EXHIBIT 10.29
TECHNOLOGY SERVICES AGREEMENT
THIS TECHNOLOGY SERVICES AGREEMENT (the "Agreement") is executed December 20,
1993, and made effective as of the close of business December 17, 1993 (the
"Commencement Date,,) by and between SPECTRADYNE, INC., a Texas corporation
("SPECTRADYNE"), and CERTECH TECHNOLOGY, INC., a Texas corporation ("CERPLEX").
RECITALS
This Agreement is made with reference to the following facts:
A. CERPLEX has been formed by THE CERPLEX GROUP, INC., a Delaware
corporation ("CERPLEX Parent") to engage in the business of providing electronic
component manufacturing and repair operations and management, warehouse and
shipping operations and management and related services. CERPLEX and
SPECTRADYNE believe that, by CERPLEX performing such services for SPECTRADYNE,
CERPLEX will be able to provide such services to SPECTRADYNE at a lower cost
than that which SPECTRADYNE is currently incurring, while CERPLEX will profit on
the performance of its services hereunder.
B. CERPLEX desires to provide to SPECTRADYNE, and SPECTRADYNE desires to
obtain from CERPLEX, the repair of electronic components and the operations and
management of the repair facility, warehouse and shipping operations and
management and related services which SPECTRADYNE currently performs at the
SPECTRADYNE Facilities, as defined below.
C. In order to enable CERPLEX to provide such services from and after the
Commencement Date, SPECTRADYNE desires to make available to CERPLEX and CERPLEX
desires to use, sublease and/or purchase, on the terms and conditions set forth
in this Agreement, certain resources used by SPECTRADYNE to provide the
services. In addition, CERPLEX desires to hire certain of SPECTRADYNE's
employees.
D. Concurrently with the execution of this Agreement, the parties are
entering into that certain lease as defined in Section 4.1 setting forth the
terms and conditions upon which CERPLEX will lease space from SPECTRADYNE.
Therefore, the parties agree as follows:
ARTICLE 1
AGREEMENT AND TERM
1.1 AGREEMENT. During the term of this Agreement, CERPLEX shall
supply to SPECTRADYNE and SPECTRADYNE shall purchase from CERPLEX electronic
component manufacturing and repair operations and management services, warehouse
and shipping operations and related services as more particularly described in
Article 3 of this Agreement.
1.2 TERM - EXTENSION - EARLY TERMINATION.
1.2.1 TERM - EXTENSION. The term of this Agreement shall begin on
the Commencement Date and, unless terminated early in accordance with the
provisions hereof, shall expire five (5) years from the Commencement Date (the
"Term"). The Term shall be automatically extended for one (1) year (each such
extension being referred to as an "Extension Term") on the fifth Anniversary
Date and each Anniversary Date thereafter, unless one of the parties delivers a
written notice to the other party not later than ninety (90) days before such
Anniversary Date that such party does not wish for the term to be so extended,
in which case the term shall expire at the end of the Term or Extension Term, as
the case may be.
1.2.2 EARLY TERMINATION. Notwithstanding the foregoing, either party
may terminate this Agreement on 12 months notice by delivering written notice of
termination to the other party specifying this Section 1.2-2.
ARTICLE 2
DEFINITIONS
For the purposes of this Agreement, the following words and phrases
shall have the following meanings:
"Additional SPECTRADYNE FRUs" shall have the meaning set forth in
Section 3.2.1.
"Affiliate" of a party shall mean any entity controlled by, controlling or
under common control with that party.
"Anniversary Date" shall mean the date twelve (12) months from the
Commencement Date and every successive twelve month anniversary of such date.
"CERPLEX Parties" shall mean CERPLEX, the CERPLEX Parent and their
subsidiaries, Affiliates and employees.
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"Employee Plans" shall mean all "employee benefit plans" as defined in
Section 3(3) of the Employee Retirement income Security Act of 1974, as amended
("ERISA"), all "multiemployer plans" as defined in Section 3(37) of ERISA, all
specified fringe benefit plans as defined in Section 6039D of the Internal
Revenue Code of 1986, and all other compensation plans, agreements or policies
and any trust, escrow or other funding agreement related to such plans, which
are maintained or contributed to by SPECTRADYNE or with respect to which
SPECTRADYNE has any liability, regardless of whether funded or not.
"Enhancements" means any changes, enhancement, corrections, deletions
or modifications to: (i) any product, hardware, source code, software, process,
method or technique, or any of their function or functions, and (ii) all tasks
performed throughout the development cycle of the same, including, without
limitation, analysis, design, programming and testing.
"Hardware" means the physical transmitting, receiving and decoding
equipment; computers and related equipment, including, but not limited to,
central processing units and other processors; peripheral devices such as
storage devices, printers, terminals and other input and output devices; IRDS;
CDVRO Systems and mounts; and/or other tangible mechanical and electronic
equipment, such as controllers, modems, communications and telecommunications
equipment (voice, data and video) and networks intended for the input, storage,
manipulation, communication, transmission and retrieval of information and data.
"Initial SPECTRADYNE FRUs" shall have the meaning set forth in Section
3.2.1.
"Intellectual Property Rights" shall mean, without limitation, all
letters patent and patent applications worldwide and all divisionals,
continuation, continuation of parts, reissues, renewals, modifications,
additions and extensions of the same, and any and all other intellectual
property, including, without limitation, all copyrights, Trademarks, service
marks trade names, trade secrets, whether now owned or hereinafter acquired in,
and relating to, any Product, Hardware, Source Code, Software, process, method
or technique.
"New SPECTRADYNE Products" shall mean: (a) all manufactured Products
(excluding Software) designed by SPECTRADYNE or on its behalf (whether by the
CERPLEX Parties or third parties), and (b) all Products for which SPECTRADYNE
obtains manufacturing rights from third parties.
"Price Schedule" shall have the meaning set forth in Section 8.1.1 and
Schedule 8.1.
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"Products" shall mean, without limitation, any and all products, including
their related Hardware, Systems, Software and the specific Proprietary
Information pertaining thereto and any Enhancements thereto.
"Proprietary Information" shall have the meaning set forth in Section 7.1.
"Required Consents" shall mean any consents required to be obtained by
either party for the consummation of the transactions contemplated by this
Agreement.
"Services" shall mean those technology services provided by CERPLEX to
SPECTRADYNE, as more particularly described in Section 3.1.
"Software" shall mean: (i) the computer programs in object code (except
when Source Code is expressly called for as set forth herein, in which case the
term "Software" includes Source Code and object code) together with input and
output formats, program listings, narrative descriptions, operating instructions
and supporting documentation and will include the tangible media upon which such
programs and documentation are recorded as the same are more particularly
described on Schedule 7.2; (ii) the specific Proprietary Information pertaining
thereto, and (iii) any Enhancements thereto.
"Source Code" shall mean (i) the Software described in Schedule 7.2
and delivered to Cerplex, (ii) the Specific Proprietary Information pertaining
thereto, and (iii) any Enhancements thereto.
"SPECTRADYNE Facilities" shall mean the facilities, located at 1501
North Plano Road, Richardson, Texas that are the subject of that certain lease
attached hereto as Exhibit 4.1.
"SPECTRADYNE FRUs" shall mean the meaning set forth in Section 3.2.1.
"SPECTRADYNE Intellectual Property Rights" shall mean any and all
Intellectual Property Rights SPECTRADYNE may have in the SPECTRADYNE Property,
whether owned or hereinafter acquired by or licensed on a non-exclusive,
transferable basis to SPECTRADYNE, including such Intellectual Property Right
irrevocably assigned to SPECTRADYNE by the CERPLEX Parties pursuant to Article 7
hereof, excepting, however, any Intellectual Property Rights in which
SPECTRADYNE has granted an exclusive license to a party other than CERPLEX.
"SPECTRADYNE Production Assets" shall have the meaning set forth in
Section 7.1.
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"SPECTRADYNE Products" shall mean all Products (excluding software)
being manufactured by SPECTRADYNE at the time of the Closing.
"SPECTRADYNE Property" shall mean, without limitation, any and all
parts or components, whether now owned or hereinafter acquired, by Spectradyne,
the CERPLEX Parties (or by any other third party performing services on behalf
of SPECTRADYNE) in or relating to Trademarks, the Proprietary Information, the
SPECTRADYNE Products, New SPECTRADYNE Products, SPECTRADYNE FRUs, SPECTRADYNE
Production Assets, SPECTRADYNE Systems, and any Enhancements to the same.
"SPECTRADYNE Systems" shall mean the Hardware and Software described
on Schedule 7.2, which describes the individual Hardware and general operating
components and their functions, and such other Hardware and Software which any
of the CERPLEX Parties have access to or is delivered to any of the CERPLEX
Parties hereunder.
"Term" shall mean the Term and any extensions thereof pursuant to
Section 1.2.
"Trademarks" shall mean the trademarks and trade names, "SPECTRADYNE"
or "Spectravision," and such other trade names or trademarks (whether registered
or unregistered) now or hereinafter used by SPECTRADYNE.
Other capitalized terms used in this Agreement are defined in the
context in which they are used and shall have the meanings indicated by such
use.
