but not limited to any and all formulas,
specifications, prototypes, designs, equipment, samples, analyses, computer
programs, trade secrets, data, methods, techniques, processes, memoranda, notes,
marketing and customer information, projections and any other data or
information (in whatever form), as well as improvements and know-how related
thereto. Information shall be deemed to include any and all Information which
has been or may be disclosed by or on behalf of the disclosing party,
irrespective of form but which is either (i) marked "Confidential" by the
disclosing party or otherwise identified as confidential and proprietary to the
disclosing party, or (ii) in the case of oral disclosures, is identified at the
time of disclosure as being proprietary and confidential to the disclosing
party.
1.2 "Information" shall not include information or matter that (a) was
already known to or independently developed by the recipient prior to its
disclosure by the other party as demonstrated by reasonable and tangible
evidence satisfactory to the disclosing party; (b) shall have appeared in any
printed publication or patent or shall have become a part of the public
knowledge except as a result of breach of this Agreement by the recipient; (c)
shall have been received by the recipient from another person or entity having
no obligation to the disclosing party or its affiliates; or (d) is approved in
writing by the disclosing party for release by the recipient.
2. Each party agrees to treat all the Information disclosed to it as
strictly confidential and not to exploit or make use, directly or indirectly, of
such Information without the express written consent of the disclosing party,
except for purposes of the Evaluation. Notwithstanding the foregoing, the
recipient may disclose Information to a person or entity controlled by,
controlling or under common control with the recipient, provided such disclosure
is for the purposes of the
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Evaluation and provided that such person or entity is bound by the terms of this
Agreement. Each party shall assume full responsibility for enforcing this
Agreement and shall take appropriate measures with its employees and other
persons acting on its behalf to insure that such persons are bound by a like
covenant of secrecy, including but not limited to informing any employee of the
recipient receiving such Information that such Information shall not be
disclosed except as provided herein. Neither party shall reverse engineer or
disassemble any hardware, software or other Information provided by the other
party, nor shall a party open for any purpose any item of hardware which may be
provided by the other party.
2.1 It is understood and agreed that the disclosure of the Information by
the disclosing party shall not grant the recipient any express, implied or other
license or rights to patents or trade secrets of the disclosing party or its
suppliers, whether or not patentable, nor shall it constitute or be deemed to
create a partnership, joint venture or other undertaking. Further, each party
agrees that it shall not remove or otherwise alter any of the disclosing party's
trademarks or service marks, serial numbers, logos, copyrights, notices or other
proprietary notices or indicia, if any, fixed or attached to Information or nay
part thereof.
2.2 Neither this Agreement nor the disclosure or receipt of Information
shall constitute or imply any promise or intention by either party to make any
purchase of products or services of the other or the other's affiliated
companies, or any commitment by either party or its affiliated companies with
respect to present or future marketing of any products or services or any other
business relationship.
3. Unless otherwise required by statute or government rule or regulation
all copies of the Information shall be returned to the disclosing party
immediately upon request without retaining copies thereof.
4. In the event that the recipient or anyone to whom the recipient
transmits the Information pursuant to this Agreement becomes legally compelled
to disclose any of the Information, the recipient will provide the disclosing
party with prompt notice thereof so that the disclosing party may seek a
protective order or other appropriate remedy and/or waive compliance with the
provisions of this Agreement.
5. This Agreement shall constitute the full Agreement between the parties
with respect to the confidentiality and non-disclosure of the Information and
shall supersede any and all prior agreements and understandings relating
thereto. No change, modification, alteration or addition of or to any provision
of this Agreement shall be binding unless in writing and executed by or on
behalf of both parties by a duly authorized representative. This Agreement may
not be assigned by either party without the consent of the other party.
6. The undertakings herein shall be binding upon the parties and their
respective affiliates, subsidiaries or successors and shall continue until such
time as the substance of the disclosure has entered the public domain through no
fault or negligence on the part of the recipient, or until permission is
specifically granted in writing to the recipient by the disclosing party to
release or make use of the Information otherwise than as stated herein.
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7. If any one or more of the terms contained in this Agreement shall for
any reason be held to be excessively broad with regard to time, geographic scope
or activity, that term shall be construed in a manner to enable it to be
enforced to the extent compatible with applicable law. A determination that any
term is void or unenforceable shall not affect the validity or enforceability of
any other term or condition.
8. This Agreement shall be governed by and construed under the laws of
the State of Israel.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date first
written above.
THE COMPANY PARTICIPANT
By: By:
------------------------------------- -----------------------------------
Title: Title: GENERAL COUNSEL
---------------------------------- ---------------------------------
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CUSTOMER RETURNS - GUIDELINES
Austria Mikro Systeme Int. AG is committed to deploy first class quality and
reliability assurance for its products, delivery performance and service
activities and to achieve continuous improvement in an its processes and
products. To realize our goals every area focuses on quality in order to ensure
total customer satisfaction. This enables Austria Mikro Systeme Int. AG to
achieve delivery quality of 10ppm (AOQ) or even better. However, if you do have
problems with our products, please follow the guidelines as stated below.
STEP 1:
Please contact our customer service department and ask for a Returned Materials
Authorisation Reference Number.
AUSTRIA MIKRO SYSTEME AG
CUSTOMER SERVICE
SchloB Premstatten
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Tel.: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇
Fax.: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
For correct identification you are kindly requested to provide the original
purchase order number, the Invoice number, the type of material, the affected
quantity and the reason for the complaint. Our customer service department wi1l
then issue a Returned Materials Authorisation Reference Number.
PLEASE NOTE: This Returned Materials Authorisation expires after 60 days. Do not
ship material after 60 days without obtaining a new Returned Materials
Authorisation.
