EXHIBIT 10.31
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
AMENDED AND RESTATED
SUPPLY AGREEMENT NO. 1F088
THIS AMENDED AND RESTATED SUPPLY AGREEMENT is entered into as of March
26, 2004 (the "Effective Date") by and between Endwave Corporation ("Endwave")
and Northrop Grumman Space and Mission Systems Corp., NGST acting through its
Northrop Grumman Space Technology Sector ("NGST").
WHEREAS, Endwave and NGST entered into a Supply Agreement No. 1C450
with an effective date of March 31, 2000, as amended by Amendment No. 02 dated
June 05, 2003, which is being further amended and superseded by this Amended and
Restated Supply Agreement No. 1F088 as of the Effective Date;
WHEREAS, Endwave desires to purchase, and NGST desires to provide, the
Products as specified in Exhibit 1A to this Agreement and the parties desire to
define the terms and conditions under which the same will be furnished;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND PRIORITY
1.1 DEFINITIONS: The following words and phrases shall have the
meanings set forth below:
AGREEMENT: This Supply Agreement between NGST and Endwave including
the following Exhibits and Attachments, attached hereto
and made a part hereof:
Exhibit 1A: List of Products & Services
Exhibit 1B: List of Deliverables, Price, Quantity
Commitments, Delivery Schedule
and Endwave's Site
Attachment A: NGST Document [*]
Attachment B: Wafer Processing Price Matrix/Wafer Volume
Attachment C: Wafer Test Price Matrix
Attachment D: Developmental Lot Price Matrix
Attachment E: [*] and
[*] and [*]
Attachment F: Logistics Appendix
1.
Attachment G: Time and Material Labor Rates
Annex 17.4 Settlement of Disputes
CONTRACT PRICE: Defined in Section 4.1.
DELIVERY DATE(S): Defined in Section 6.1.
PRODUCTS: The products described in Exhibit 1A to be supplied
by NGST.
SITE: Endwave's facility or other location identified in
Exhibit 1B as the destination to which
transportation is to be arranged for deliverable
items.
NGST PLANT: Each of the factories or establishments of NGST and
its suppliers located in the United States.
1.2 PRIORITY: In case of any inconsistencies between this
Agreement and any of the Exhibits, the text of this Agreement shall prevail.
ARTICLE 2
SUBJECT MATTER OF SUPPLY; REQUIREMENTS; USE OF PRODUCTS
2.1 SUPPLY: NGST hereby agrees to sell to Endwave and Endwave
hereby agrees to buy from NGST, on and subject to the terms and conditions
contained in this Agreement, the Products listed in Exhibit 1A.
2.2 REQUIREMENTS: NGST agrees to sell Endwave [*] of [*] set forth
in Exhibit 1B; provided however, to the extent that Endwave wishes to purchase
[*] the [*] of the Products as provided in such Exhibit, NGST[*].
2.3 USE OF PRODUCTS: Endwave can use, sell and/or market the
Products [*] are [*]. For the [*] shall mean[*], and [*] the[*]. Endwave [*] or
[*] in a [*] or [*] or [*] of the [*] in [*] or [*] the [*]
ARTICLE 3
EFFECTIVE DATE AND TERM
This Agreement shall be effective and binding on the parties as of the
Effective Date and shall remain in force and effect until December 31, 2005,
unless the parties hereto choose to extend the term of this Agreement (the
period between the Effective Date and the termination of this Agreement shall be
hereinafter referred to as the "Term").
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
2.
ARTICLE 4
CONTRACT PRICE, TAXES
TRANSPORTATION, EXPENSES AND CHARGES, ORDERS
4.1 PRICE: Endwave shall pay NGST for the performance of NGST's
obligations hereunder, the prices for Products stated in Exhibit 1B in
accordance with the provisions of Article 5. The aforementioned price is
hereinafter referred to as the "Contract Price."
4.2 TAXES: All taxes (excluding income, but including stamp,
withholding, value added and turnover taxes), duties, fees, charges, or
assessments of any nature levied by any governmental authority in connection
with this transaction, whether levied against Endwave or NGST, or employees of
NGST as a result of Products provided by NGST under this Agreement, [*] for [*]
and [*] by [*] to[*]. If NGST is required by law or otherwise to pay any such
levy and/or fines, penalties, or assessments in the first instance, or as a
result of Endwave's failure to comply with any applicable laws or regulations
governing the payment of such levies by Endwave, as NGST's exclusive remedy for
claims under this Section 4.2, the amount of any payments so made by NGST shall
be reimbursed by Endwave to NGST upon submission of NGST's invoices and written
documentation justifying NGST's invoices.
4.3 TRANSPORTATION EXPENSES: [*] for [*] of [*], and [*] the [*]
and [*] for [*] in [*] the [*] of [*] from the [*] to the[*].
4.4 ORDERS: For its convenience, Endwave may obtain Products
pursuant to a Common Purchase Order method or a Supplier Managed Inventory with
Consignment method as specified in Attachment F herein. [*] of [*], Endwave [*]
an [*] in [*] to [*]. Unless otherwise specified in Attachment F herein, Endwave
shall use forms to order Products or to specify subsequent changes to Products
which reference this Agreement and specify the desired delivery date or dates
for Products ("Orders"). Any such order form shall not contain any preprinted or
written terms and conditions, and, to the extent that it does, Endwave and NGST
hereby agree that such terms and conditions of sale shall not be binding on the
parties and that only the terms and conditions contained in this Agreement shall
govern any sale between the parties regarding the Products.
4.5 ACCEPTANCE OF ORDERS: Unless otherwise specified in Attachment
F herein, NGST shall use reasonable commercial efforts to accept and supply all
Orders for Products which Endwave submits hereunder, and unless otherwise
agreed, NGST shall deliver Products so ordered on or before the delivery dates
or during the performance periods specified in each Order. All preprinted terms
and conditions contained in any Order are superseded by the terms and conditions
of this Agreement. [*] have [*] to [*] and [*] be [*] to[*], unless [*] (i) for
[*] in [*] hereto or [*]; (ii) for [*] of [*] in [*] of the [*] in [*] hereto or
[*]; or (iii) that [*] a [*] which is [*] from the [*] of [*]; provided,
however, that [*] up [*] as [*], which will be [*] of the [*] and which [*], and
which [*]. Any [*] in [*] to[*]. Such [*] a [*] as [*] in [*].
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
3.