ARTICLE 3
SERVICES AND PRODUCTS TO BE PROVIDED BY CERPLEX
3.1 SCOPE OF WORK. Subject to the terms and conditions of this
Agreement and SPECTRADYNE's rights hereunder, CERPLEX shall provide to
SPECTRADYNE (i)(A) manufacturing, warehousing, inventory management, shipping,
and receiving services as set forth herein with regard to the SPECTRADYNE
Products referenced on the Price List attached as Schedule 8.1 and to such New
SPECTRADYNE Products as requested by SPECTRADYNE from time to time and as
described in this Agreement (B) repair, modification and refurbishing services
with respect to the SPECTRADYNE Products, New SPECTRADYNE Products, and certain
Field Replaceable Units described below including return of such Products and
FRUs to the location, in the manner, within the time periods (which shall be
consistent with SPECTRADYNE's historic experience with repair-times in the 12-
month period preceding the Commencement Date), and at such times as specified by
SPECTRADYNE from time to time, and (C) certain other services described below
with regard to certain Field Replaceable
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Units described below ((A), (B) and (C) referred to herein collectively as the
"Services") (ii) certain "proto-build" services with regard to New SPECTRADYNE
Products if and as requested by SPECTRADYNE from time to time and as described
in this Agreement, and (iii) such other services as may be agreed upon by the
parties. CERPLEX shall not provide SPECTRADYNE Products or New SPECTRADYNE
Products to or for any other party, and such prohibition shall survive the
termination or expiration of this Agreement.
3.2 FIELD REPLACEABLE UNITS
3.2.1 ACCEPTANCE OF SPECTRADYNE FRUS. As of the Closing Date,
CERPLEX shall accept possession of certain field replaceable units (the "Initial
SPECTRADYNE FRUs") as described in Schedule 3.2.1 attached hereto and
incorporated herein by this reference, which are to be repaired hereunder.
SPECTRADYNE has completed an inventory, as set forth in Schedule 3.2.1, of the
Initial SPECTRADYNE FRUs which sets forth the number and types of Initial
SPECTRADYNE FRUs accepted by CERPLEX. During the sixty (60) day period
following CERPLEX's acceptance of the Initial SPECTRADYNE FRU'S, CERPLEX and
SPECTRADYNE shall mutually conduct an audit and usefulness appraisal of such
inventory and reach a final determination about the number and types of Initial
SPECTRADYNE FRUs accepted by CERPLEX. From time to time during the term of this
Agreement, CERPLEX shall accept possession of additional field replaceable units
("Additional SPECTRADYNE FRUs") (Initial SPECTRADYNE FRUs and Additional
SPECTRADYNE FRUs collectively shall be referred to as "SPECTRADYNE FRUs").
CERPLEX shall be liable for any and all expenses incident to its possession of
the SPECTRADYNE FRUs. CERPLEX shall not sell, lease or otherwise transfer
possession of any SPECTRADYNE FRUs to any party other than SPECTRADYNE, without
the express written consent of SPECTRADYNE.
3.2.2 REPAIR OF SPECTRADYNE FRUS; PRICES. CERPLEX shall repair,
modify and refurbish the SPECTRADYNE FRUs as provided in Section 3.1(i)(B)
above. The price for repair, modification, and refurbishment of SPECTRADYNE
FRUs shall be as set forth in Schedule 3.2.2 attached hereto and made a part
hereof.
3.2.3 TITLE. Title to the SPECTRADYNE FRUs shall remain in SPECTRADYNE
at all times.
3.2.4 WAREHOUSE SERVICES; RECORDS AND RIGHT TO INSPECT AND AUDIT
INVENTORY. With respect to all SPECTRADYNE FRUs received from SPECTRADYNE
pursuant to this Article, CERPLEX shall provide warehousing, storage, and
inventory control services and shall keep accurate records regarding the
disposition and uses of such SPECTRADYNE FRUs. CERPLEX shall, upon
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request by SPECTRADYNE, allow SPECTRADYNE or its designated representatives to
have access to such records as they may request.
3.2.5 INSURANCE. During the Term of this Agreement, CERPLEX shall
keep the SPECTRADYNE FRUs insured against-damage, destruction and loss of every
kind including, without limitation, loss by fire, theft and/or flood in an
amount equal to the fair market value of such parts and under a form of policy
sufficient to cover all SPECTRADYNE FRUs then in the possession of CERPLEX.
SPECTRADYNE shall be named as a loss payee under such policies, and the policy
or policies of insurance shall be delivered to SPECTRADYNE. Insurer shall be
obligated under such policy to notify SPECTRADYNE in writing thirty (30) days in
advance of any cancellation or expiration of any such policy of insurance.
CERPLEX shall pay all premiums or other expenses of the insurance.
3.2.6 FRU ANNUAL ADJUSTMENT. Upon the termination or expiration
of this Agreement and upon each Anniversary Date, CERPLEX shall conduct an
inventory of the SPECTRADYNE FRUs, in which SPECTRADYNE may participate to the
extent SPECTRADYNE deems appropriate, and to the extent CERPLEX, through its
records, is unable to account for the SPECTRADYNE FRUs less 1% in dollar amount
for shrinkage, then CERPLEX shall, at its option, either procure replacements
for SPECTRADYNE or pay to SPECTRADYNE an amount equal to the fair market value
of such unaccounted for SPECTRADYNE FRUs in excess of said shrinkage allowance.
3.2.7 BEST EFFORTS SUPPLY OF SPECTRADYNE FRUS. SPECTRADYNE
covenants that it will use its best efforts to ensure SPECTRADYNE FRUs are
returned to it and made available to CERPLEX. In the event the number of usable
SPECTRADYNE FRUs provided to CERPLEX is insufficient to enable CERPLEX to
perform its obligations hereunder without purchasing additional SPECTRADYNE
FRUs, CERPLEX shall provide SPECTRADYNE with notice of the same. SPECTRADYNE
shall promptly acquire and deliver to CERPLEX, at SPECTRADYNE's cost and
expense, that number of SPECTRADYNE FRUs required by CERPLEX. Any delay in the
performance by CERPLEX of its obligations hereunder due to a shortage of
SPECTRADYNE FRUs shall not be considered a breach of CERPLEX's obligations under
this Agreement.
3.3 SUBCONTRACTING; PROFESSIONAL PERFORMANCE OF SERVICES. CERPLEX
may subcontract any manufacturing or repair work that it performs under this
Agreement, provided that CERPLEX shall not contract with any subcontractor that
is not a subsidiary or affiliate of CERPLEX or the CERPLEX Parent without first
receiving the written consent of SPECTRADYNE to such subcontractor, such consent
not to be unreasonably withheld or delayed, and provided further, that any
subcontractor shall agree to be bound by the provisions of this Agreement,
including without limitation the provisions of Section 3.11,
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Section 11.2, Article 7 and Section 12.2. CERPLEX agrees that any and all
Services rendered to SPECTRADYNE by CERPLEX, or any third party performing the
Services on behalf of CERPLEX, shall be performed in a timely manner to
professional standards by qualified personnel and in accordance with the
operational and management methodologies and requirements specified by
SPECTRADYNE from time to time.
3.4 RISK OF LOSS. Any loss from the destruction of any SPECTRADYNE
Products or New SPECTRADYNE Products, as the case may be, whether completed or
partially completed, other than FRUs, that may occur while such Products are in
the possession or custody of CERPLEX (regardless of whether title to such
Products has passed to SPECTRADYNE) shall be borne by CERPLEX. Thereafter any
such loss from destruction, breakage, nondelivery, or otherwise, however caused,
shall be borne by SPECTRADYNE unless such loss is caused by some act or omission
of duty on the part of CERPLEX.
3.5 TRANSFER OF TITLE. The title to SPECTRADYNE Products and New
SPECTRADYNE Products, as the case may be, whether completed or partially
completed, shall pass to SPECTRADYNE upon delivery and acceptance of such
SPECTRADYNE Products or New SPECTRADYNE Products.
3.6 SERVICE and Repair WARRANTIES. CERPLEX is familiar with the
requirements of SPECTRADYNE and of SPECTRADYNE's intended use of the SPECTRADYNE
Products and New SPECTRADYNE Products and SPECTRADYNE FRUs to be delivered to
SPECTRADYNE hereunder (the "Work"). CERPLEX warrants that during the period set
forth in Section 3.7 below, the Work (whether performed by CERPLEX or by a
subcontractor) will meet, comply and conform to all functional, performance and
reliability requirements as set forth in the applicable specifications for that
item of work and shall be free from errors and defects in workmanship.
3.7 TERM OF WARRANTY. Notwithstanding any delivery, inspection and
acceptance of any Work delivered to SPECTRADYNE hereunder, at any time within
ninety (90) days from the date work is delivered to SPECTRADYNE, if the work
fails to conform to the provisions of the warranty set forth in Section 3.6,
SPECTRADYNE shall return the Work to CERPLEX and shall specify in writing the
manner in which the work fails to meet the warranty. CERPLEX shall, entirely at
its own expense, promptly repair or replace such Work as may be necessary to
bring the Work into conformity with the warranty set forth in Section 3.6.
CERPLEX shall ship such Work, at CERPLEX's expense, to the SPECTRADYNE facility
designated by SPECTRADYNE in accordance with SPECTRADYNE's instructions.
Notwithstanding the foregoing, the foregoing warranty remedy shall not apply to
work that does not conform to the warranty due to misuse of the work by
SPECTRADYNE or other third parties.
