SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (this "Agreement") is made and entered into as of June 2,
1997, by and among UPSYS, a corporation formed under the laws of France
("Manufacturer"), UPSYS-CERPROBE, L.L.C., an Arizona limited liability company
("Purchaser" or "Company"), and CERPROBE CORPORATION, a Delaware Corporation
("Cerprobe").
RECITALS
A. Purchaser was formed by Manufacturer and Cerprobe, pursuant to an
operating agreement signed on February 12, 1997, (the "Operating
Agreement"), to engage exclusively in the assembly, testing, repair and
sale to Manufacturer of all versions of the Upsys Cobra Probe (the
"Products") based on the Upsys Technology, as defined below, and its
component parts ("Product Components") as more specifically described
in Exhibit A, which may be updated or amended from time to time.
B. Manufacturer is engaged in, among other things, the design, engineering
and manufacture of the Products, involving certain UPSYS technology
described in the Operating Agreement (the "Upsys Technology").
C. The Products consist of three main Product Components: (i) the probes
formed in an arc, (ii) space transformers and (iii) printed circuit
boards, used in probing semiconductor wafers.
D. Manufacturer and Purchaser desire that Purchaser assemble the Products
and act as the exclusive assembly and repair facility for the Products
in the Territory (as hereinafter defined), and that Manufacturer supply
Purchaser with the Product Components, the first complete Products
(i.e., a complete set of cards), training and engineering, all as set
forth in this Agreement.
E. Manufacturer and Purchaser also desire that Purchaser be granted the
right to distribute the Products exclusively to Manufacturer and that
Purchaser, concurrently with the execution of this Supply Agreement,
enter into a distribution agreement with Cerprobe and Manufacturer,
whereby Manufacturer shall grant to Cerprobe the exclusive right to
distribute the Products in the Territory (the "Distribution
Agreement"). A copy of the Distribution Agreement is attached as
Exhibit B.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto agree as follows:
1. Appointment of Purchaser; Assembly, Testing, Maintenance and Repair
Facilities and Distribution.
(a) Subject to and in accordance with the terms and conditions of
this Agreement, Manufacturer hereby appoints Purchaser as its
Exclusive (as defined below in this section) authorized
assembly and repair facility for the Products in the
Territory, as defined below. Purchaser shall establish
assembly and repair facilities initially in Cerprobe's
facility in Arizona.
(b) Subject to and in accordance with the terms and conditions of
this Agreement, Manufacturer hereby appoints Purchaser as its
Exclusive authorized assembly and repair facility for the
Products in the Asian Territory, as defined below, through
March 31, 1998. The continuation and the nature of the
assembly and repair rights in the Asian Territory beginning
April 1, 1998 and thereafter shall be determined by
Manufacturer prior to such date taking into consideration the
Company's production capacity and Cerprobe's sales performance
in the Asian Territory.
(c) Subject to and in accordance with the terms and conditions of
this Agreement and the Distribution Agreement: (i)
Manufacturer grants Purchaser the right to sell the Products
exclusively to Manufacturer, (ii) for its needs in the
Territory, Manufacturer agrees to purchase Products
exclusively from Purchaser, and (iii) Manufacturer agrees to
purchase from Purchaser all Products ordered by Cerprobe
pursuant to the Distribution Agreement and assembled or
purchased by Purchaser. Pursuant to the terms of the
Distribution Agreement, the parties agree that Manufacturer
will grant to Cerprobe the Exclusive right to distribute
Products in the Territory.
(d) During the term of this Agreement, Manufacturer shall not
directly or indirectly enter into any agreement or arrangement
other than this Agreement and the Distribution Agreement for
the assembly, repair, or distribution of the Products in the
American Territory, nor shall Manufacturer establish its own
facilities to provide such services, or itself conduct
assembly, repair or distribution activities, within the
Territory. Manufacturer shall further refer, and cause all of
its employees, agents, and representatives to refer, to
Purchaser or Cerprobe all persons and entities within the
American Territory that require or request repair or assembly
and distribution, respectively, of Products.