4.6 ORDER PROCEDURE: NGST shall give Endwave written notice of its
acceptance or rejection of any Order within five (5) working days after receipt
of such Order. If NGST rejects any such Order, it shall specify in such notice
the reasons for rejection.
4.7 SALES FORECASTS: Endwave shall provide NGST real time access
to the forecast of its anticipated purchasing needs as specified in Attachment F
herein. The parties agree that such forecasts are only best estimates and shall
not be regarded as binding upon the Endwave under any circumstances.
ARTICLE 5
PAYMENT
For shipments made under the Supplier Managed Inventory with
Consignment method, as specified in Attachment F herein, payments shall be made
as follows:
a) [*] from the [*] will [*], the [*] as [*] on [*] of the [*]
and [*] on the [*] of the [*] and the [*] as [*] on the [*] of
the [*] and [*] on the [*] of the [*].
b) The [*] for [*] the [*] of [*] will [*] on the [*] of the [*]
and will [*] on the [*] of the [*] and the [*] for the [*] of
[*] will [*] on the [*] of the [*] and [*] on the [*] of the
[*]. [*] the [*], Endwave [*] a [*] for [*] the [*].
c) The [*] for [*] and [*] the [*] the[*]. During the Payment
Period, Endwave shall make payments to NGST by mail or
electronic funds transfer (EFT) of immediately available funds
as follows:
By Mail: By EFT:
Northrop Grumman Space & Mission JP Morgan Chase Bank, New York
Systems Corp. - ST ABA Number: 021000021
P.O. Box 601040 Account Number: 323397387
Los Angeles, California, 90060-1040, Account Name: Northrop Grumman
USA S&MS Corp. - Space Technology
For shipments made via Common Purchase Order method or other charges,
if any, provided for in this Agreement, terms shall be [*] after receipt of
NGST's invoice. Payment shall be made via mail or electronic funds transfer
(EFT) as specified above.
For [*] the [*], Endwave [*] a [*] the [*] to [*] of the [*] is[*].
ARTICLE 6
SHIPMENT, TITLE, AND RISK OF LOSS; EXPORT OF PRODUCTS; ACCEPTANCE
6.1 DELIVERY OF PRODUCTS: Unless otherwise specified in Attachment
F herein, NGST shall place Products in the possession of the carrier at a time
and date reasonably calculated to
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
4.
effect delivery to Endwave on or before the date or dates specified in each
Order therefore ("Delivery Dates") for delivery to Endwave, F.O.B. NGST Plant,
to the Site specified in Exhibit 1B. NGST shall arrange for shipment of Products
by common carrier to the Site.
6.2 PROTECTION AND PACKING OF THE PRODUCTS: NGST shall arrange to
have all Products suitably packaged in accordance with good commercial
practices. Unless otherwise provided, all packing containers used by NGST shall
be non-returnable.
6.3 RISK OF LOSS AND TITLE: Unless otherwise specified in
Attachment F herein, title and risk of loss for Products shall pass to Endwave
on delivery to the carrier at the NGST Plant, notwithstanding any provisions for
payment of freight or insurance by NGST, or the form of shipping documents, or
the breach or default by NGST at the time of loss. Title and risk of loss of
Products sent to NGST for adjustment shall remain with Endwave until such are
received by NGST.
6.4 SHIPPING DOCUMENTS: After Products have been shipped, NGST
shall deliver to Endwave one (1) copy of the signed Bill of Lading.
6.5 EXPORT OF PRODUCTS: All sales hereunder shall at all times be
subject to the export control laws and regulations of the United States
government and any amendments thereto. Endwave agrees that it shall not make any
disposition, by way of transshipment, re-export, diversion or otherwise, except
as such laws and regulations may expressly permit, of Products, other than in
and to the ultimate country of destination specified in this Agreement or any
Order placed hereunder. Endwave agrees that it shall not knowingly sell,
transfer, or deliver, directly or indirectly, any part or portion of the
Products or related documentation supplied by NGST pursuant to this Agreement to
any person or organization in any country where such sale, transfer, or delivery
by Endwave would be prohibited by law or regulation now or hereafter in effect
which imposes any restrictions on United States trade with foreign countries.
NGST shall furnish ECCN classifications for Products upon request.
6.6 ACCEPTANCE: Unless otherwise specified in Attachment F herein,
a signed air bill or other common carrier documentation indicating receipt by
Endwave constitutes proof of delivery; Endwave will accept Products that conform
to the applicable Order within two (2) business days of receipt or be deemed
accepted thereafter. Such acceptance shall be definitive and final in all cases,
absent fraud. Following such acceptance, Endwave's only remedy for defective
Products shall be as provided in Article 7, Warranty.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
5.
ARTICLE 7
WARRANTY
7.1 WARRANTY:
(a) [*] that [*] for [*] of [*] of [*] to [*], or [*] a
[*] of [*] of [*] with [*] than [*] from [*] of [*] by [*] of [*] of [*], at [*]
or [*] with [*], in [*] from [*] and [*]; provided that [*] is of [*] in [*] for
[*] is [*] in [*]. The [*] is [*] on a [*] of [*] the [*], i.e. [*] of the [*]
are allowed [*]. If [*], the [*] is [*] make [*] or [*] at [*] for [*] to the
[*] at the [*] the [*] was [*] when [*] to [*] and [*] at its [*] and [*] of
such [*]. [*] which are [*] by [*] as [*] the [*] of [*] the [*]. The [*] in
this [*] does [*] (i) to [*] which [*] or are [*] to [*] or [*] by the [*] in a
[*] or [*] to [*] and [*] in [*] at the [*] are [*] to the [*]; or (ii) to [*]
are [*] by the [*] or [*] than[*].
(b) NGST warrants that title to all Products delivered to
the Endwave hereunder will be free and clear of all liens, encumbrances,
security interests and other restrictions.
7.2 EXCLUSION: OTHER THAN THE WARRANTIES SET FORTH IN SECTION 7.1
HEREOF, NGST DOES NOT MAKE ANY WARRANTY, GUARANTEE OR MAKE ANY REPRESENTATIONS,
EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, WHETHER ARISING BY LAW, CUSTOM, CONDUCT OR USAGE OF TRADE,
AND THE RIGHTS AND REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY
OTHER RIGHT OR REMEDIES.