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3.8 DISCLAIMER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET FORTH IN
SECTION 3.6, CERPLEX DISCLAIMS ALL COMMERCIAL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE, WHETHER ARISING BY LAW OR BY REASON OF CUSTOMER USAGE
IN THE TRADE. THE REMEDY PROVIDED IN SECTION 3.7 IS THE EXCLUSIVE REMEDY UNDER
SUCH WARRANTY AND IN LIEU OF ALL OTHER REMEDIES PROVIDED BY LAW IN RESPECT OF
SUCH WARRANTY. CERPLEX'S LIABILITY UNDER THE WARRANTY IS ALSO LIMITED BY
SECTION 12.1.3.
3.9 THIRD PARTY WARRANTIES. If any third party supplies components
to CERPLEX for use in products supplied to SPECTRADYNE, CERPLEX shall make
reasonable efforts to pass through to SPECTRADYNE any warranties made by such
third-party supplier to the extent permitted under such warranties. To the
extent such warranties are passed through to SPECTRADYNE, SPECTRADYNE shall have
the right to directly enforce any such warranty against the third-party
supplier, as well as CERPLEX's warranty provided above.
3.10 NEW EQUIPMENT OR PROJECTS. In the event that SPECTRADYNE
desires a manufacturing-related product, "proto-build" services, or other
services with regard to New SPECTRADYNE Products that is not being provided to
SPECTRADYNE by CERPLEX hereunder, SPECTRADYNE shall provide CERPLEX the
opportunity to provide such product or service. SPECTRADYNE shall describe the
product, "proto-build" services or other service in writing to CERPLEX and
CERPLEX shall respond within a reasonable time period as to its proposed pricing
structure and level of service. After review of the pricing structure and level
of service proposed by CERPLEX, SPECTRADYNE may elect not to have CERPLEX
provide such new product, "proto-build" services, or other service if
SPECTRADYNE is able to procure such product or service at any equal or higher
level of service from any other source on more favorable terms and conditions,
or either.
3.11 NON-COMPETITION. Due to CERPLEX's access to SPECTRADYNE's trade
secrets and intellectual property during the term of this Agreement and the
actual and irreparable damage to SPECTRADYNE that a disclosure of such
confidential information will cause, neither CERPLEX nor any of its
subcontractors (including without limitation subcontractors that are affiliates
and subsidiaries of CERPLEX and the CERPLEX Parent) ("CERPLEX Entity") during
the Term of this Agreement shall directly or indirectly contract with any person
that at the time such contract is entered into competes with SPECTRADYNE in the
provision of in-room video entertainment or interactive services, provided, that
if such person thereafter competes with SPECTRADYNE then any CERPLEX Entity with
whom such person has a contract will, at the request of
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SPECTRADYNE, neither extend or renew its contract with such person beyond the
term existing when SPECTRADYNE makes its request. If CERPLEX obtains actual
knowledge that an affiliate or subsidiary of CERPLEX or the CERPLEX Parent that
is not a subcontractor of CERPLEX under this Agreement has directly or
indirectly contracted with any person that competes with SPECTRADYNE in the
provision of in-room video entertainment or interactive services, CERPLEX shall
promptly give SPECTRADYNE notice of such contract. Subject to the foregoing, to
its obligations to supply SPECTRADYNE in accordance with SPECTRADYNE's purchase
orders, and to its obligation to refrain from manufacturing or using SPECTRADYNE
Products for the benefit of anyone other than SPECTRADYNE, CERPLEX may
manufacture any other products for any other person.
3.12 WAREHOUSING SERVICES
3.12.1 SERVICES. CERPLEX shall provide warehousing, inventory
management, and storage services ("warehousing services") for up to an amount of
warehouse space equal to that amount of warehouse and storage space at
SPECTRADYNE's manufacturing facility and at off-site miniwarehouses being used
by SPECTRADYNE for warehousing and storage on the Commencement Date ("Initial
Warehouse Space") with respect to (a) the finished goods inventory of
SPECTRADYNE Products and New SPECTRADYNE Products manufactured by CERPLEX
pursuant to this Agreement, (b) SPECTRADYNE's inventory of field installation
kits and equipment, (c) SPECTRADYNE's inventory of obsolete raw materials used
or previously used in the production of SPECTRADYNE Products, and (d) such other
items as requested by SPECTRADYNE from time to time. Both the cost of the
Initial Warehouse Space and the cost of such warehousing services shall be
included in the price for SPECTRADYNE Products charged pursuant to Article 8 of
this Agreement and in any price quoted by CERPLEX for any New SPECTRADYNE
Product. CERPLEX may separately charge for the cost of warehousing services,
and pass through to SPECTRADYNE without mark-up the cost of warehouse and
storage space, for any warehouse space in excess of the Initial Warehouse Space.
3.12.2 LOCATION OF STORAGE. CERPLEX's warehousing, inventory
management, and storage services as set forth above shall be carried out
initially at SPECTRADYNE's existing warehouse facilities and at such other
warehouse facilities as CERPLEX may determine. SPECTRADYNE shall arrange for
CERPLEX to have the use of SPECTRADYNE's existing off-site warehouse facilities.
SPECTRADYNE and CERPLEX shall consult with each other to determine if it is
advisable to sublease or assign SPECTRADYNE's existing off-site warehouse
facilities to CERPLEX. Any warehouse facilities used by CERPLEX shall be either
under the control and supervision of CERPLEX or in a bonded public warehouse.
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3.12.3 REPORTS. CERPLEX shall maintain accurate records of, and
shall provide monthly activity reports and a perpetual balance and
reconciliation to SPECTRADYNE with respect to, the inventory of products as to
which CERPLEX is providing warehousing services. CERPLEX shall, upon request by
SPECTRADYNE, allow SPECTRADYNE or its designated representatives access to
warehouse space and to the inventory records maintained by CERPLEX. SPECTRADYNE
shall have the right, at its expense, to audit the inventory and warehouse
records of CERPLEX periodically.
3.12.4 SHRINKAGE. Upon the termination or expiration of this
Agreement and upon each Anniversary Date, CERPLEX shall conduct an inventory of
the products as to which CERPLEX is providing warehousing services. SPECTRADYNE
may participate in such inventory to the extent SPECTRADYNE deems appropriate.
To the extent that CERPLEX through its records is unable to account for the
inventory of the products as to which CERPLEX is providing warehousing services
less 0.5% in dollar amount for shrinkage, then CERPLEX shall, at its option,
either procure replacements for SPECTRADYNE or pay to SPECTRADYNE an amount
equal to the fair market value of such unaccounted-for inventory in excess of
such shrinkage allowance.
3.13 MANUFACTURING SUPPORT. CERPLEX acknowledges that manufacturing
engineering and production engineering support are an integral and essential
part of the current processes associated with the manufacture of SPECTRADYNE
Products. CERPLEX will provide such manufacturing engineering and production
engineering support services during the 12 months following the Commencement
Date at a level that is at least substantially similar to that which has
historically been required to manufacture SPECTRADYME Products during the 12-
month period preceding the Closing Date at no additional cost to SPECTRADYNE.
After said 12-month period, CERPLEX shall provide at no additional cost to
SPECTRADYNE on an ongoing basis that level of manufacturing engineering and
production engineering support as is customarily provided to customers by
contract manufacturers.
ARTICLE 4
CERPLEX RIGHTS OF ACCESS AND OCCUPANCY
OF CERTAIN OFFICE AND WAREHOUSE SPACE
4.1 LEASE OF SPECTRADYNE SPACE. CERPLEX shall have the right to use,
enjoy and occupy such space and related utilities and services as described and
on terms and conditions as set forth in that certain Lease by and between
SPECTRADYNE and CERPLEX of even date herewith, attached hereto as Exhibit 4.1
(the "Lease"). In the event this Agreement is terminated by either party or
this Agreement expires at the end of the Term, the Lease shall be terminable in
accordance with the provisions thereof.
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4.2 GENERAL.
4.2.1 ACCESS. Certain executives and designated employees of both
CERPLEX and SPECTRADYNE shall be permitted such access to the other party's
offices at the SPECTRADYNE Facilities as is reasonably necessary to permit the
performance or administration of this Agreement, provided that, if requested by
the other party, each such person will execute a Confidentiality Agreement, in
form and substance acceptable to the other party.
4.2.2 COOPERATION. The parties will cooperate with each other and
will act reasonably and in good faith in coordinating the efficient use of the
SPECTRADYNE Facilities.
ARTICLE 5
TRANSITION
5.1 COOPERATION AND ASSISTANCE. The parties shall cooperate in arranging
for an orderly, effective transition of the provision of services from
SPECTRADYNE to CERPLEX effective as of the Commencement Date and shall cooperate
in effectuating their respective obligations under this Agreement.
5.2 PERSONNEL.
5.2.1 TRANSFER OF PERSONNEL. SPECTRADYNE shall make available to
CERPLEX for job interviews all manufacturing and repair employees (including
managers) of SPECTRADYNE. CERPLEX shall interview and make conditional offers
of employment to all of the employees listed on Schedule 5.2 (the "Employees").
Before accepting such conditional offer of employment each Employee, shall be
required to resign his/her employment with SPECTRADYNE. SPECTRADYNE shall be
responsible for any costs, such as all vested and accrued costs for vacation,
pensions, and other employee benefits payable to such Employees in connection
with their resignation. The Employees who accept job offers shall commence
employment (conditioned on meeting post-offer conditions) with CERPLEX on the
Commencement Date (the "Start Date"). CERPLEX shall be liable for any and all
costs associated with such Employees from and after the Start Date. For one (1)
year after the Start Date, CERPLEX shall not, without SPECTRADYNE's consent,
employ any person who was a manufacturing and repair employee of SPECTRADYNE and
who was not given or who did not accept an offer of employment from CERPLEX
prior to the Start Date.
