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EXHIBIT 10.34
CONTRACT
CONTRACT CONTRACT # ACE/GDM/01
between PRIME CONTRACT: DAAB07-94-D-AO10
VIASAT, INCORPORATED PRIORITY RATING DO-A7
2290 Cosmos Court
Carlsbad, CA. 92009-1585 SECURITY CLASSIFICATION UNCLASSIFIED
CONTRACT DATE OCT 18TH 1995
and
TERMS SEE EXHIBITS
SPECTRAGRAPHICS CORP RESALE TAX PERMIT # SRFBB 25 - 818208
9707 Waples St. X FOR RESALE NOT FOR RESALE
San Diego, CA 92121 --- ---
QUALITY REQUIREMENTS See exhibits
TYPE OF INSPECTION _______________________
X VIASAT GOV'T OTHER
Source Source Source
VICE-PRESIDENT ADMINISTRATION
/s/ Gregory Monahan
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VIASAT INC.
FIXED PRICE CONTRACT
This FIXED PRICE CONTRACT is entered into as of October 18th 1995, between
ViaSat Incorporated, a California corporation having its principal offices at
2290 Cosmos Ct, Carlsbad, California 92009-1585 (hereinafter referred to as "the
Buyer" or "ViaSat") and SPECTRAGRAPHICS with its principal offices located at
9707 Waples Street, San Diego CA 92121, (hereinafter referred to as "the Seller"
or "SPECTRAGRAPHICS").
WITNESSETH THAT
In consideration of the mutual promises, covenants, and agreements herein set
forth, the Parties agree that the Seller shall furnish and deliver to the Buyer
all the supplies, and perform all the services set forth in this contract, for
the consideration stated herein. The rights and obligations of the Parties to
this contract shall be subject to, and governed by, the following Schedule, and
the General Provisions of Purchase and other documents or specifications
attached hereto or referenced herein.
SCHEDULE
ARTICLE I - SCOPE OF WORK
A. The Seller, as an independent contractor and not as an agent of the Buyer,
shall, in the necessary personnel, material, and facilities, do all things
necessary or incidental to the furnishing and delivery to the Buyer of the goods
and services set forth in EXHIBIT A, attached hereto and incorporated by
reference herein, all in accordance with the specifications and other
requirements applicable thereto and referred to in EXHIBITS B, C, D and E,
attached hereto and incorporated by reference herein. Buyer also reserves the
right to exercise options as specified in EXHIBIT C.
B. ViaSat Inc. has been issued a contract by Magnavox, which is in support of
their prime contract with the U.S. Government, contract number DAAB07-94-D-A010
(hereinafter referred to as the "Prime Contract") which carries a DPAS rating:
DO-A7. ViaSat is relying on the Seller's agreement as set forth in this
contract, and on Seller's performance of same by timely delivery and performance
as part of the basis on which ViaSat intends to fulfill it's obligations. It is
understood that the Seller's goods and services will be utilized by ViaSat in
performance of it's obligations, and that ViaSat will be unable to meet its
obligation to Magnavox, and ultimately the Prime Contract, unless Seller
performs its agreement in a timely manner, as set forth in this contract.
ARTICLE II - PERFORMANCE AND DELIVERY SCHEDULE
A. Time is of the essence in the Seller's performance of this contract. The
Seller shall deliver the goods and services required to be delivered to the
Buyer in accordance with the delivery schedule referenced in EXHIBIT D. In order
to assist Seller with the production start-up, Buyer shall provide Seller with
all material needed by Seller to support the initial deliveries. This comprises
200 sets of material, plus some additional quantities of passive components on
tape and reel. Upon award of this contract, all of this material shall be
acquired by SPECTRAGRAPHICS, at a price not to exceed SPECTRAGRAPHICS' budgeted
cost of that material, as defined in the SPECTRAGRAPHICS detailed quotation
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dated May 11th 1995 and later revised on July 18th 1995. At the time of contract
signing, Seller shall issue a purchase order to Buyer for this material at the
prices stated, and Buyer shall deliver said material promptly to Seller.
B. Seller shall, as a material part of this contract, install at Seller's place
of business, and at Seller's expense, either a GenRad 228X or an HP 3070 testing
device for the purpose of performing In-Circuit Test (ICT) operations as
described in Exhibits A and C, within 120 days of contract signing. Until that
test device is in place and operational, and upon contract signing, Seller shall
use Seller's existing Fairchild 333 testing device (Fairchild) and procure ICT
fixtures and software for use with that device, at Seller's expense.