ARTICLE 8
DELAYS
8.1 FORCE MAJEURE: No failure or omission on the part of either
party to carry out or observe any of the terms or provisions of this Agreement
or any Order hereunder (except the payment of money) shall be deemed a breach of
this Agreement or such Order if same shall arise or result from force majeure or
from any cause reasonably beyond the control of Endwave or NGST, as the case may
be, including but without limitation, acts of God, acts (including delay or
failure to act) of any governmental authority (de jure or de facto), war
(declared or undeclared) riot, revolution, fires, labor disputes, sabotage or
epidemics. Should such delay occur, the date or dates of performance by the
affected party shall be extended for a period equal to the number of days during
which performance is so delayed. The affected party shall give the other party
written notice of such delay within five (5) working days after identification
of the delay.
8.2 NGST DELAYS: [*] in [*], if [*] that is [*] for reasons set
out] in [*] or [*]) to [*] to [*] on the [*] of such [*], which [*] the [*] on
which [*] be able to [*] such [*] to[*]. If the [*] by [*] is [*] the [*] the
[*], to [*] its [*] for such [*], by [*] of [*] within [*] of [*] of [*] of [*].
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
6.
To the [*] that there are [*] (as [*] in[*]) or [*] as [*] in [*], there [*] be
made [*] to the [*] and [*] hereof.
ARTICLE 9
TRANSFERS AND ASSIGNMENTS
9.1 TRANSFER: Neither party shall, without the consent in writing
of the other party, which shall not be unreasonably withheld, assign or transfer
this Agreement or the benefits or obligations thereof or any part thereof to any
other person other than a subsidiary wholly owned by such party; provided that
this shall not affect any right of either party to assign, either absolutely or
by way of charge, any moneys due or to become due to it or which may become
payable to it under this Agreement; further provided, that no consent shall be
necessary to the extent that either party is acquired by merger or other
acquisition or either party sells all or substantially all of its assets to a
third party.
9.2 RELEASE OF OBLIGATIONS: No assignment or transfer of any right
or duty hereunder by either party shall constitute a novation or otherwise
release or relieve such party of its obligations hereunder.
ARTICLE 10
DEFAULT
10.1 EVENT OF DEFAULT: An Event of Default on the part of either
party shall exist under this Agreement if:
(a) Such party [*] the [*] any [*] to be [*] hereunder
[*] and [*] and [*] goes [*] for [*] of [*] of[*]; or
(b) Such party [*] its [*] (as the [*] hereunder)
specified in [*] hereof [*] the [*] hereof, or [*] to [*] to be [*] by it [*] of
this [*] the [*] or [*] from the [*] that such [*] has [*]; provided, however,
[*] to [*] this [*] for [*] so [*] as [*] is [*] by [*] in a [*] that [*] that
[*] in [*] to [*] to [*] its [*] for [*] or [*] (as [*] by[*]), and [*] to [*]
in [*] such[*].
10.2 REMEDIES AVAILABLE FOR DEFAULT: Subject to other provisions
hereof which expressly limit the remedies available hereunder, if an Event of
Default as defined in Section 10.1 exists on the part of either party, then the
other party may terminate this Agreement upon giving written notice of
termination and pursue any other remedies available at law or in equity.
ARTICLE 11
LIMITATION OF LIABILITY
11.1 LIMITATION OF LIABILITY: NGST's liability on any claim of any
kind (excluding bodily injury or death), whether based on contract, warranty,
tort (including negligence), strict
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
7.
liability or otherwise, for any loss or damage arising out of, connected with,
or resulting from this order, or from the performance or breach thereof, or from
all Products covered by or furnished under this Agreement or any Order
thereunder, shall in no case exceed the price of the specific individual Product
which gives rise to the claim.
11.2 DAMAGES: In no event shall either party be liable for any
special, indirect, incidental or consequential damages, however caused, whether
by such party's sole or concurrent negligence or otherwise, including but not
limited to costs and expenses incurred in connection with labor, overhead,
transportation, installation, or removal of Products or substitute facilities or
supply sources.
ARTICLE 12
NOTICES
All notices, requests, consents, and other communications required or
permitted to be given under this Agreement must be in writing and mailed by
registered or certified mail to the other party at its respective business
address as follows:
If to NGST: Northrop Grumman Space Technology
One Space Park
Redondo Beach, California 90278
Attention: [*]
Mail Station: D1/1024
Phone: [*]
FAX: [*]
If to Endwave: Endwave Corporation
6425 Capitol Avenue, Bldg. 2
Diamond Springs, CA 95619
Attention: [*]
Phone: [*]
Fax: [*]
ARTICLE 13
CONTRACT CHANGE PROCEDURE
13.1 CHANGES: Any changes to this Agreement after the Effective
Date which relate to: (i) the deletion of Products; (ii) adding additional
Products; (iii) changing or modifying Products; or (iv) making other changes
which do not materially alter the scope of this Agreement shall be made in
accordance with the procedures set forth in this Article 13.
13.2 CONTRACT CHANGES: On an annual basis, the parties shall
revisit the maximum supply commitments and pricing of the Products, as well as
the quantity of Hot Lots permitted
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
8.
hereunder. Based on changes in Endwave's contracts and production forecasts, the
parties may, but shall not be obligated to, negotiate changes to the production
commitments.
13.3 CONTRACT CHANGE NOTICE: If the parties decide to implement a
change request, a standard form Contract Change Notice ("CCN") shall describe
the change. Execution of a CCN by both parties shall constitute a modification
hereof and shall be binding on both parties hereto.
13.4 EXCEPTION: Substitutions relative to Products which are
purchased items not manufactured by NGST may be made by NGST without the consent
of Endwave if such substitutes are of like quality and are available at the same
or lower cost to Endwave.
ARTICLE 14
INTELLECTUAL PROPERTY
14.1 PROPRIETARY INFORMATION. For the purpose of this Agreement:
(a) "Proprietary Information" shall mean all drawings,
documents, ideas, know-how and other information supplied by one party to
another (whether disclosed orally, or in documentary form, by demonstration or
otherwise) for the purpose of achieving the objectives of this Agreement.
(b) "Proper Use" shall mean use of the Proprietary
Information solely by the recipient for the objectives of this Agreement.
14.2 NONDISCLOSURE. All Proprietary Information furnished shall
remain the property of the disclosing party and shall be treated by the
recipient in strict confidence, shall not be used except for Proper Use, shall
be disclosed by the recipient only to persons within the recipient's company
(including companies directly or indirectly more than fifty percent (50%) owned
or controlled by the recipient) who are directly concerned in the Proper Use,
and shall not be disclosed to consultants or by the recipient to any other party
without the disclosing party's prior written consent, except for Proprietary
Information that was:
(a) In the public domain at the time it was disclosed; or
(b) Known to the recipient without restriction at the
time of receipt; or
(c) Published or becomes available to others without
restriction through no act or failure to act on the part of the recipient; or
(d) Known to the recipient from a source other than the
disclosing party without breach of this Agreement by the recipient; or
(e) Subsequently designated by the disclosing party in
writing as no longer proprietary; or
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
9.