5.2.2 EMPLOYEE PLANS. There have been no prohibited transactions
or other breaches or violations of any law applicable to the Employee Plans that
would subject CERPLEX to any liability. No condition exists that will subject
CERPLEX or any of its employees to any material excise tax, penalty tax,
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fine or any other material liability related to any Employee Plan. There are no
agreements which will provide payments to any officer, employee, shareholder or
highly compensated individual which will be "parachute payments", under Section
28OG of the Code subject to tax under Section 4999 of the Code for which CERPLEX
would have any withholding liability.
5.2.3 WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT. Both before
and after the Commencement Date, CERPLEX and SPECTRADYNE shall cooperate with
each other to meet all requirements of the worker Adjustment and Retraining
Notification Act, 20 U.S.C. (S)(S) 2101-09.
5.2.4 NO HIRING OF OTHER PARTY'S EMPLOYEES. The parties agree
that during the Term of this Agreement and for six (6) months after the
termination or expiration of this Agreement neither party nor any of such
party's Affiliates will solicit, without the prior written consent of the other
party, any person employed then or within the preceding twelve (12) months by
such other party or such other party's Affiliates, except that in the event this
Agreement is terminated pursuant to Section 11.1 hereof, this provision shall
not apply to the non-breaching party.
5.3 DATA PROCESSING SUPPORT.
SPECTRADYNE shall continue at its expense to operate its systems and
data processing support services as currently operated in support of the
existing manufacturing operations as may be necessary to assist CERPLEX in
performing the Services under this Agreement for a period up to six (6) months
after the date of this Agreement or until CERPLEX completes installation of its
own systems and data processing support services.
ARTICLE 6
OPERATIONS MANAGEMENT
6.1 DESIGNATED REPRESENTATIVES.
6.1.1 APPOINTMENT AND DUTIES. CERPLEX and SPECTRADYNE shall each
appoint an individual (and one deputy to serve in the case of such individuals
absence) with overall responsibility for monitoring CERPLEX's performance of
Services and addressing any performance deficiencies under this Agreement (the
"Designated Representatives"). Subject to and in accordance with the terms and
requirements of this Agreement, the Designated Representatives (or their
deputies if a Designated Representative is absent) shall meet upon the request
of either party but at least monthly, to:
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(i) review CERPLEX's performance, coordinate the provision of
Services to SPECTRADYNE and discuss future SPECTRADYNE requirements;
(ii) ensure that adequate CERPLEX personnel are available and are
provided the tools, training and support necessary;
(iii) modify, pursuant to the terms and conditions in Section
6.2, Service requirements, response times, priorities for service and
performance standards by which the services shall be measured and managed as
provided herein;
(iv) serve as the principal interface between SPECTRADYNE and
CERPLEX with respect to all issues relating to the Services;
(v) review SPECTRADYNE responsibilities and any failure by
SPECTRADYNE to conform therewith;
(vi) discuss rate and pricing issues;
(vii) discuss and effect any other program management matter
that may arise from time to time; and
(viii) attempt to resolve any disputes hereunder in accordance
with Article 13 hereof.
6.2 SERVICE MODIFICATIONS. In the event that SPECTRADYNE wishes to
request modifications in the Services, including additions, deletions and
rearrangements ("Service Modifications"), SPECTRADYNE shall submit such requests
to CERPLEX in writing. CERPLEX will promptly provide SPECTRADYNE with good
faith estimates of the cost, if any, to SPECTRADYNE of such Service
Modifications and will advise as to the most cost effective, efficient means of
implementing such requested Service Modifications (the "Modification Estimate").
If SPECTRADYNE approves the Modification Estimate in writing to CERPLEX then
CERPLEX shall implement the Service Modification and SPECTRADYNE shall pay the
appropriate charges, if any, in accordance with the agreement of the parties as
confirmed in a written Modification Agreement.
6.3 MUTUAL COOPERATION. Each party agrees to provide all cooperation
reasonably necessary to effect additions, modifications, relocation and removals
of equipment, facilities and personnel requested by the other party necessary
for such party to meet its contractual commitments in a timely, efficient
manner.
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ARTICLE 7
SYSTEMS AND RELATED PROPRIETARY RIGHTS
7.1 PROPRIETARY INFORMATION. "Proprietary Information" shall include,
but not be limited to, all information communicated to one party by the other
during the Term of this Agreement which relates in any way to the communicating
party's business including, but not limited to, that information which
communicates directly or indirectly, the customer lists, pricing, methods,
processes, financial data, lists, statistics, software, systems or equipment,
programs, research, development, techniques, strategic plans, operating data, or
related information of each of the parties and/or its or their clients and
suppliers, concerning past, present, or future business activities of said
entities. Proprietary Information of SPECTRADYNE shall include certain
SPECTRADYNE assets used or useful in the manufacture or repair of the
SPECTRADYNE Products, New SPECTRADYNE Products, SPECTRADYNE FRUs, including but
not limited to, product-specific processes, technology (including, without
limitation, the Work, Proto-Build Services or other Services provided by CERPLEX
to SPECTRADYNE), tooling, production fixtures, automatic assembly equipment
fixtures and programs, test fixtures, test cabling and test programs
("SPECTRADYNE Production Assets"). Notwithstanding the foregoing, Proprietary
Information shall not include the following: (i) information which at the time
of disclosure is in the public domain, or which later becomes part of the public
domain by publication or otherwise through no breach of this Agreement and (ii)
information which either party can demonstrate was independently developed by
such party without reliance upon the Proprietary Information.
7.1.1. CIRCUMVENTION OF PROPRIETARY INFORMATION. The CERPLEX Parties
shall not reverse assemble, reverse compile, reverse interrogate, reverse decade
or reverse engineer the SPECTRADYNE Systems, including the Source Code or any
part thereof.
7.2 GRANT OF LICENSE. SPECTRADYNE grants to CERPLEX and CERPLEX accepts a
non-exclusive, indivisible, revocable and nontransferable license to use the
Intellectual Property Rights for the sole Purpose of using the Intellectual
Property Rights in the development, manufacture, repair, servicing, and testing
of, or incorporating or merging the Intellectual Property Rights into, the
SPECTRADYNE Products, or New SPECTRADYNE Products to be sold only to SPECTRADYNE
or its designee and repairing, modifying and/or refurbishing the same and the
SPECTRADYNE FRUs for SPECTRADYNE's sole use and benefit under the terms of this
Agreement. The license granted hereby shall not include any transfer (other than
the above license) from SPECTRADYNE to CERPLEX of any of the SPECTRADYNE
Intellectual Property Rights. Each of the CERPLEX Parties acknowledge and agree
that the SPECTRADYNE
15
Intellectual Property Rights shall remain the sole and exclusive property of
SPECTRADYNE.
7.2.1 DELIVERY OF SOURCE CODE. In conjunction with SPECTRADYNE's
delivery of the SPECTRADYNE Systems to CERPLEX, SPECTRADYNE shall deliver to
CERPLEX one (1) copy of the Source Code for the software described on Schedule
7.2 only in the most current version as of the date hereof for the software
listed on Schedule 7.2.
7.2.2 MODIFICATION AND USE OF SOURCE CODE. The license granted
hereby shall include the right to use of the Source Code to modify or enhance
the SPECTRADYNE Systems for the sole and explicit purpose of incorporating,
testing or merging the SPECTRADYNE Systems and any Enhancements thereto into the
SPECTRADYNE Products or the New SPECTRADYNE Products to be sold only to
SPECTRADYNE, or its designee, and repairing, modifying and/or refurbishing the
same and the SPECTRADYNE FRUs for SPECTRADYNE's sole use and benefit under the
terms of this Agreement. Any use of the Source Code and/or the SPECTRADYNE
System, which is not specifically authorized herein, shall be prohibited, unless
such use is specifically approved in writing by SPECTRADYNE. A separate license
shall be required for use of the SPECTRADYNE Systems, including any Source
Codes, in connection with any other Product, including, by way of example, the
manufacturing, developmentation, repair, testing or servicing of any Product,
and SPECTRADYNE shall have no obligation to grant or provide such license. Upon
request by SPECTRADYNE, CERPLEX shall deliver a list of all Enhancements made by
all of the CERPLEX Parties to date, and maintain all files respecting any
Enhancements for a period of at least five (5) years after the termination of
this Agreement. Any and all copies of the Source Code, in whole or in part,
delivered to or developed by SPECTRADYNE, any of the CERPLEX Parties or any
subcontractor hereunder shall remain and be the sole and exclusive property of
SPECTRADYNE.
7.2.3 EXPIRATION OF LICENSE. The license granted to CERPLEX
hereunder shall automatically and immediately expire upon the termination or
expiration of this Agreement, and the CERPLEX Parties shall have no right in or
claim to any of the Spectradyne Intellectual Property Rights or the Spectradyne
Property.