ARTICLE III - PLACE OF INSPECTION AND ACCEPTANCE
Notwithstanding any prior preliminary inspection and/or acceptance, final
inspection and Acceptance of all goods and services shall be made at ViaSat's
place of business, as part of a complete system test and inspection program.
Acceptance of goods will incorporate Source Inspection activities by ViaSat QA
representatives, which will occur at SPECTRAGRAPHICS' place of business, using
SPECTRAGRAPHICS' inspection devices, equipment and services, as required by
ViaSat. SPECTRAGRAPHICS will promptly develop and publish an In-circuit Test
Procedure (ITP), which will outline SPECTRAGRAPHICS' testing procedures for the
goods referenced in Exhibit A. This ITP will be used by SPECTRAGRAPHICS
personnel in performance of this contract, and may be used for source inspection
activities.
Acceptance of any goods or services shall not be deemed a waiver of any
subsequent acceptance rights or warranties, express of implied, or any other
rights under this contract. Acceptance of the fixtures and ICT software
described in Exhibit A shall take place at Spectragraphics' place of business
when the fixtures are complete. At that time, ownership of the fixtures and the
software shall transfer to Buyer but remain in Seller's possession until further
notice.
ARTICLE IV - CONSIDERATION AND PAYMENT
The Buyer shall, upon submission of proper invoices or vouchers and subject to
any funding limitation, withholding, or set-off provisions contained herein, pay
the Seller a fixed price of $1,116.16 PER SET OF CCAs, according to the pricing
schedules and payment terms set out in EXHIBIT C. Payments shall only be made
upon delivery and acceptance of COMPLETE SETS of CCAs. In computing discount
time, if any, such time shall commence upon Buyer's receipt of proper invoice or
acceptance of items delivered, whichever is later.
ARTICLE V - SUBMISSION OF INVOICES
Original invoices for payments hereunder shall be submitted to the following
address:
ViaSat, Inc.
2290 Cosmos Court
Carlsbad, CA 92009-1585
Attention: Andrew Eccles, Purchasing Manager
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ARTICLE VI - PACKAGING AND DELIVERY
Unless otherwise specified in the applicable Specification(s) or Statement of
Work, packaging and packing of all items for delivery shall be in accordance
with good commercial practice and adequate to assure safe arrival at
destination. In addition, any and all packaging materials used must not be made
from or contain any Class I Ozone Depleting Chemicals. Buyer retains the right
to disallow the use of certain other packaging materials, if such materials
cause an unacceptable environmental hazard.
The delivery point of all items to be delivered by Seller hereunder shall be FOB
destination and, unless the Seller is notified to the contrary, shall be marked
for delivery to:
ViaSat, Inc.
2290 Cosmos Court
Carlsbad, CA 92009-1585
ARTICLE VII - CONFIDENTIALITY OF BUYER'S DESIGN
Seller recognizes that the Buyer will provide proprietary design information to
the Seller prior to and during the performance of this contract. The Seller
agrees to protect and hold confidential all such information in the manner
specified herein, and treat all CCAs developed from this proprietary design
information as ViaSat proprietary. Inclusion of this article shall not
invalidate any Non-Disclosure Agreement (NDA) already executed and in force
between Buyer and Seller.
ARTICLE VIII - REPORTS
The Seller shall furnish Reports, Data and other Documentation as set forth in
Article XXVIII and referenced in exhibits A and B. Seller shall also furnish to
Buyer reports received from suppliers.
ARTICLE IX - DIRECTED SOURCES
In developing this design, Buyer has worked closely with the supplier referenced
below and incurred significant NRE costs during the design phase. In order to
offset these costs and avoid further NRE charges, Buyer directs Seller to
purchase the following part numbers from this supplier, providing that
supplier's pricing is less than or equal to Spectragraphics budgeted cost:
PART NUMBERS SUPPLIER:
PWB-002553-0000 Cirtech, Inc.
PWB-002555-0000 250 E. Emerson Ave.
PWB-002557-0000 Orange, CA 92665
ARTICLE X - PRIORITY RATING
This is a rated Contract certified for national defense use. THE DPAS RATING IS
DO-A7 Seller shall comply with the provisions of the Defense Priorities and
Allocations System (DPAS) regulation (15 CFR 700), including providing written
notice of acceptance or rejection of this Contract within 10 workdays after
receipt of Contract.