(f) Independently developed by the recipient without
reference to the Proprietary Information; or
(g) Disclosed after five (5) years from the date of
delivery by the disclosing party to the recipient, which five (5) year period
shall survive the termination of this Agreement; provided, however, that if
Endwave, as a result of an agreement with a customer, requires a longer
nondisclosure period, the parties shall agree to such longer nondisclosure
periods with regard to Proprietary Information applicable to such customer's
contract.
If any portion of Proprietary Information falls within any one of these
exceptions, the remainder shall continue to be subject to the foregoing
prohibitions and restrictions. The recipient of Proprietary Information shall
inform its employees of the confidential nature of the Proprietary Information
and shall prohibit them from making copies of any of it except where such copies
are necessary for the purposes of Proper Use, unless agreed upon by the
disclosing party. The recipient of Proprietary Information shall exercise the
same degree of care in protecting such Proprietary Information as it takes to
preserve and safeguard its own proprietary information, and in no event less
than a degree of care a reasonable recipient would use to protect its own
proprietary information.
14.3 MARKING. Proprietary Information made available in written
form by one party to the other party shall be marked with the legend:
"ENDWAVE PROPRIETARY INFORMATION"
or - "NGST PROPRIETARY INFORMATION"
as the case may be, or an equivalent conspicuous legend. No sheet or page of any
written material shall be so labeled which is not, in good faith, believed by
the disclosing party to contain Proprietary Information. A recipient of
Proprietary Information hereunder shall have no obligation with respect to any
portion of any written material which is not so labeled or any information
received orally unless it is identified as proprietary and a written summary of
such oral communication, specifically identifying the items of Proprietary
Information, is furnished to the recipient within thirty (30) days of such
disclosure.
The individuals identified below are the only persons authorized to
receive Proprietary Information on behalf of the parties:
For Endwave: [*]
For NGST: [*]
By written notice to the other parties, these representatives may be replaced by
another person from the same party.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
10.
14.4 COMPENSATION. The parties shall not be obligated to compensate
each other for the transfer of any Proprietary Information under this Agreement
and agree that no warranties of any kind are given with respect to such
Proprietary Information or any use thereof. No license is hereby granted under
any patent, trademark or copyrights with respect to any Proprietary Information.
14.5 SURVIVAL. The obligations of the parties concerning
confidentiality set forth in this Article 14 shall survive termination or
completion of this Agreement.
14.6 [*] of [*] and [*] for [*] of [*] (as [*] in [*] or [*] by[*].
14.7 [*] to its [*] for [*] also [*] to [*] and [*] for [*] to its
[*] for [*] in this [*], for those [*] for which [*] to [*] on [*] of [*], the
[*] on [*].
ARTICLE 15
INDEMNIFICATION
15.1 INDEMNIFICATION BY NGST: To the extent that any Products to be
furnished under this Agreement are not to be made in accordance with drawings,
samples, or manufacturing specifications designated by Endwave, but rather are
the design of NGST, NGST agrees that it shall, at its own expense and at its
option, defend or settle any claim, suit, or proceeding brought against Endwave,
based on an allegation that the Products furnished under this Agreement
constitute a direct or a contributory infringement of any claim of any patent,
mask work, copyright or any other intellectual property right. This obligation
shall be effective only if Endwave shall have made all payments then due and if
NGST is notified of said allegation promptly in writing and given authority,
information, and assistance for the settlement or defense of said claim, suit,
or proceedings. NGST shall pay all damages and costs assessed in such suit or
proceedings. In the event of a final adjudication by a court of competent
jurisdiction that its Products or any part thereof infringes or violates any
third party intellectual property right or if the use or sale thereof is
enjoined, or if the provisions of any negotiated settlement agreement prohibit
the use of the Products, NGST shall at its sole option and its own expense,
either:
(1) Procure for Endwave the right to continue using the
Product; or
(2) Replace the Products with substantially equivalent
non-infringing Products; or
(3) Modify the Products so they become non-infringing but
substantially equivalent; or
(4) To the extent that the options set forth in Clauses
(1), (2) and (3) are not reasonably available,
terminate the Endwave's right to use the Product and
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
11.
return to the Endwave a pro-rata portion of the price
originally paid by Endwave to NGST represented by the
remaining useful life of the Product as a percentage
of the total useful life.
The foregoing indemnity does not apply to the following:
(1) Infringement by a combination of Products furnished
under this Agreement with other products not
furnished hereunder unless NGST is a contributory
infringer;
(2) Infringement resulting from changes or modifications
made to or from the Products by the Endwave; and
(3) Any settlements of a claim, suit, or proceeding made
without NGST's written consent.
The foregoing states the entire liability of Seller with respect to infringement
or violation of third party intellectual property rights in connection with
Products furnished under this Agreement.
15.2 INDEMNIFICATION BY ENDWAVE: To the extent that any Products to
be furnished under this Agreement are to be made in accordance with drawings,
samples, or manufacturing specifications designated by Endwave and are not the
design of NGST, Endwave agrees to defend, indemnify and hold NGST harmless to
the same extent and subject to the same requirements as set forth in NGST's
indemnification of Endwave as set forth in Section 15.1 above.
ARTICLE 16
MISCELLANEOUS
16.1 HEADINGS: The headings and titles to the articles, sections,
and paragraphs of this Agreement are inserted for convenience only and shall not
be deemed a part hereof or affect the construction or interpretation of any
provision hereof.
16.2 REMEDIES: Unless otherwise expressly provided herein, the
rights and remedies hereunder are in addition to, and not in limitation of,
other rights and remedies under the Agreement, at law or in equity, and exercise
of one right or remedy shall not be deemed a waiver of any other right or
remedy.
16.3 MODIFICATION AND WAIVER: No cancellation, modification,
amendment, deletion, addition, or other change in the Agreement or any provision
hereof, or waiver of any right or remedy herein provided, shall be effective for
any purpose unless specifically set forth in a writing signed by the party to be
bound thereby. No waiver of any right or remedy in respect of any occurrence or
event on one occasion shall be deemed a waiver of such right or remedy in
respect of such occurrence or event on any other occasion.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
12.