7.2.4 OWNERSHIP OF SPECTRADYNE PRODUCTION ASSETS. CERPLEX agrees
that any product-specific tooling, production fixtures, automatic assembly
equipment fixtures and programs, test fixtures, test cabling and test programs
that now exist or that are built by or caused to be built by CERPLEX and paid
for by SPECTRADYNE, as evidenced by a SPECTRADYNE purchase order therefor, are,
shall be, or shall become (as the case may be) and shall remain
16
the property of SPECTRADYNE and shall be returned by CERPLEX to SPECTRADYNE upon
demand and in any case upon termination or cancellation of this Agreement.
7.3 LICENSE AGREEMENT TERMS. The grant of the license set forth in
Section 7.2 hereof is subject to the following terms and conditions:
7.3.1 ACCESS. The software programs shall be operated directly
only (i) by bona fide employees of CERPLEX and subcontractors approved pursuant
to Section 3.3; and (ii) on equipment that is under the control of CERPLEX,
unless other arrangements are necessary due to natural disaster or similar
emergency. Any and all copies of the source Code in the possession or control of
CERPLEX shall be kept in a secure, locked-up environment, which shall conform to
standard industry practices. The Source Code may not be removed from such
location without the prior written approval of SPECTRADYNE. Access to the Source
Code shall be limited to those employees of CERPLEX and of approved
subcontractors who need to have access to incorporate or merge the software into
the SPECTRADYNE Product. Each such employee shall sign and be bound by a
Confidentiality Agreement in the form of Exhibit A to this Agreement.
7.3.2 CONFIDENTIALITY. CERPLEX shall keep, and shall cause all
subcontractors and all affiliates of CERPLEX and all subsidiaries and affiliates
of the CERPLEX Parent to keep, the SPECTRADYNE Systems, SPECTRADYNE's
Proprietary Information, the SPECTRADYNE Products, and the New SPECTRADYNE
Products, confidential and shall not at any time allow the SPECTRADYNE Systems,
SPECTRADYNE's Proprietary Information, the SPECTRADYNE Products, the New
SPECTRADYNE Products, or any of their components or any Enhancements, or other
modifications to them, to be disclosed to third parties, transferred, pledged,
sold, assigned, leased or commercially exploited or marketed in any way, with or
without charge, by CERPLEX or its employees or agents, or any subcontractors, or
any affiliates of CERPLEX, or any subsidiaries and affiliates of the CERPLEX
Parent. Except to the extent, required for normal operation of the systems as
permitted by this Article, CERPLEX shall not permit the SPECTRADYNE Systems,
SPECTRADYNE's Proprietary Information, the SPECTRADYNE Products, or the New
SPECTRADYNE Products to be copied or reproduced, in whole or in part, by any
person or entity at any time.
7.3.3 NO COPIES. CERPLEX shall not, without the prior written
consent of SPECTRADYNE, copy, in whole or in part, the Source Code provided by
SPECTRADYNE under this Agreement. CERPLEX shall not recreate, or attempt to
recreate, or permit or help others to recreate, the Source Code by any means
whatsoever, including without limitation, derivation of the Source Code from any
copy or version of the SPECTRADYNE System. No more than one (1) copy of the
17
Source Code shall be in CERPLEX's possession at any time without the prior
written consent of SPECTRADYNE. Any copy of the Source Code, in whole or in
part, delivered to CERPLEX by SPECTRADYNE, or made by CERPLEX pursuant to this
paragraph, is and shall be the property of SPECTRADYNE.
7.4 NO IMPLIED LICENSE. SPECTRADYNE is only granting CERPLEX the limited
license contained in Section 7.2 and CERPLEX shall have no implied license in or
to any part of SPECTRADYNE's Intellectual Property Rights, except as expressly
contemplated under this Agreement.
7.5 WORK FOR HIRE. CERPLEX, ON BEHALF OF ITSELF AND ITS PARENT,
SUBSIDIARIES AND AFFILIATES ("CERPLEX GROUP"), HEREBY IRREVOCABLY ASSIGNS TO
SPECTRADYNE AND SPECTRADYNE ACCEPTS ALL INTELLECTUAL PROPERTY RIGHTS THE CERPLEX
GROUP MAY HAVE, IF ANY, IN AND TO ANY SPECTRADYNE PROPERTY, INCLUDING, WITHOUT
LIMITATION, SUCH INTELLECTUAL PROPERTY RIGHTS THAT THE CERPLEX GROUP MAY MAKE,
CONCEIVE, OR DESIGN, ALONE OR WITH OTHERS, IN CONNECTION WITH PERFORMING THE
SERVICES OR THE WORK. EACH OF THE CERPLEX GROUP ACKNOWLEDGES AND AGREES THAT
ALL INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, MODIFICATIONS,
UPDATES, IMPROVEMENTS, ENHANCEMENTS, AND ANY OTHER CHANGES TO SPECTRADYNE'S
INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, TO ANY COMPUTER
PROGRAM OBJECT AND SOURCE CODES WITH REGARD TO SPECTRADYNE PROPERTY, CONCEIVED
OR DESIGNED BY ANY OF THE CERPLEX GROUP IN CONNECTION WITH THE SERVICES OR THE
WORK ARE, AND ARE INTENDED TO BE, WORKS FOR HIRE AND ARE THE PROPERTY OF
SPECTRADYNE; BUT TO THE EXTENT ANY SUCH INTELLECTUAL PROPERTY RIGHTS MAY NOT, BY
OPERATION OF LAW, BE WORKS FOR HIRE, THE CERPLEX GROUP, AND EACH MEMBER THEREOF,
EACH HEREBY IRREVOCABLY ASSIGNS TO SPECTRADYNE AND SPECTRADYNE ACCEPTS SUCH
ASSIGNMENT OF THE OWNERSHIP OF THE INTELLECTUAL PROPERTY RIGHTS, WHETHER
WRITTEN, DIAGRAM OR SOME OTHER FORM, AND WHETHER PUBLISHED OR UNPUBLISHED. EACH
OF THE CERPLEX GROUP WILL GIVE SPECTRADYNE ALL SUCH FURTHER ASSISTANCE
REASONABLY NECESSARY TO PERFECT SUCH RIGHTS, INCLUDING, BUT NOT LIMITED TO,
SUPPLYING SUPPORTING , DOCUMENTATION AND EXECUTING ANY INSTRUMENTS REQUIRED TO
REGISTER SUCH INTELLECTUAL PROPERTY RIGHTS.
7.6 CONFIDENTIALITY. Except as otherwise provided in this Agreement, the
parties agree that during the Term of this Agreement and for a period of two (2)
years from the date of its termination or expiration, including the termination
18
or expiration of any extension period, Proprietary Information shall be
maintained in strict confidence; shall be used only for purposes of this
Agreement; and that no Proprietary Information shall be disclosed by the
recipient party, its Affiliates, agents or employees without the prior written
consent of the other party. Each party agrees to take all reasonable
precautions to prevent the disclosure of Proprietary Information.
7.7 LIMITED RESTRICTION. Notwithstanding any other provision of this
Article 7, nothing in this Article 7, or any other agreement or instrument
entered into by the CERPLEX Parties in connection with the transactions
contemplated hereby, shall limit, prohibit, or restrict the CERPLEX Parties'
right to use during the Term hereof or after any termination of this Agreement
any manufacturing, testing or repair process, technique, method or system, or
the know-how associated therewith that CERPLEX possessed prior to the date
hereof and used in connection with its performance of the Services or the Work
rendered to SPECTRADYNE hereunder ("CERPLEX Know-how") or any Enhancements of
the CERPLEX Know-how that are or may have been derived therefrom.
ARTICLE 8
PRICING
8.1 ANNUAL TARGET. At Closing, and thereafter every 30 days during the
Term, SPECTRADYNE will deliver to CERPLEX a minimum aggregate dollar purchase
target, with corresponding prices for the goods and services to be purchased,
for the immediately following 12-month period (the "Rolling Annual Target").
SPECTRADYNE shall be permitted to amend the minimum aggregate dollar purchase
target delivered at Closing (for the 12-month period commencing with the
Closing) upward only on or before February 1, 1994. So long as SPECTRADYNE
purchases from CERPLEX goods and services during each such Rolling Annual Target
period with an aggregate cost of at least equal to the Rolling Annual
Target,,the following pricing arrangements shall apply throughout the Term of
this Agreement:
8.1.1 PRICE SCHEDULE. Except as specified below and in Section 6.2
above, prices for any SPECTRADYNE Products manufactured by or for SPECTRADYNE
prior to Closing shall not exceed the prices as specified on Schedule 8.1
attached hereto. If SPECTRADYNE delivers to CERPLEX on or before February 1,
1994 an upwardly revised minimum aggregate dollar purchase target for the 12-
month period beginning with the Closing, CERPLEX shall make dollar volume price
adjustments using the same methodology used to generate Schedule 8.1, which
price adjustments shall, however, be prospective only and applicable only to
purchase orders delivered after the date such upwardly revised minimum aggregate
dollar purchase target is delivered to CERPLEX.
19
8.1.2 NO PRICE INCREASE. If CERPLEX accepts a Rolling Annual Target,
the prices of goods and services may not be increased during the 12-month period
applicable to that Rolling Annual Target, subject to the provisions of Paragraph
8.2 below.