STEP 2
Please prepare all necessary documents for the return and indicate the Returned
Materials Authorisation Reference Number on all your shipping documents.
STEP 3
Please pack samples of the affected products carefully. Use original packaging
if possible and note the Returned Materials Authorisation Reference Number on
the outside of the package. Return the samples of the affected products and send
back the rest of the complaint quantity after completion of failure analysis.
PLEASE NOTE: Devices with cut or damaged leads can not be retested for
functionality.
RESPONSES TO YOUR COMPLAINT
1. CUSTOMER COMPLAINT ACKNOWLEDGMENT
A Complaint Acknowledgement will be provided to you within 24 hours after
receiving your samples.
--------------------------------------------------------------------------------
Page 26 of 27
** Represents material which has been redacted and separately filed with the
commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
Development and Production Agreement: PowerDsine/ Austria Mikro Systeme
--------------------------------------------------------------------------------
2. FAILURE ANALYSIS
The returned devices will be checked retested and investigated physiochemically
if necessary.
3. CORRECTIVE ACTION
Austria Mikro Systeme Int. AG uses the disciplined 8-D problem solving approach,
when corrective actions are necessary to be implemented.
4. RESPONSE
Austria Mikro Systeme Int. AG will send you the detailed failure analysis report
and the 8D-Report, when corrective actions are required. Defect parts will be
replaced or credited.
--------------------------------------------------------------------------------
Page 27 of 27
** Represents material which has been redacted and separately filed with the
commission pursuant to a Request for Confidential Treatment pursuant to Rule 406
under he securities Act of 1933, as amended.
ENCLOSURE 3
Project Schedule
Customer: POWERDSINE
Project: ▇▇▇▇▇▇▇ (14906)
Author: K. IIZER
Date: JULY 9, 2001 (CW28) \/ 9.7.2001
Responsible
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Calendar week 28 29 30 31 32 33 34 35 36 37 38 39
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Friday of cw 3.8. 7.9.
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Device Specification AMS / PowerDsine X
---------------------------------------------- ---------------- -------------------- ---- ---- --- ---- ----- ---- ---- ----
Dev. Spec. Signed AMS / PowerDsine \/ 12.7.2001
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Design, Layout AMS X X X X X X X X X X X
---------------------------------------------- ---------------- ---- ---- ---- ------------------- ---- ----- ---- ---- ----
Preliminary VHDL netlist of dig. part PowerDsine \/ 3.8.2001
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ------------------- ---- ---- ----
Final VHDL netlist of dig. part PowerDsine \/ 16.8.2001
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- -------------------- ----
Provide Backannotation Simulation AMS \/ 31.8.2001
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- --------------------
Approval of Backannotation Sim. PowerDsine \/ 6.9.2001
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
PG Tape AMS
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Fabrication and Assembly AMS
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
ES Delivery ceramic 15 pcs AMS
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
ES Approval (on ceramic ES) PowerDsine
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Generation of Prototypes AMS
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Prototype delivery 25 pcs AMS
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Qualification at PowerDsine PowerDsine
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Prototype Approval by PowerDsine PowerDsine
---------------------------------------------- ---------------- ---- ---- ---- ----- ---- ---- --- ---- ----- ---- ---- ----
Responsible
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Calendar week 40 41 42 43 44 45 46 47 48 49 50 51 52
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Friday of cw 5.10 2.11. 7.12.
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Device Specification AMS / PowerDsine
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Dev. Spec. Signed AMS / PowerDsine
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Design, Layout AMS X
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Preliminary VHDL netlist of dig. part PowerDsine
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Final VHDL netlist of dig. part PowerDsine
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Provide Backannotation Simulation AMS
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Approval of Backannotation Sim. PowerDsine
-------------------------------------------- ---------------- ------------------- ------ ---- ---- ---- ---- ------ ---- ---- ---
PG Tape AMS \/ 5.10.2001
-------------------------------------------- ---------------- ------------------- ------ ---- ---- ---- ---- ------ ---- ---- ---
Fabrication and Assembly AMS X X X X X X
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- --------------------- ---- ---- ---
ES Delivery ceramic 15 pcs AMS \/ 6.11.2001
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ -------------
ES Approval (on ceramic ES) PowerDsine \/ 13.12.2001
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Generation of Prototypes AMS X X
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Prototype delivery 25 pcs AMS
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Qualification at PowerDsine PowerDsine
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Prototype Approval by PowerDsine PowerDsine
-------------------------------------------- ---------------- ---- ---- ---- ---- ------ ---- ---- ---- ---- ------ ---- ---- ---
Responsible
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Calendar week 1 2 3 4 5 6 7 8 9 10 11
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Friday of cw 4.1. 1.2. 1.3.
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Device Specification AMS / PowerDsine
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Dev. Spec. Signed AMS / PowerDsine
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Design, Layout AMS
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Preliminary VHDL netlist of dig. part PowerDsine
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Final VHDL netlist of dig. part PowerDsine
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Provide Backannotation Simulation AMS
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Approval of Backannotation Sim. PowerDsine
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
PG Tape AMS
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Fabrication and Assembly AMS
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
ES Delivery ceramic 15 pcs AMS
---------------------------------------------- --------------------- --- -- --- ----- --- --- -- ------ ---- ---
ES Approval (on ceramic ES) PowerDsine
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Generation of Prototypes AMS X X
---------------------------------------------- ---------------- ---- ---------------- --- --- -- ------ ---- ---
Prototype delivery 25 pcs AMS \/ 11.1.2002
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -- ------ ---- ---
Qualification at PowerDsine PowerDsine X X X X X X
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -------------- ---
Prototype Approval by PowerDsine PowerDsine \/ 22.2.02
---------------------------------------------- ---------------- ---- --- -- --- ----- --- --- -------------- ---