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ARTICLE XI - CONTRACT MANAGEMENT
A. The Buyer's Vice President of Administration is designated on the cover sheet
hereof. The Buyer may, by written notice to Seller, change such designation.
B. No provision of this Contract may be waived or changed, except in writing
signed by Buyer's Vice President of Administration. No request, notice,
authorization, direction or order received by the Seller shall be binding upon
either the Seller or Buyer, or serve as the basis for a change in the Contract
cost, fixed fee or any other provision of this Subcontract, unless it was issued
in writing by the Buyer's Vice President of Administration. Designations of
authorized representatives shall be in writing and signed by the Vice President
of Administration. A copy of each such designation, and of each modification or
cancellation thereof, shall be furnished to the Seller. The Seller shall
immediately notify, in writing, the Vice President of Administration whenever a
change request has been received from a representative of Buyer other than the
Vice President of Administration that would affect the terms and conditions,
cost and performances schedule of this Contract.
C. The Buyer's Vice President of Administration may designate a representative
to act as administrative representative under this Contract. Such
representative, if appointed, shall be designated elsewhere in this Contract or
in a letter from the Vice President of Administration to the Seller. The
administrative representative shall represent the Vice President of
Administration in certain phases of the work; however, such representative shall
not be authorized to change any of the terms and conditions or cost or fee of
this Contract and is not an authorized representative within the meaning of
paragraph B of this Article.
ARTICLE XII - FIXED PRICE CONTRACT
This is a Fixed Price Contract. Prices for each deliverable item will remain
fixed at the amounts shown in EXHIBIT C, unless both parties agree to a price
change for some substantial reason. Provisions for initiating changes to pricing
are set out in Article XXVIII.
ARTICLE XIII - RELEASE OF NEWS INFORMATION
No news releases, including photographs and films, public announcements, or
confirmation of same, on any part of the subject matter of this contract or any
phase of any program hereunder shall be made by Seller or Seller's
subcontractors without the prior written consent of the Buyer.
ARTICLE XIV - ORDER OF PRECEDENCE
Any inconsistency in this contract shall be resolved by giving precedence in the
following order: (a) the Schedule; (b) the General Provisions; (c) other
attachments to the Schedule.
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ARTICLE XV - RESIDENT REPRESENTATIVES AND VISITS BY GOVERNMENT PERSONNEL
A. Buyer reserves the right to assign Representatives on an itinerant or
resident basis at Seller's facilities or those of lower-tier subcontractors, for
the purpose of maintaining surveillance activities, including the right to
witness any or all tests performed as part of the requirements of this contract.
Seller shall provide Buyer's Representatives with reasonable facilities and
equipment, and unescorted free access to all areas essential to the proper
conduct of the aforementioned activity throughout all phases of engineering,
manufacturing, testing, packaging, and shipping. In addition, the Seller agrees
to make available to Buyer's Representatives pertinent planning, status, and
forecast information and such other technical and management reporting
information as may be necessary for the Representatives to carry out their
responsibilities.
B. Seller agrees, upon request of Buyer, to allow Buyer's customer or the
Government's Contracting Officer under the Prime Contract, or his/her authorized
representatives, to visit Seller's facilities to review progress and witness
testing pertaining to the requirements of this Subcontract.
C. Seller further agrees to insert and require its Subcontractor to insert, the
substance of this Article, including this paragraph, in each lower-tier
subcontract hereunder.
ARTICLE XVI - PLACE OF PERFORMANCE
The Seller shall perform the work under this contract at its facilities located
at 9707 Waples Street, California 92121 and at such other locations as may be
approved in writing by Buyer in advance of starting performance.
ARTICLE XVII - WARRANTY
Seller shall warrant the goods referenced in Exhibit A in accordance with the
provisions in Exhibit E, Section 15.
ARTICLE XVIII - SPECIAL TEST EQUIPMENT/SPECIAL TOOLING
This Article is not applicable to this contract iteration and is intentionally
left blank at this time.
ARTICLE XIX - GENERAL PROVISIONS
The Buyer's Terms and Conditions of Purchase, contract clauses (FFP Type), dated
1/1/93, and referenced in EXHIBIT E, attached hereto and incorporated herein by
reference, apply to this contract.