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(e) During the term of this Agreement, depending on Manufacturer's
decision under Section 1(b) above, Manufacturer shall not
directly or indirectly enter into any agreement or
arrangement, other than this Agreement and the Distribution
Agreement, for the assembly, repair or distribution of the
Products in the Asian Territory or to provide such services
for customers within the Asian Territory, nor shall
Manufacturer establish its own facilities to provide such
services, or itself conduct assembly, repair or distribution
activities, within the Asian Territory. Manufacturer shall
further refer, and cause all of its employees, agents and
representatives to refer, to Purchaser or Cerprobe all persons
and entities within the Asian Territory that require or
request repair or assembly and distribution, respectively, of
Products.
(f) For the purposes of this Agreement, "Exclusive" shall mean
that Manufacturer will not knowingly permit the establishment
of an assembly, testing or repair facility other than
Purchaser or a distributor other than Cerprobe in the American
and Asian Territories, as defined below. In conformity with
U.S. and other applicable national or international anti-trust
laws, Manufacturer does not guarantee that there will be no
competition with Purchaser from third parties.
2. Territory. The "American Territory" is defined for purposes of this
Agreement as the United States of America (including territories
thereof), and the "Asian Territory" as South Korea, Japan, Singapore,
Malaysia and Taiwan. The American Territory and the Asian Territory are
collectively referred to as the "Territory."
3. Supply by Manufacturer.
(a) Manufacturer shall exclusively be responsible for the design,
engineering and manufacture of the Products and Product
Components. For each initial order for a customer, Purchaser
shall order and Manufacturer shall provide an initial example
of the assembled Product to Purchaser (the "First Set").
Purchaser shall then be responsible for the assembly of the
Products in conformity with the First Set.
(b) Certain elements of the Products and Product Components (in
particular, the custom designed space transformers and the
printed circuit boards) may be provided to Manufacturer by
Cerprobe or other suppliers, or may be provided to
Manufacturer by the customers as agreed to by Manufacturer
after consultation with Cerprobe on a case-by-case basis.
(c) Subject to Sections 1(b) and 1 (d) above, the provisions of
the Distribution Agreement, and applicable antitrust rules and
regulations, Manufacturer will not sell or supply the Products
or Product Components to any person or entity (other than
Purchaser or Cerprobe) located in the Territory or, to the
best of its knowledge, to
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a person or entity (other than Purchaser or Cerprobe) that
intends to ship them into the Territory for sale.
(d) Manufacturer agrees to provide improvements on the Products
and manufacturing process to Purchaser from time to time in
function of the evolution of the Upsys Technology.
4. Tooling and Equipment. Manufacturer shall also supply Purchaser with
all tooling and equipment agreed to between the parties as reasonably
necessary for Purchaser to perform its obligations under this
Agreement, including, but not limited to, the tooling and equipment
described in Exhibit C (the "Upsys Equipment"). The Upsys Equipment
shall be either purchased or leased by Purchaser from Manufacturer at
the prices and rates set forth in Exhibit C. The parties agree that
such prices and rates will be reviewed annually on the basis of
currency fluctuations, inflation, changes in prices and changes in
interest and leasing rates.
5. Ordering Procedures, Delivery and Acceptance.
(a) Ordering Procedures. All orders for Products and Product
Components pursuant to this Agreement shall be subject to the
terms and conditions set forth in Exhibit D, notwithstanding
any other terms specified in any purchase order.
(b) Delivery. Manufacturer will use its best efforts to deliver
Products and Product Components to Purchaser's carrier at the
Manufacturing Facilities (as defined below) on the dates
requested by Purchaser as set forth in any purchase orders.
(c) Firm Orders. All purchase orders are firm. Should any purchase
orders change after acceptance thereof by Manufacturer, any
and all costs related to such change in the purchase order
shall be at Purchaser's expense.
(d) Acceptance. Once accepted, Products and Product Components may
not be returned or exchanged except in such cases and under
such terms and conditions as set forth in Article 15 or under
the terms and conditions of Section 10.3(b) of the Operating
Agreement.