8.1.3 PURCHASE ORDERS. At the Closing, SPECTRADYNE shall place with
CERPLEX a 90-day firm purchase order. Every 30 days thereafter during the Term
SPECTRADYNE shall amend the existing firm purchase order to extend it for an
additional 30-day period with orders for such additional 30-day period. All
orders shall be placed on SPECTRADYNE's purchase order form attached hereto as
Schedule 8.1.3, which may be changed from time to time during the Term as the
parties may mutually agree, at prices established in the then applicable Rolling
Annual Target for each good or service included on such purchase order. Subject
to the provisions of Paragraph 8.6 below regarding long lead-time items, CERPLEX
shall fulfill each purchase order on a timely basis as provided in the purchase
order. If SPECTRADYNE cancels or modifies any purchase order outside of such
purchase order's terms and other than because of a CERPLEX default, the parties
will negotiate in good faith to reschedule the purchases provided for in such
purchase order. If the parties are not able to reach agreement following such
good faith negotiations, CERPLEX's damages shall be limited to the lesser of
CERPLEX's direct and unavoidable damages (after commercially reasonable efforts
to mitigate) from such cancellation or modification (including any applicable
third-party-supplier penalties for such cancellation or modification) or the
full purchase price under such purchase order. Under no circumstances will
SPECTRADYNE be liable for any cancellation penalties imposed by CERPLEX or for
any damages to CERPLEX for periods not covered by a firm purchase order.
8.2 PRICE INCREASES. CERPLEX may request a price increase with respect
to any goods and services it provides under this Agreement in connection with
each revised Rolling Annual Target, such price increase to be effective,
however, beginning with the last 30-day period in the 12-month period applicable
to such revised Rolling Annual Target. In such case, SPECTRADYNE may solicit and
receive bids from third parties with respect to the goods or services, or both,
as to which CERPLEX seeks a price increase. SPECTRADYNE shall negotiate in good
faith with CERPLEX as to the matter but shall remain free to select the third-
party bidder following such negotiations. The parties acknowledge that if such
good faith negotiations reach an impasse, this may result in SPECTRADYNE ceasing
to buy, and CERPLEX ceasing to supply, after the period applicable to the
immediately preceding Rolling Annual Target the goods and services as to which
CERPLEX seeks a price increase.
8.2.1 PRICE DISCUSSIONS. Notwithstanding anything in this Article
8, the parties agree that if pricing and cost issues arise during the course
20
of performance of this Agreement, they will negotiate in good faith to resolve
any such issue to the mutual satisfaction of both parties.
8.3 COST SAVINGS. CERPLEX may propose design, production, process or
other changes in the goods and services offered by SPECTRADYNE with a view to
achieving cost savings. No such changes shall be implemented without
SPECTRADYNE's approval. If any such changes are accepted, the prices in the
Annual Target shall be reduced so as to reflect 50% of the cost savings realized
from such change.
8.4 "PROTO-BUILD" SERVICES. Engineering and "prototype-building"
services may be requested by SPECTRADYNE, and if requested will be provided by
CERPLEX, at a price to be mutually determined by the parties. SPECTRADYNE shall
have the right to purchase standard CERPLEX raw materials at CERPLEX's cost.
8.5 SHIPPING AND RECEIVING. Shipping and receiving services (including
tape shipments) shall be provided upon request for a fee of $3.00 per
transaction (each shipping/receiving document to constitute a separate
transaction).
8.6 LONG-LEAD ITEMS. CERPLEX shall advise SPECTRADYNE from time to
time of any components or materials requiring such lead time for delivery as
would prevent CERPLEX from meeting any delivery obligations under anticipated
SPECTRADYNE purchase orders based on Rolling Annual Targets and of any penalty
or cancellation charge that the third-party supplier of such components or
materials imposes for reduction or cancellation of an order. If SPECTRADYNE
specifically authorizes CERPLEX in writing to place advance orders for
particular amounts of such long lead-time items in anticipation of SPECTRADYNE
orders, and if any such orders are placed and later canceled or reduced due to
actions by SPECTRADYNE, then, to the extent that CERPLEX cannot with
commercially reasonable efforts either use such items for other purposes or
reduce or cancel its order with the third-party supplier without incurring a
penalty or cancellation charge, SPECTRADYNE shall be responsible for any and all
costs and charges, including without limitation, cancellation penalties imposed
on CERPLEX by the third-party supplier to the extent caused by SPECTRADYNE's
actions. If SPECTRADYNE fails to give such written assurances in a timely
fashion, then it shall be required either to accept any delay in delivery of
products ordered by it from CERPLEX of which it was previously advised or pay
any premium necessary to obtain the item in a timely fashion.
21
ARTICLE 9
INVOICES AND PAYMENT
9.1 INVOICES. For all goods and services set forth on the Price
Schedule, CERPLEX shall invoice SPECTRADYNE on a weekly basis. For any new or
special services as described, CERPLEX shall invoice SPECTRADYNE on a monthly
basis. CERPLEX shall submit such invoices on or about the last day of each
relevant period and only for those billable items which have actually been
delivered to SPECTRADYNE on or prior to the invoice date. SPECTRADYNE shall have
audit rights to all CERPLEX figures presented on such invoices.
9.2 PAYMENT. SPECTRADYNE shall pay CERPLEX within fortyfive (45) days
after submission of each invoice. Except as provided in Article 13 in order to
enable CERPLEX to obtain financing with respect to the accounts receivable owing
from time to time from SPECTRADYNE to CERPLEX, SPECTRADYNE agrees not to off-set
any sums of any kind owing from CERPLEX to SPECTRADYNE against any invoice owing
to CERPLEX, and SPECTRADYNE agrees not to assert any counterclaim, or otherwise
refuse to pay, any of the invoices owing to CERPLEX based upon any present or
future indebtedness, liabilities, or other obligations or sums owing from
CERPLEX to SPECTRADYNE (including under the Lease).
9.3 TAXES. Payment of all federal, state and/or local taxes based on
Services provided under this Agreement shall be the responsibility of CERPLEX
including, without limitation, franchise taxes, state and local personal
property taxes, employment taxes for its employees and taxes based on the net
income of CERPLEX. SPECTRADYNE shall either (1) pay to CERPLEX all sales and
use taxes levied with respect to the Services or (2) issue a resale certificate
to CERPLEX for such Services. Each party shall reasonably cooperate with the
other in minimizing any applicable tax. CERPLEX shall promptly reimburse
SPECTRADYNE for the portion of any prepaid taxes relating to any period after
the Commencement Date.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
10.1 BY SPECTRADYNE. SPECTRADYNE represents and warrants to CERPLEX as
follows:
10.1.1 DUE INCORPORATION. SPECTRADYNE ( i) is a corporation duly
incorporated, validly existing and in good standing under the laws of Texas, and
(ii) has full corporate power to own, lease, and operate its properties and
assets, to conduct its business as that business is currently being conducted,
and
22
to consummate the transactions contemplated by this Agreement to be consummated
by SPECTRADYNE.
10.1.2 DUE AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by it and constitutes a valid and binding agreement of
it, enforceable against it in accordance with this Agreement's terms, subject to
the effect of bankruptcy, insolvency, moratorium and other laws now or hereafter
in effect relating to and affecting the rights of creditors generally and to
equitable principles of general application.
10.1.3 NO CONFLICT. Neither the execution nor delivery by it of this
Agreement, nor the consummation by it of any of the transactions contemplated by
this Agreement, will result in the breach of any term or provisions of, or
constitute a default under, any charter provision or bylaw, order, law, rule or
regulation which is applicable to it or any material contracts with third-
parties.
10.2 BY CERPLEX. CERPLEX represents and warrants to SPECTRADYNE as follows:
10.2.1 DUE INCORPORATION. CERPLEX (i) is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Texas, and (ii) has full corporate power to own, lease, and operate its
properties and assets, to conduct its business as that business is currently
being conducted, and to consummate the transactions contemplated by this
Agreement to be consummated by CERPLEX.
10.2.2 DUE AUTHORIZATION. This Agreement has been duly authorized,
executed and delivered by it and constitutes a valid and binding agreement of
it, enforceable against it in accordance with this Agreement's terms, subject to
the effect of bankruptcy, insolvency, moratorium and other laws now or hereafter
in effect relating to and affecting the rights of creditors generally and to
equitable principles of general application.
10.2.3 NO CONFLICT. Neither the execution nor delivery by it of this
Agreement, nor the consummation by it of any of the transactions contemplated by
this Agreement, will result in the breach of any term or provisions of, or
constitute a default under, any charter provision or bylaw, order, law, rule or
regulation which is applicable to it.
10.3 NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The statements,
representations, warranties, indemnities, covenants and agreements made by each
of the parties hereto in the last sentence of Section 3.1, Sections 11.2.2,
11.2.3, 12.2 and Article 7 and Article 13 shall survive the Closing
indefinitely. All other statements, representations, warranties, indemnities,
23
covenants and agreements made by each of the parties hereto shall survive for a
period of one (1) year.
ARTICLE 11
TERMINATION
11.1 TERMINATION.
11.1.1 TERMINATION FOR MATERIAL EVENT.
(a) CURE PERIOD. Except as otherwise provided in this Section
11.1, in the event of an occurrence of any material breach of this Agreement by
either party, which breach is not cured within thirty (30) days after receipt of
written notice of such breach (which notice shall specify in detail the matters
giving rise to the breach), then the non-breaching party may terminate this
Agreement forty-five (45) days after notice of termination is given.