16.4 ENTIRE AGREEMENT: This Agreement supersedes all other
agreements, oral or written, heretofore made with respect to the subject hereof,
and the transactions contemplated hereby and contains the entire agreement of
the parties.
16.5 SEVERABILITY: Any provision hereof prohibited by or unlawful
or unenforceable under any applicable law of any jurisdiction shall as to such
jurisdiction be ineffective without affecting any other provision of the
Agreement. To the full extent, however, that the provisions of such applicable
law may be waived, they are hereby waived, to the end that the Agreement be
deemed to be a valid and binding agreement enforceable in accordance with its
terms.
16.6 CONTROLLING LAW: All questions concerning the validity and
operation of this Agreement and the performance of the obligations imposed upon
the parties hereunder shall be governed by the laws of the State of California
applicable to contracts entered into and wholly to be performed in such
jurisdiction. The UN Convention on the Sale of Goods will not apply to this
Agreement.
16.7 SUCCESSORS AND ASSIGNS: The provisions of this Agreement shall
be binding upon and for the benefit of NGST and Endwave and their respective
successors and assigns. This provision shall not be deemed to expand or
otherwise affect the limitation on assignment and transfers set forth in Article
9 and no party is intended to or shall have any right or interest under this
Agreement, except, as provided in Article 9.
16.8 COUNTERPARTS: This Agreement has been executed in several
counterparts, each of which shall be deemed to be an original, and all such
counterparts together shall constitute but one and the same instrument.
16.9 LANGUAGE: If a translation of this Agreement is required or
otherwise made, the English version shall be the official version and shall
control in the event of differences. All communications relating to this
Agreement shall be in English.
16.10 NEGOTIATED TERMS: All terms of this Agreement were negotiated
between the parties at arm's length. The parties agree that in the event a
dispute arises in connection with this Agreement, the terms contained in this
Agreement shall be given their plain meaning, and that no term shall be
construed in favor of one party over the other by virtue of one party having
drafted a term in this Agreement.
16.11 RELATIONSHIP BETWEEN THE PARTIES: The parties hereto are
independent contractors and each will conduct its business hereunder solely as a
principal for its own account. Nothing in this Agreement will be deemed to
create an agency, employment, partnership, fiduciary or joint venture
relationship between the parties. Neither party has, and nor will it represent
to any third party that it has, the power or authority as agent, employee or in
any other capacity to represent, act for, bind or otherwise create or assume any
obligation on behalf of the
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
13.
other party for any purpose whatsoever. There are no third party beneficiaries
under this Agreement.
ARTICLE 17
JURISDICTION; SERVICE OF PROCESS; ARBITRATION
17.1 JURISDICTION Without derogation of the arbitration provisions
set forth in this Article 17, if a party has a legitimate need to seek relief
from a court of law (i.e., to seek injunctive relief or to enforce an
arbitration award), then each party hereto irrevocably and unconditionally (i)
agrees that any suit, action or other legal proceeding arising out of or in
connection with this Agreement shall be brought exclusively in the United States
District Court for the Central District of California or, if such court does not
have jurisdiction or will not accept jurisdiction, venue of any court of general
jurisdiction in the County of Los Angeles, California; (ii) consents to the
jurisdiction and venue of any such court in any suit, action or proceeding; and
(iii) waives any objection which such party may have to the laying of venue of
any such suit, action or proceeding in any such court. The parties expressly
acknowledge that this Section 17.1 is merely a venue provision, and will not
derogate, detract from or alter, in any way, the parties' agreement with respect
to arbitration as provided in this Article 17
17.2 SERVICE OF PROCESS Each of the parties agrees that any service
of any process, summons, notice or document by US registered mail to such
party's respective address set forth in Article 12 shall be effective service of
process for any suit, action or proceeding in California with respect to any
matters for which it has submitted to jurisdiction pursuant to Section 17.1
above.
17.3 [*] and [*] that by [*] this [*] they are [*] to a [*] with
[*] to any [*] to or [*] of[*].
17.4 SETTLEMENT OF DISPUTES: Except as expressly provided in
Section 17.1 hereof, all disputes, differences or claims arising out of or
relating to this Agreement or the performance, enforcement, breach, termination
or validity thereof shall be resolved as set forth in Annex 17.4 hereto.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
14.
IN WITNESS WHEREOF, the parties have executed this Agreement in English as of
the date and year first set forth above.
ENDWAVE CORPORATION
By: [*]
[*]
Senior Vice President
NORTHROP GRUMMAN SPACE &
MISSION SYSTEMS CORP.
By:__________________________
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
15.
EXHIBIT 1A
LIST OF PRODUCTS & SERVICES
1a. [*] wafers utilizing the following process technologies (Application
frequency refers to frequency of transmission of end product):
Technology Application
- ---------- -----------
[*]
[*]
[*]
[*]
[*]
[*]
Standard wafer processing with die thickness of [*] will be utilized.
Wafers will be screened via standard Process Control Monitors ("PCM").
All PCM good wafers will be delivered to Endwave and Endwave will
accept delivery.
1b. [*] in [*] a [*] of [*] will be [*] on a [*] at the [*] of the[*].
1c. [*] to [*] will be [*] on a [*] at the [*] of the[*].
1d. Developmental Multiproject Masks "Pizza Mask" wafers will be quoted on
a case-by-case basis at the sole discretion of the Seller.
1e. Nonstandard/Special Handling Wafers are defined as those that do not
fully comply with the standard foundry design rules (i.e. foundry
design and layout rules) or outside of standard processing practices
and will be quoted on a case-by-case basis at the sole discretion of
the Seller.
1f. MMICs to be offered include those subject to Paragraph 1a of this
exhibit and which fall into one of the following categories:
- [*] for [*] as [*] for [*] that are [*] or [*] to [*] will be [*]
on a[*].
- [*] which were [*] and [*] for the [*] and [*]
- Endwave [*] for [*]. Does [*] as [*] in [*]
- [*]
Other products will be offered on a case-by-case basis
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
16.
EXHIBIT 1A (CONT.)
LIST OF PRODUCTS & SERVICES
2. NGST Telecom Standard Products Chips. Various Standard Product Chips
available from the Standard Products Catalog may be purchased in small
quantities, i.e., quantities requiring fewer chips than one wafer lot
yields.
3. The [*] is [*] this [*].
4. Design, development and startup of [*]. The [*] and [*] and [*] are [*]
in [*] and [*] and[*].