ARTICLE XX - CERTIFICATIONS AND REPRESENTATIONS
All written certifications, proposals and representations which Seller has
submitted to Buyer in connection with the award of this contract have been
relied upon by Buyer in issuing this contract. Seller agrees to advise Buyer
promptly, and in writing, should there
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be any change in Seller's status with respect to the matters covered by such
representations and certifications.
ARTICLE XXI - KEY PERSONNEL
The following personnel are identified as key personnel, important to the
successful performance of the work under this contract:
Boann Garry Account Manager
Mark Whellan Director, Quality
John Crankshaw Test Engineer.
The Seller agrees to assign these employees to the performance of the work.
Whenever, for any reason, one or more of the aforementioned employees is
unavailable for assignment for work under this contract, the Seller shall
replace such employee with a person of comparable ability acceptable to Buyer.
The Seller shall inform the Buyer in writing, in advance, whenever such a change
is necessary.
ARTICLE XXII - COST ACCOUNTING STANDARDS
Seller certifies that Seller is exempt from the Cost Accounting Standards
provision referenced in the FAR.
ARTICLE XXIII - NOTICE OF DELAY, OBSOLESCENCE OR RECALL
In addition to its obligations herein with respect to notice of labor disputes,
whenever any other actual or potential event is delaying or threatening to delay
delivery of goods or performance of the services under this contract, Seller
shall give Buyer immediate written notice thereof. In the event of a component
becoming obsolete, or a component production lot being recalled by a
manufacturer, Seller shall give Buyer immediate written notice thereof. In
either of these cases, Buyer and Seller shall determine a timely course of
action and make a change to the contract as provided for in Article XXVIII.
ARTICLE XXIV - PRODUCTION RELEASES AND RELEASE OF SELLER'S
FINANCIAL RECORDS
A. Buyer will authorize Seller to proceed with this contract in three separate
releases. Each release will cover 1,000 sets of EMUT CCAs, and will be dependant
upon Seller's continued good performance in terms of product quality and timely
deliveries. In addition, each release will be governed by Seller's financial
condition during the preceding period. The first release will be automatically
authorized upon signing of this contract. Releases 2 and 3 will be authorized no
later than 30 days prior to the expiration of the previous release, depending
upon the performance factors mentioned in this paragraph. The form of releases 2
and 3 will be a letter written in accordance with Article XXV and issued by
Buyer's authorized representative as defined in Article XI.
B. Seller will provide to Buyer, the following monthly financial reports for the
entire Spectragraphics Corporation, each month for the duration of the
contract.
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Current month's balance sheet
Current month's Income statement
Current month's Cash Flow statement
If this data is normally contained within a standard shareholder's financial
report, such a report is acceptable in lieu. In addition, Seller will provide to
Buyer, Seller's audited quarterly financial reports as they are issued for the
same duration.
C. Seller will inform Buyer of each significant event, management decision or
other factor which will have a significant effect on the financial condition of
the company as such event, decision or factor becomes known. At a minimum,
Seller will disclose to buyer all extraordinary items in the aforementioned
financial data as if Buyer were a shareholder of Spectragraphics Corporation.
D. If, in Buyer's sole opinion, Seller does not perform adequately in any of the
provisions mentioned in paragraph A, Buyer retains the right to terminate this
contract as provided for in FAR 52.249-2 and as referenced in the subcontract
clauses attached to this contract.
ARTICLE XXV - NOTICES
Any notice, consent, demand, or request required or permitted by this contract
shall be in writing and shall be deemed to have been sufficiently given when
personally delivered, properly sent by FAX or Email, or deposited in the United
States mail postage prepaid, addressed as follows:
If to SPECTRAGRAPHICS: SPECTRAGRAPHICS
9707 Waples Street
San Diego, CA 92121
If to ViaSat: ViaSat Incorporated
2290 Cosmos Court
Carlsbad, CA 92009-1585
ARTICLE XXVI - FUNDS ALLOCATED TO SUBCONTRACT
The Prime contract has been fully funded and this Article is therefore not
applicable.