(b) DELIVERY PERFORMANCE. In addition to SPECTRADYNE's rights
under Section 3.7, should more than 5% of products purchased by SPECTRADYNE from
CERPLEX in any 90-day period be delivered late, CERPLEX shall discuss the
situation with SPECTRADYNE, undertake a performance review, and take corrective
action to assure that such inadequate performance will not be repeated. If
CERPLEX fails to so act in a timely manner, or if the same problem reoccurs at
such levels, then, in addition, to any action for damages for such default,
SPECTRADYNE shall be free to terminate this Agreement on thirty (30) days notice
without penalty for early termination or cancellation of any orders.
(c) QUALITY PERFORMANCE. SPECTRADYNE shall define and implement a
product acceptance methodology for measuring product functionality and
performance based upon standard industry quality auditing practices using lot
sampling techniques, and shall make such methodology known to CERPLEX. In
addition to SPECTRADYNE's rights under Section 3.7, should more than 5% of
production deliveries or FRU deliveries (deliveries to be measured in number of
product lots delivered and not necessarily in absolute numbers of units
delivered) within any 90-day period be rejected by SPECTRADYNE for failure to
conform to SPECTRADYNE's product functionality or performance standards, CERPLEX
shall discuss the situation with SPECTRADYNE, undertake a performance review,
and take corrective action to assure that such inadequate performance will not
be repeated. If CERPLEX fails to so act in a timely manner, or if the same
problem reoccurs at such levels, then, in addition, to any action for damages
for such default, SPECTRADYNE shall be free to terminate this Agreement on
thirty (30) days notice without penalty for early termination or cancellation of
any orders.
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11.1.2 TERMINATION FOR NONPAYMENT BY SPECTRADYNE.
(a) In the event that SPECTRADYNE breaches its obligation to pay
any amount due to CERPLEX hereunder ("SPECTRADYNE Payment Breach") and does not
cure such breach within fifteen (15) days after being given written notice of
such breach by CERPLEX, then CERPLEX may terminate this Agreement fifteen (15)
days after notice of such termination is given. After notice of termination has
been given to SPECTRADYNE hereunder, then for any Services provided to
SPECTRADYNE by CERPLEX during the ensuing fifteen (15) day period, CERPLEX may
require that SPECTRADYNE pay cash on delivery.
(b) Notwithstanding anything to the contrary contained herein,
CERPLEX may not terminate this Agreement pursuant to this Section for
SPECTRADYNE's failure to pay to CERPLEX any amount that is due from SPECTRADYNE
if as to any invoice, SPECTRADYNE has paid any disputed amount into escrow and
submitted such dispute to arbitration as provided in Article 13 hereof, provided
that SPECTRADYNE makes payment for that portion of such invoice which it does
not dispute.
11.1.3 TERMINATION FOR INSOLVENCY. In the event that either party
hereto is the subject of any proceedings relating to its liquidation, insolvency
or for the appointment of a receiver or similar officer for it, makes an
assignment for the benefit of all or substantially all of its creditors or
enters into an agreement for the composition, extension or readjustment of all
or substantially all of its obligations, and the same has not been discharged or
terminated without any prejudice to the other party's rights or interests under
this Agreement within ninety (90) days of the date of such action then the other
party hereto may, by giving written notice thereof to such party, terminate this
Agreement as of a date specified in such notice of termination.
11.2 TERMINATION SUPPORT.
11.2.1 COOPERATION. CERPLEX agrees that, forty-five (45) days prior to
the termination or expiration of this Agreement for any reason, CERPLEX shall
use reasonable efforts to effect an orderly and efficient transition to a
successor provider of services and will provide to SPECTRADYNE or its designed
any and all termination assistance reasonably requested by SPECTRADYNE to allow
the Services to continue without interruption or adverse effect.
11.2.2 RETURN OF PROPERTY. Upon termination or expiration of this
Agreement, CERPLEX shall return to SPECTRADYNE all SPECTRADYNE assets and
property that may be in the possession of CERPLEX, including without limitation,
any (i) production fixtures and automatic assembly equipment fixtures
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and programs, (ii) equipment, (iii) materials, software, and equipment used in
testing, including test fixtures, test cabling and test programs, (iv) product-
specific tooling and (v) designs, drawings, blueprints, specifications, and data
(in whatever form).
11.2.3 TERMINATION AND EXPIRATION. Notwithstanding any other
provision contained herein to the contrary, in the event that any CERPLEX Party
breaches any of the provisions contained in Article 7 of this Agreement, which
breach is not cured within ten (10) business days after receipt of written
notice of such breach (which notice shall specify in detail the matters giving
rise to the breach), then, in addition to any and all other rights and remedies
SPECTRADYNE may have under this Agreement, or any other agreement between
SPECTRADYNE and CERPLEX, or under applicable law, SPECTRADYNE shall have the
right to terminate this Agreement and the license granted to CERPLEX hereunder
thirty (30) days after notice of termination is given. Upon termination and/or
expiration of this Agreement, CERPLEX shall deliver to SPECTRADYNE any and all
copies of any Source Code and all Enhancements thereto that the CERPLEX Parties
have in their possession or control and/or that shall have been made from, or
using any copy of the Source Code in CERPLEX Parties' possession or control at
any time, and CERPLEX shall sign a statement affirming that it has complied with
this provision.
11.2.4 RIGHT TO INJUNCTION. In the event that any CERPLEX Party
breaches any provision of Article 7 of this Agreement, then, in addition to any
and all rights and remedies SPECTRADYNE may have under this Agreement, any other
agreement with CERPLEX, or applicable law, SPECTRADYNE shall be entitled to
obtain preliminary and permanent injunctions, from a court of competent
jurisdiction, enjoining any and all such breaches, the parties acknowledging and
agreeing that SPECTRADYNE would be irreparably harmed by any and all such
breaches.
ARTICLE 12
INDEMNITIES
12.1 INDEMNIFICATION.
12.1.1 INDEMNIFICATION; RIGHTS AND REMEDIES.
(a) SPECTRADYNE shall indemnify CERPLEX for all losses imposed
upon or incurred by CERPLEX arising or resulting from events, conditions,
actions or omissions by SPECTRADYNE occurring prior to the Commencement Date
related to the Employee Plans, or the employment or termination of the
Employees, but only to the extent that such losses are wholly or partially
attributable to events, conditions, actions or omissions occurring prior or
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on to the Commencement Date. CERPLEX shall indemnify SPECTRADYNE for all losses
imposed upon SPECTRADYNE arising from events, conditions, actions or omissions
by CERPLEX occurring after the Commencement Date related to any employee plans,
or hiring, employment or termination of the Employees, but only to the extent
that such losses are wholly or partially attributable to events, conditions,
actions or omissions occurring after the Commencement Date.
(b) Notwithstanding any other provisions of this Agreement,
SPECTRADYNE agrees to indemnify and hold CERPLEX harmless from and against any
liabilities, costs or obligations, including attorneys' fees and disbursements,
resulting from (i) any and all claims for life insurance, disability and medical
benefits based on occurrences before the Start Date (including claims for
continuing treatment with respect to any accident or illness for which coverage
was so provided), whether such claims are asserted before, on or after the Start
Date, (ii) any and all other welfare and fringe benefits claims based on
occurrences before the Start Date, whether such claims are asserted before, on
or after the Start Date, (iii) any and all life insurance, disability, severance
(including severance claims based upon the transactions contemplated hereunder),
medical or other welfare and fringe benefits claims of any individual (or his
covered dependents) who retired from SPECTRADYNE on or before the Start Date or
who died before the Start Date and who had been employed at any time, regardless
of whether such claim is asserted before, on or after the Start Date and (iv)
any and all claims (including third party claims) under or with respect to any
pension or retirement plan or any plan of deferred compensation other than
SPECTRADYNE's Pension Plan.
(c) Notwithstanding any other provisions of this Agreement,
CERPLEX agrees to indemnify and hold SPECTRADYNE harmless from and against any
costs, liabilities or obligations, including attorney's fees and disbursements,
resulting from (a) any and all life insurance, disability or medical benefits
claims based on coverage provided to Employees under any plan maintained or
sponsored by CERPLEX after the Start Date, (b) any and all other welfare and
fringe benefits claims based on coverage provided to Employees under any plan
maintained or sponsored by CERPLEX after the Start Date and (c) any and all
claims under or with respect to any pension or retirement plan or any plan of
deferred compensation which CERPLEX sponsors, contributes to or otherwise
participates in on or after the Start Date.
12.1.2 INDEMNIFICATION RESPECTING REPRESENTATIONS. CERPLEX and
SPECTRADYNE shall indemnify, defend and hold harmless each other against all
claims, liabilities, losses, damage and expense including, but not limited to,
reasonable attorneys' fees, costs of investigations, costs of investigative,
judicial and administrative proceedings or appeals therefrom and costs of
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attachment or similar bonds) resulting from the fact that any of the
representations made by the other party shall be false in any material respect.
12.1.3 LIMITATION ON CONSEQUENTIAL DAMAGES. EXCEPT AS SET FORTH
IN SECTIONS 12.1.1 AND 12.1.2 ABOVE, NEITHER PARTY SHALL BE LIABLE UNDER THIS
AGREEMENT TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
TO THE OTHER PARTY OR TO ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION,
PENALTIES FOR FAILED OR DELAYED PERFORMANCE, DAMAGES FOR LOST PROFITS,
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, INDEMNITY, WARRANTY,
STRICT LIABILITY OR TORT AND REGARDLESS OF WHETHER SUCH PARTY HAS REASON TO KNOW
OR IN FACT KNOWS OF THE POSSIBILITY THEREOF.