5. Time & Material (T&M) engineering support for failure analysis, device
troubleshooting, mask layouts, and related support, shall be billed per
the hourly rates per Attachment G herein. Material shall be billed as
incurred.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
17.
EXHIBIT 1B
PRICE, QUANTITY COMMITMENTS,
DELIVERY SCHEDULE AND ENDWAVE'S SITE
A. PRICE:
- Wafer processing pricing per Attachment B: Wafer Processing
Price Matrix/Wafer Volume
- Wafer test pricing per Attachment C: Wafer Test Price Matrix
($/Wafer)
- Developmental Wafer prices per Attachment D: Developmental Lot
Price Matrix
- Multi-project Masks "Pizza Masks" Wafer prices will be quoted
on a case by case basis
- Special Handling Wafer prices will be quoted on a case by case
basis
- [*] and [*] per [*] and [*] and [*]
- Time & Material (T&M) Rates per Attachment G: Time and
Material (T&M) Labor Rates
B. [*]:
As per[*].
C. [*]:
[*] of [*] of each [*] per [*] for [*] and [*] be [*] on[*].
D. DELIVERY SCHEDULE:
[*] in [*] herein, [*] is [*] from [*] of [*] per [*] be [*] as [*],
which will be [*] in [*] from [*] of [*].
E. NEW PRODUCT DESIGNS:
Endwave will pay the direct costs for engineering services and the cost
of layout design, fabricating engineering masks/"Pizza Masks" and
testing under time and material pricing specified in Attachment B.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
18.
EXHIBIT 1B (CONT.)
PRICE, QUANTITY COMMITMENTS,
DELIVERY SCHEDULE AND ENDWAVE'S SITE
F. LONG TERM WAFER HOLDS (DOES NOT APPLY TO CONSIGNMENT PRODUCTS, REFER TO
ATTACHMENT F):
At the written direction of the Endwave, Seller will hold in process
wafers not to exceed [*] of [*] at any [*] the [*] below:
- [*] of [*]
- [*] of [*]
Seller will hold product at the intermediate process step specified
above for up to [*]. At that time, Endwave will either authorize
processing to the next step or Endwave will pay cancellation charge
equal to the list price of the Product, as specified in Exhibit 1B,
multiplied by the percent to cancel the Order as follows:
- [*] at [*] of [*]
- [*] at [*] of [*]
G. SITE
Billing/Corporate:
776 Palomar Avenue (after April 26, 2004)
Sunnyvale CA 94085
[Prior to April 26, 2004:
990 Almanor Avenue
Sunnyvale, CA 94086]
Or
Deliveries:
6425 Capitol Avenue, Bldg 2
Diamond Springs, CA 95619
Or
Engineering/Procurement:
1 Technology Drive
Andover, MA 01810
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
19.
ATTACHMENT A: NGST DOCUMENT [*]
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
20.
ATTACHMENT B: WAFER PROCESSING PRICE MATRIX/WAFER VOLUME
[*] WAFER PROCESSING PRICING TABLE
TECHNOLOGY [*] BASE PRICE PER WAFER
- ---------- ------------------------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*]: The [*] for [*] is [*] to [*].
[*]: A [*] will be [*] to the [*] from the [*].
[*]: The [*] the [*] for [*] will be [*] to [*].
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
21.
ATTACHMENT C: WAFER TEST PRICE MATRIX ($/WAFER)
TEST METRIC [*]
<300 [*]
301 - 600 [*]
601 - 1200 [*]
1201 - 2400 [*]
2401 - 3000 [*]
>3000 [*]
The Test Metric is calculated as follows: Number of Sites per Wafer x
Number of Test Passes
This table is for production testing only. Design mask set and
diagnostic testing are covered under the Attachment G herein.
[*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
22.
ATTACHMENT D: DEVELOPMENTAL LOT PRICE MATRIX
TECHNOLOGY [*] BASE PRICE PER LOT
- ---------- ----------------------
[*] [*]
[*] [*]
[*] [*]
[*] [*]
[*] [*]
Deliverable: [*] of [*] completely processed and tested wafers that pass PCM
specifications.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
23.
ATTACHMENT E
[*] NRE AND [*] AND [*]
Table 1 - NRE & [*]
PRODUCTION
START
NRE PRICE/PAYMENT PRICE/PAYMENT
ITEM/TASK DESCRIPTION MILESTONE MILESTONE
- ----------------------------------------------------------------------- ----------------- -------------
[*] of [*] to [*] at [*] as [*] as [*] of [*] for [*] and [*] that [*]. [*] of [*].
[*] of [*] the [*] and [*] for the [*] in the [*]. The [*], and [*] are [*] that
[*] has [*] and[*]. The [*] and [*] are [*] that [*] has [*] and [*], however,
[*] that it will [*] being [*] as having the [*] and [*] to any [*], without [*]
that it will [*] the [*] for [*] and [*] for any [*] than[*].
Table 2 - Prototype Parts
PART PRICING
- ---- -----------------------------
[*] [*] by [*]
[*] [*] by [*] will be [*] on[*].
[*] [*] by [*] will be [*] on[*].
Note: Table 2 of Attachment E addresses pricing for prototype parts needed to
support Endwave's prototyping and qualification activities.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
24.
ATTACHMENT F - LOGISTICS APPENDIX
1. SCOPE AND OBJECTIVE
The object of this Logistics Appendix is to identify the procedures for
forecasting, ordering, shipping and invoicing the Products listed in
Schedule 1 to this Logistics Appendix ("Schedule 1") between Endwave
and NGST in order to specify the procedures unique to that particular
site which are not otherwise covered by the Agreement.
In the case of any inconsistencies between this Logistics Appendix and
the Agreement, the text of the Agreement shall prevail.
This Logistics Appendix shall not create any obligation for Endwave to
purchase any particular quantity of Products from NGST until the
initial order has been placed for the Products by LOCAL Endwave.
The Parties acknowledge that this Logistics Appendix does not govern
the forecasting, ordering, shipping or invoicing logistics for any
sites of Endwave or NGST other than Endwave's manufacturing site
located in SUNNYVALE, CA, DIAMOND SPRINGS, CA, OR ANDOVER, MA and
NGST's facilities located at NORTHROP GRUMMAN SPACE TECHNOLOGY, ONE
SPACE PARK, REDONDO BEACH, CA 90278, USA or any other NGST designated
facility. In addition, the Parties acknowledge that this Logistics
Appendix does not govern the forecasting, ordering, shipping or
invoicing for any products other than those Products listed in Schedule
1 to this Logistics Appendix.