6. Purchase Price.
(a) Product Component Pricing. The purchase price for Products and
Product Components shall be as set forth in Exhibit A. The
parties agree that the prices set forth in Exhibit A will be
reviewed annually on the basis of currency fluctuations,
increases in inflation and change in any of the applicable
price indexes for raw materials used in the Product
Components. Manufacturer shall notify Purchaser of the price
revisions forty-five days (45) prior to the implementation of
such revisions.
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Any change in the purchase price shall only apply to orders
received by Manufacturer following lapse of such 45-day
notification period.
(b) First Set Price. The price of the First Set of each Product
shall be determined by Manufacturer upon request for a
quotation by Purchaser.
(c) Shipping Costs. The purchase prices established hereunder for
Products and Product Components are and shall be prices EX
WORKS as defined in the INCOTERMS 1990 (except that delivery
will occur when Purchaser's carrier takes possession of the
goods) from any of Manufacturer's manufacturing facilities
whether in Corbeil, France or otherwise (the "Manufacturing
Facilities"). All Products and Product Components shall be
packaged by Manufacturer for shipment by a carrier of
Purchaser's choice. All Products and Product Components shall
be packaged by Manufacturer as necessary for protection
against damage during shipping and handling. All costs of
preservation, waterproofing or other special packaging shall
be paid by Purchaser. All charges incurred subsequent to the
delivery of Products and Product Components for shipment,
including without limitation, freight, insurance, customs,
duties, demurrage charges and turnover, sales, excise and
other foreign, federal, state or local taxes, shall be borne
by Purchaser or, if paid or incurred by Manufacturer, shall be
reimbursed by Purchaser to Manufacturer including a twenty
percent (20%) additional fee. Purchaser will contract directly
with the carrier to pay all shipping costs.
(d) Emergency Deliveries. If Purchaser, from time to time,
requires emergency delivery of Products and/or Product
Components, all extra costs for air freight for such emergency
delivery shall be borne by Purchaser.
(e) Payment of IBM Royalties. Manufacturer represents that it is
presently a party to an IBM technology license agreement (the
"IBM Technology Agreement") and a license agreement related to
the French patent number 7,715,179 (the "License") between
Manufacturer and International Business Machines Corporation
("IBM") related to the use of the Upsys Technology and patent
for the manufacture and sale of the Products, and Manufacturer
is required to pay IBM royalties (the "IBM Royalties") as set
forth in Exhibit E. The IBM Royalties shall be paid in the
following manner:
(i) Manufacturer shall be responsible for the payment to
IBM of all IBM Royalties relating to the sale of
Products, Product Components, and related goods and
services pursuant to this Agreement or the
Distribution Agreement, and, as among the parties
hereto, Manufacturer shall be solely responsible
(without right of reimbursement) for IBM Royalties
due on the selling price of Products and Product
Components sold by Manufacturer to Purchaser pursuant
to this Agreement (the "Upsys Selling Price");
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(ii) Purchaser will reimburse Manufacturer for the IBM
Royalties due on or arising from: (1) the difference
between the Upsys Selling Price and the selling price
of the assembled Products sold by Purchaser to
Manufacturer for distribution under the Distribution
Agreement, (2) the difference between the selling
price of the assembled Products sold by Purchaser to
Manufacturer and the selling price of the Products
from Manufacturer to Cerprobe, and (3) associated
non-warranty repair services from Purchaser to
Cerprobe for distribution under the Distribution
Agreement. Purchaser will make such reimbursement of
IBM Royalties to Manufacturer within 15 days
following invoice therefor by Manufacturer. Such
invoices shall be submitted to Purchaser within 15
days following the end of each quarter, and shall be
accompanied by supporting documentation.
7. Payment for Product Components. Except as otherwise expressly agreed in
writing by the parties, payment for Products and Product Components
shall be made in United States dollars, calculated at the French
Franc/US Dollar exchange rate, as reflected in the French "Journal
Officiel" for the date of acceptance of the purchase order, in an
amount adequate to cover the full purchase price plus all other
charges, if any, incurred by Manufacturer for the account of Purchaser,
and such payment shall be due and payable in full within thirty (30)
days after the date the Products and Product Components were put at the
disposal of Purchaser's carrier. Any late payments will bear interest
at a rate of twelve percent (12%) per annum.