ARTICLE XXVII - NOT TO EXCEED COST AGREEMENT
Prior to the issuance of a change order under this contract, the Buyer may
solicit from the Seller written agreement as to the maximum (in the case of an
increase) adjustments to be made in-the estimated cost and fixed fee, or in the
delivery schedule (or time of performance), by reason of the change. The Buyer
may also solicit such agreement on limitations on the adjustments, to any other
provisions of the contract which may be subject to equitable adjustments by
reason of the change. Any such written agreement shall then be cited in the
change order, and upon its issuance shall be a binding part of the contract. In
no event shall the definitive equitable adjustment exceed the delivery schedule
(or time of performance, or cost or fixed fee) adjustments so established, nor
otherwise be inconsistent with other adjustment limitations so established.
Except with respect thereto, nothing contained herein shall affect the rights of
the parties to an equitable adjustment by reason of the change, pursuant to the
Changes clause of the General Provisions hereof.
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ARTICLE XXVIII - CHANGES
Due to the nature of the final product, and the way in which it is likely to be
used by the end customer, design, schedule and other changes are likely to occur
on multiple occasions throughout the life of the contract. In the event of any
such changes, ViaSat will authorize SPECTRAGRAPHICS to collect information on
change implementation in writing and, relying on this information, ViaSat will
determine the effectivity of all such changes. Such changes will require
SPECTRAGRAPHICS to provide assistance to ViaSat:
A) By using its best efforts to cancel component orders for
discontinued components, and
B) By suggesting implementation methods which will result in
least-cost conformance, and
C) By using its best efforts to implement the change within the
timeframe stated in every such instance.
If a change is proposed by either party, SPECTRAGRAPHICS will provide ViaSat
with a written report, hereinafter referred to as the Implementation Cost
Report, (or ICR) showing the implementation cost of such change, breaking out
all material, labor and overhead charges, and certifying the accuracy of such
report. ViaSat retains the right to audit any such reports at any time during
the execution of the contract. No statement or requirement in this article shall
waive or supersede any other rights of the Buyer. In the event of any conflicts
with FAR or DFAR, those regulations shall have precedence over any requirement
in this article.
In the event that a change results in a change in price, Seller shall provide a
written report to Buyer, stating the reasons for the change in price. This
report shall be different and separate from the ICR, and shall be confined to
the unit costs and subsequent unit prices of ongoing production. Seller shall
adhere to the provisions contained in Articles XIX, and XXXVII. If and when
Seller and Buyer agree on the details of any proposed change, Buyer shall notify
Seller of this agreement in writing, and the record of this change shall become
a permanent part of this contract.
ARTICLE XXIX - DESIGN ACCEPTANCE
Buyer and Seller agree that the production schedule referenced in Exhibit D is
dependent upon Buyer's customer accepting, in a timely manner, Buyer's design
concurrent with the production start-up. In the event that Buyer's customer
requires design or schedule changes during the design acceptance period, Buyer
shall inform Seller in writing that production has been halted or the schedule
changed. Upon receipt of this information, Seller shall stop production and
await further instructions from Buyer. Unless otherwise agreed to in writing,
Seller shall continue to procure material at the rate required by Exhibit D, and
charge Buyer a monthly inventory-carrying charge equal to one and one-half
percent of the Seller's material cost of the cumulative number of undelivered
CCAs affected by the production stoppage.
In the event that design changes must be initiated, these will be performed as
defined in Article XXVIII.
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ARTICLE XXX - ENTIRE AGREEMENT
This contract supersedes any other contract or purchase order awarded by ViaSat
to SPECTRAGRAPHICS in performance of the items referenced in Exhibits A, B, C,
D and E and constitutes the entire agreement between the two parties. This
contract shall not be varied in its terms or conditions by any oral agreement
or representation, or otherwise, than by an instrument in writing of even or
subsequent date thereto, executed by both Seller and Buyer.
The Article and Exhibit titles used herein are for convenience only and shall
in no way be construed as part of this contract or as an indication of the
meaning of the particular Article or Exhibit.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this contract to be
effective as of the day and year first written. This contract consists of:
1. A Title Page
2. A Schedule consisting of nine (9) pages including this Signature page.
3. Exhibits A, B, C, D and E
SELLER BUYER
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SPECTRAGRAPHICS, INCORPORATED. VIASAT, INCORPORATED
BY: /s/ Joe Lynch BY: /s/ Gregory Monahan
TITLED: V.P. Gen. Mgr. TITLE: V. P.
DATE: 10-18-95 DATE: 10/18/95
*** THIS CONCLUDES THE CONTRACT ***