2. FORECASTING
2.1 FORECAST
Endwave agrees to provide real time access to the forecast of its
anticipated purchasing needs to the NGST, in order to permit NGST to
plan for an adequate manufacturing capacity.
The forecast provided by Endwave to NGST shall not be regarded as
binding upon Endwave under any circumstAnces.
The forecasting principles (e.g. existence, content, time period and
method of the forecast) for each Product will be managed in a mutually
agreed way.
2.2 COMMITMENT TO FORECAST
Under the operation of Supplier Managed Inventory (as outlined in
Clause 3.2 of this Logistic Appendix), NGST will operate and manage
consignment stock at Endwave's factory. Stock levels will be maintained
by NGST between the minimum and maximum levels as defined in Schedule
1. There is no requirement for NGST to maintain any buffer stock at its
facilities as in regards to the Products in the consignment stock.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
25.
3. INBOUND LOGISTICS MODES OF OPERATION
3.1 STANDARD PURCHASE ORDER
In addition to obtaining Products pursuant to the model described in
Clause 3.2 of this Logistics Appendix, Endwave shall have the option to
order Products from NGST under the Common Purchase Order method as
specified in Section 4.4 of the Agreement, in such instances, Endwave
shall submit single purchase orders to NGST for the purchase of
Products.
3.2 SUPPLIER MANAGED INVENTORY (SMI) WITH CONSIGNMENT
3.2.1 DEFINITION
Supplier Managed Inventory with Consignment is a mode of operation in
which NGST commits to control inventory between Minimum and Maximum
levels specified in Schedule 1 and to deliver Products to Endwave's
site specified herein. The ordering and other communication between
Endwave and NGST will be managed in a mutually agreed way.
Consigned Products are held on Endwave's premises but owned by NGST.
The title of all consigned Products shall transfer to Endwave when the
Product is removed from consignment inventory.
3.2.1.1 [*]
[*] in the [*] at [*] than [*] from [*] of [*] from [*] will be [*] by
[*]. A [*] or [*] by [*] of [*] will [*] and [*] for [*] by [*] than
[*] from [*] of [*] from[*].
3.2.1.3 Stranded Work-In Process
In the event that Endwave wishes to reduce the "Maximum" level of
inventory required for a Product, NGST shall have the right to invoice
Endwave for actual manufacturing costs associated with NGST's work in
process inventory for the Product (the "Stranded Cost Reimbursement").
For each product listed on Schedule 1, NGST shall have a one-time right
to such reimbursement. In no event shall the amount of the Stranded
Cost Reimbursement exceed 75% of purchase price per Product multiplied
by the maximum stock levels inventory from Schedule 1. Any amounts due
under the Stranded Cost Reimbursement shall be in addition to amounts
invoiced for all units held at Endwave longer than [*] due NGST under
3.2.1.1.
NGST reserves the right to enter Endwave's consigned facilities with a
48-hour prior notice to Endwave and during normal business hours.
NGST, at Endwave's consignment facilities, may perform quarterly
inventory counts. At year-end, Endwave shall supply NGST with a written
confirmation of inventory balances. For quarterly confirmation
purposes, inventory on hand at Endwave's
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
26.
consignment facilities as of 5:00 p.m. at Endwave's time will be
considered NGST inventory.
3.2.2 DESCRIPTION OF THE MODE OF OPERATION
NGST is responsible for evaluating Endwave's inventory parameters and
current inventory on hand and making decisions whether NGST needs to
replenish the consigned inventory held on Endwave's premises or not. It
is the responsibility of NGST to maintain inventory levels within the
parameters. Inventory information is sent regularly by Endwave and
contains Min/Max inventory parameters, Inventory on Hand in the
consignment and last receipts information. Endwave will furnish
Inventory Reports to NGST on a mutually agreed basis. For accounting
and bookkeeping purposes Endwave will raise a frame order for all
Products held in the consignment.
Upon receipt of Products at Endwave's site, Endwave shall perform top
and bottom side inspection of Products. This inspection will verify
bottom side metalization and top side obvious defects to insure that
receipt of Products are acceptable from a mechanical stand point and
that no physical damage exists. Endwave will advise NGST of any defects
within 2 business days of receipt, after which time the Products shall
become consigned Product. Endwave will physically hold the consigned
Products on its premises Endwave shall take care of the day-to-day
materials handling. Endwave is responsible for insuring the consigned
Products. Endwave shall provide evidence of such insurance coverage to
NGST thirty (30) days after execution of a contract amendment
implementing this Logistics Appendix. Endwave is responsible for
miscalculations of the units by Endwave and all loss or damage caused
to the Products after they have been loaded for shipment at NGST's
facilities until Endwave removes the Products from the consignment
stock. NGST is responsible for miscalculations of the units by NGST and
any loss or damage caused to the Products before the Products are
loaded for shipment.
4 FLEXIBILITY AND TERMS OF REPLENISHMENT
NGST is committed to maintain its ability to replenish the Products
according to the Flexibility Schedule agreed between Endwave and NGST
and specified in Schedule 1. The flexibility requirements define the
quantity of Products above the given basic level NGST shall be ready to
replenish. The given level can be based on Endwave's manufacturing
capacity, on Endwave's forecast, or as otherwise defined by Endwave.
Schedule 1 specifies the basic level flexibility requirement and the
flexibility requirements for each Product governed by this Logistics
Appendix.
If NGST cannot replenish the Products in accordance with the agreed
replenishment times (Schedule 1) then NGST shall as soon as NGST
becomes aware of the delay inform Endwave about:
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
27.
(a) Identification of which kind and what quantities of the
Products will be delayed;
(b) The anticipated duration of delay for each kind and quantity;
(c) The cause(s) of the delay;
(d) The actions that NGST is taking and will take to remedy or
shorten the delay; and
(e) A proposal, subject to mutual agreement, of a new
replenishment date for each kind and quantity of the delayed
Products.
In order to avoid any further replenishment delay, NGST shall use
commercially reasonable efforts (such as, but not limited to, expedited
freight), at the cost of NGST, to minimize the possible delay.
If the consignment stock is reduced below the minimum level, due to a
non-forecasted event, the replenishment time to get back to the minimum
level will be mutually agreed to.
NGST is not responsible for delays due to shipping after calling for a
pick-up or delivery.
5. PASSING OF TITLE
Title to the Products shall pass to Endwave upon the consumption from
the consignment stock.