12.2 INTELLECTUAL PROPERTY INDEMNITY. Each of the parties will indemnify,
defend and hold harmless the other from any and all claims, actions,
liabilities, damages, costs and expenses, including reasonable attorneys, fees
and costs of investigation in judicial and in administrative proceedings or
appeals therefrom and costs of attachment or similar bonds, arising out of any
third party claims of infringement of any patents, copyrights, licenses, trade
secrets, trademarks, service marks or any other proprietary right of the other
party, provided that the indemnifying party is notified as soon as practicable
of such claim. The indemnified party shall have the right to control the defense
of all such claims, lawsuits or other proceedings with counsel reasonably
satisfactory to the indemnified party and the indemnified party shall have the
right to participate in such proceedings. In no event shall the indemnified
party settle any such claim, lawsuit or proceeding without the indemnifying
party's prior approval. The above intellectual property indemnity shall survive
the termination or expiration of this Agreement, as provided above in Section
10.3.
ARTICLE 13
DISPUTES; ARBITRATION
All disputes shall be negotiated between the Designated Representatives (or
deputies as necessary) until the earlier of mutually acknowledged impasse or
thirty (30) days. Thereafter any unresolved controversy, claim or dispute
arising out of or in connection with the negotiation, performance or non-
performance of this Agreement, including, without limitation, the validity,
scope, and enforceability of this Agreement shall be solely and finally settled
by arbitration before a three-person panel in Dallas, Texas in accordance with
the Commercial Arbitration Rules then in effect of the American Arbitration
Association, or any successor organization. Either party hereto may demand
arbitration by written notice to the other party and to the American Arbitration
Association ("Demand for Arbitration"). Any Demand for Arbitration pursuant to
this Article 13 shall be
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made within one (1) year from the date that the dispute upon which the demand is
based arose. The arbitrators shall be named by the I American Arbitration
Association within ten (10) days of the service of the Demand for Arbitration.
Each arbitrator shall be admitted to practice law in Texas and shall comply with
the American Bar Association and American Arbitration Association's Code of
Ethics for neutral arbitrators. Judgment on any award by a majority of the
arbitrators shall be binding and may be entered in any court having jurisdiction
thereof. The parties intend that this agreement to arbitrate be valid, binding,
enforceable, and irrevocable. The terms of this Article 13 shall survive the
termination or expiration of this Agreement. In their award, the arbitrators
shall allocate against the losing party all costs of arbitration, including the
fees of the arbitrators, and reasonable attorneys, fees, costs, and expert
witness expenses of the parties. If commercially practicable, CERPLEX will
continue to provide the Services during the arbitration proceedings and, except
for disputed amounts that are the subject of an arbitration (which will be paid
into escrow as set forth below), SPECTRADYNE will continue to make payments to
CERPLEX under the terms and conditions of this Agreement during the period from
the date a notice of arbitration is served on any party until the date of any
final award. Any disputed amounts from either party will be paid into an escrow
account, structured by agreement of the parties, or as ordered by the
arbitrators if agreement cannot be reached, for distribution in accordance with
the arbitrators, award.
ARTICLE 14
MISCELLANEOUS
14.1 ASSIGNMENT. Neither party may assign this Agreement (other than to an
approved or permitted assignee as provided in, and subject to Sections 3.3 and
3.11) without the prior written consent of the other, which consent shall not be
unreasonably withheld.
14.2 BINDING NATURE OF THIS AGREEMENT. This Agreement shall bind the
parties and their successors and/or permitted assigns.
14.3 NOTICES. All notices or other communications required or permitted to
be given pursuant to this Agreement shall be in writing and shall be deemed
given if delivered personally or five days after mailing by certified or
registered mail, postage prepaid, return receipt requested, or upon transmission
pursuant to facsimile, or upon delivery by means of a nationally-recognized
overnight air courier service, to the parties, their successors in interest or
their assignees at the following addresses, or at such other addresses as the
parties may designate by written notice in the manner aforesaid:
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If to SPECTRADYNE: 1501 North Plano Road
Richardson, Texas 75081
Attn: Bart Guinn
With a Copy (not constituting notice) to:
Williams & Connolly
725 Twelfth Street, N.W.
Washington, D.C. 20005-3901
Attn: Jerry L. Shulman, Esq.
If to CERPLEX: The Cerplex Group, Inc.
3332 E. La Palma Avenue
Anaheim, California 92806
Attn: Chief Executive Officer
With a Copy (not constituting notice) to:
Brobeck, Phleger & Harrison
4675 MacArthur Court, Suite 1000
Newport Beach, California 92660-1836
Attn: Frederic A. Randall, Jr., Esq.
14.4 COUNTERPARTS. This Agreement may be executed in one or more
counterparts all of which taken together will constitute one and the same
instrument.
14.5 HEADINGS. The articles and sections headings and the table of contents
are for reference and convenience only and shall not be considered in the
interpretation of this Agreement.
14.6 RELATIONSHIP OF PARTIES. CERPLEX, in furnishing services to
SPECTRADYNE, is acting only as an independent contractor.
14.7 FURTHER ASSURANCES. Each of the parties agrees to do such further acts
and to execute and deliver such additional documents as are reasonably necessary
or appropriate to carry out the purpose and intent of this Agreement.
14.8 APPROVALS AND SIMILAR ACTIONS. Where agreement, approval, acceptance,
consent or similar action by either party is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld unless
specifically permitted by this Agreement.
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14.9 FORCE MAJEURE. The parties hereto shall not be responsible for any
failure or delay in the performance of any obligations hereunder caused by acts
of God, flood, fire, war or public enemy. Performance times shall be considered
extended for a period of time equivalent to the time lost because of any such
delay, provided that, in the event CERPLEX is delayed in its performance by
reason of such cause, no such extension shall be made unless notice thereof is
presented by CERPLEX to SPECTRADYNE in writing within ten (10) business days
after the start of the occurrence of such delay; no payment shall be made by
SPECTRADYNE for any fees or expenses incurred by CERPLEX by reason of such
delay, and CERPLEX shall use best efforts to perform its obligations during such
period of delay.
14.10 SEVERABILITY. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired.
14.11 NO WAIVER. No delay or omission by either party to exercise any
option, right or power it has under this Agreement shall impair or be construed
as a waiver of such option, right or power. A waiver by either party of any
covenant or breach shall not be construed to be a waiver of any succeeding
breach or of any other covenant. All waivers must be in writing and signed by
the party waiving its rights.
14.12 ATTORNEY'S FEES. If any legal action or other proceeding is brought
for the enforcement of this Agreement, or because of an alleged dispute, breach,
default or misrepresentation in connection with any of the provisions of this
Agreement, or the collection of any judgment thereon, the prevailing party shall
be entitled to recover reasonable attorney's fees and other costs incurred in
that action or proceeding, in addition to any other relief to which it may be
entitled.
14.13 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas without regard to its conflicts
of laws principles.
14.14 SURVIVAL. All obligations contemplated to be performed, whether as a
whole or in part, after termination of this Agreement, shall in fact survive
after termination of this Agreement regardless of the basis for such
termination.
14.15 EXHIBITS AND SCHEDULES. The terms and conditions of any and all
Exhibits and Schedules to this Agreement, as amended from time to time by mutual
agreement and signature of the parties, are incorporated into the Agreement by
this reference and shall constitute a part of this Agreement as if fully set
forth herein. The parties hereto acknowledge that certain Schedules to this
Agreement will not be finalized on the Commencement Date. The parties
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agree to finalize all Schedules to this Agreement within sixty (60) days of the
Commencement Date.
14.16 AMENDMENTS. No amendment to, or change, waiver or discharge of any
provision of this Agreement shall be valid unless in writing and signed by any
authorized representative of the party against which such amendment, change,
waiver or discharge is sought to be enforced.
14.17 ENTIRE AGREEMENT. This Agreement, together with all Exhibits and
Schedules, constitutes the entire agreement of the parties and supersedes all
previous agreements, promises, representations, understandings and negotiations
between the parties, whether written or oral, with respect to the subject matter
hereof. In the event of a conflict between this Agreement and any Exhibits or
Schedules attached hereto, this Agreement shall govern.
14.18 COMPLIANCE WITH LAW. CERPLEX in performing the -Services covenants
that it shall comply with all applicable federal or state rules, regulations or
laws relating to the Services.
14.19 SECURITY, HEALTH AND SAFETY. Each party covenants that it will cause
its employees, while such employees are on premises owned or leased by any other
party, to comply with such other party's reasonable requirements regarding
security, health and safety and other such matters as provided in writing by
such party.
14.20 RIGHTS AND REMEDIES. Except as otherwise expressly provided herein,
the rights and remedies provided in this Agreement are cumulative and not
exclusive of any rights or remedies any party could have at law or in equity or
otherwise.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have caused this Agreement to be executed by their respective corporate officers
thereunto duly authorized, for and on behalf of themselves and their successors
and assigns all as of the day and year first above written.
SPECTRADYNE CORPORATION, a Texas corporation
By:
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Al Jerome
President and Chief Executive Officer
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CERTECH TECHNOLOGY, INC., a Texas corporation
By:
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Name:
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Title:
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