6. TERMS OF PAYMENT
Payments shall be made in accordance with Article 5 of the Agreement.
7. INVOICING
7.1 SELF-BILLING
Endwave will provide NGST with billing details and summaries of all
self invoicing upon removal of the inventory for [*] from the [*], or
[*] in [*] in [*] of [*] from [*] of [*]
A. Self-Billing detail upon removal from inventory
B. Self-Billing cumulative summary upon removal from inventory
1. Data fields for the above reports
a) Packing Slip control #
b) Date shipped
c) Airborne Express #
d) Lot No
e) Wafer #
f) Circuit name
g) Customer Part #
h) PO #
i) Notes
j) Endwave Receipt Date
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
28.
k) Inventory Pull Date
l) Invoice Date
m) Price
n) [*]
PRODUCT CONSUMPTION REPORT
Endwave will submit a written report of all Products consumed from
stock to NGST, on an accounting schedule which conforms to Article 5 of
the Agreement (i.e., A Period or B Period), and Endwave will work with
NGST in providing periodic billing reports as required. The report will
include consumed Product(s)' identification and agreed-upon contract
price. Products are considered to be consumed upon the earlier of 1)
when they are physically moved from consignment stock to Endwave's use;
2) removed from Endwave's Inventory Report; or 3) [*] by [*] than [*]
from [*] of [*] from [*].
The self-billing report shall include the following information:
- Material consumption time (dd.mm.yy - dd.mm.yy)
- NGST's contact information
- Description of goods:
- Endwave part number & description
- NGST part number
- Quantity used
- Value defined in the agreement with Endwave and NGST at the
time of consumption.
- Received quantity
- Invoiced quantity
- Total value
- Total amount to be paid
- Wafer number
Self-billing requires agreement and capabilities from Endwave and NGST.
8. FINAL PROVISIONS
Any modifications or amendments to the text of this Logistics Appendix must be
made in writing and signed by authorised representatives of both Parties.
However, the Parties acknowledge that Schedule 1 attached hereto is intended to
be revised periodically and to the
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
29.
extent that such revisions do not conflict with the terms of the Agreement or
this Logistics Appendix, updated versions of Schedule 1 may be issued upon the
signatures of authorised representatives of both Parties and without requiring a
formal amendment to the Agreement.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
30.
ATTACHMENT G
TIME AND MATERIAL (T&M) LABOR RATES
CALENDAR YEAR [*]
ACCT [*]
CODE LABOR CATEGORY HOURLY RATES
- ---- ----------------- ------------
[*] Eng B [*]
[*] Eng C [*]
[*] Eng D [*]
[*] Eng E [*]
[*] Administrator [*]
[*] Clr/Administrator [*]
[*] Technician [*]
[*] Elec Assy [*]
[*] Planning [*]
[*] Assembly [*]
[*] Fabricate [*]
[*] Inspection [*]
[*] Eng Engr [*]
Note: 1) The above rates exclude material costs.
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
31.
[*] (TO [*] OF [*])
[*]
A In the [*] of [*] or [*] of or [*] to this [*] or the [*] or [*] (the
[*]), the [*] their [*] to [*] the [*]. To this [*], they [*] and [*]
with [*], in [*] and [*] of their [*], to [*] a [*] and [*] to [*]. If
they [*] such [*] a [*] of [*], then, [*] as [*] in [*] of this [*],
the [*] be [*] by [*] by and in [*] with the [*] of [*] (the [*]) for
[*], as such [*] on the [*] of the [*].
B. [*]: (a) The [*] be [*] of [*] to be [*] by [*] and the [*] to be [*]
by the[*]. In the [*] of [*] of the [*] to [*] on the [*] within[*],
the [*] be [*] by the [*]: the [*] the [*] to [*] it [*] for a [*], and
to [*] the [*] of the [*] together with [*] to the [*]. Each of the [*]
be [*] who can [*] the [*] set out in [*] of [*], will [*] to the [*]
by this [*] of [*], and will [*] the [*] if [*]. Each of the [*] then
have the [*] of [*] for [*], of [*], and of [*] the [*] of the [*]. The
[*] then [*] the [*] as the [*]. Each of the [*] on the [*] be [*] of
the [*] and [*] in [*] be [*] in [*], and [*] have [*] at [*].
(b) The [*] take [*] in [*] and the [*] to be [*], to the
[*] in this [*] or [*] by the [*], are the [*]. The [*] will [*] and
[*] the [*] in [*] with its [*] and [*] to that [*] of[*]. The [*] are
[*] to [*] or [*] this[*].
(c) The [*] be [*] on the [*] to [*], and [*] with the
[*] of [*] of [*] and [*] thereto. [*] to a [*] or other [*] to [*] for
[*] of the[*].
(d) The [*] be [*] in[*]. The [*] in the[*].
(e) [*] the [*] may be [*] in [*], or [*] may be [*] to
such [*] for a [*] of the [*] or an [*] of [*], as the [*].
(f) The [*] that the [*] of any [*] be [*], to the [*]
that [*] of it [*] be [*] in [*] or [*] the [*] of the [*] to [*] by
the [*] for [*]. The [*] of the [*] be [*] and [*] to [*] and [*] of
the [*] and to [*] of [*] to [*] of [*] as [*] as is [*] but in [*] in
[*].
(g) [*] of [*], it is [*] that [*] be [*] have [*] or [*]
with a [*].
(h) Pursuant to [*] of [*] and [*], the [*] and [*] such
[*] into [*] the [*] of the [*] and the [*] of [*] and [*]. The [*]
take [*] by the [*] only: [*] for [*] of [*] not to [*], and [*] of [*]
than [*] and any [*] that the [*] to[*]. The [*] may [*] to [*] the [*]
of [*] and [*] in the [*]. The [*] to the [*] and [*] of all [*], and
[*]. The [*] the [*] as to [*] the [*].
(i) The [*] of the [*] be by [*] and [*] be [*] on the
[*] of the [*] of[*].
(j) The [*] of [*], including [*] by [*] or [*] of the
[*] in [*] as the[*].
(k) The [*] have the [*] to [*] this [*] and [*] the [*]
of its[*].
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
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32
(l) [*] as [*] in [*] of this [*], the [*] of the [*] the
[*] and [*] any [*] or [*] to the [*] and [*] be [*] and [*] of any [*]
or [*]. Any [*] or [*] to [*] the [*], to the [*] by [*] the [*] such
[*].
CERTAIN CONFIDENTIAL INFORMATION IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
33