8. Title and Risk of Loss. Title and risk of loss to Products and Product
Components shall pass to Purchaser upon delivery to Purchaser's carrier
at the Manufacturing Facilities. If Manufacturer delays in so
delivering the Products or the Product Components to Purchaser's
carrier, due to any action or request of Purchaser, Purchaser shall pay
all reasonable storage and insurance charges incurred by Manufacturer.
Purchaser agrees to indemnify and hold Manufacturer harmless for, from
and against any and all loss of or damage to the Products or the
Product Components sustained while risk of loss remains upon Purchaser.
Manufacturer agrees to indemnify and hold Purchaser harmless for, from
and against any and all loss of or damage to Products or the Product
Components sustained while risk of loss remains upon Manufacturer.
9. Representations, Warranties and Covenants by Manufacturer. Manufacturer
represents and warrants to Purchaser and Cerprobe as follows:
(a) Generally. Manufacturer is a corporation duly organized,
validly existing and in good standing under the laws of
France, with the full right, power and authority, corporate
and otherwise, to design, manufacture and sell the Products
and Product Components to Purchaser according to the terms of
this Agreement and to carry on its business in all
jurisdictions and countries as it is now being conducted and
as
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intended to be conducted in the performance of this Agreement.
The execution and delivery of this Agreement, the timely
consummation of the transactions contemplated hereby and the
complete and timely fulfillment of the terms hereof have been
duly and validly authorized by all necessary action on the
part of Manufacturer, and this Agreement constitutes the
legal, valid and binding obligation of Manufacturer, fully
enforceable against Manufacturer in the United States. Neither
the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will
conflict with, violate or result in a breach of or default
under (with or without the giving of notice or the passage of
time, or both): (i) the incorporation documents or corporate
by-laws or regulations of Manufacturer; (ii) any license,
instrument, contract or agreement to which Manufacturer is a
party or by which Manufacturer is bound; or (iii) any law,
order, rule, regulation, writ, injunction or decree that is
applicable to Manufacturer.
(b) Intellectual Property. Manufacturer holds the rights to use
all patents, trade secrets, information, proprietary rights
and processes necessary for the manufacture and sale to
Purchaser of the Products and Product Components as provided
in this Agreement, without, to the best of its knowledge after
due inquiry, any conflict with or infringement of the rights
of others. Manufacturer has not received any written notice
alleging that Manufacturer has violated or, by selling any of
the Products or Product Components, would violate any patents,
trade secrets or other proprietary or intellectual property
rights of any other person or entity. However, Manufacturer is
not the registered owner of the "Cobra" trademark or trade
name and does not make any representations concerning this
trademark or trade name.
(c) No Others Authorized in Territory. Manufacturer has not
licensed or authorized any other entities doing business in
the Territory to assemble, repair or distribute Products, nor
shall Manufacturer do so during the term of this Agreement,
subject to Article 1 (b) above.
10. Representations and Warranties by Purchaser.
(a) Generally. Purchaser represents and warrants to Manufacturer
that (i) Purchaser is a limited liability company duly
organized, validly existing and in good standing under the
laws of the State of Arizona, with the full right, power and
authority, corporate and otherwise, to engage in any lawful
business in accordance with the Operating Agreement, including
the purchase of the Products and the Product Components under
the terms of this Agreement, and to carry on its business in
all jurisdictions and countries as it is now being conducted
and as intended to be conducted in the performance of this
Agreement, (ii) the execution and delivery of this Agreement
the timely consummation of the transactions contemplated
hereby and the complete and timely fulfillment of the terms
hereof have been duly and validly authorized by all necessary
action on the part of Purchaser and its Members,
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(iii) this Agreement constitutes the legal, valid and binding
obligation of Purchaser, fully enforceable against Purchaser
in accordance with its terms, and (iv) neither the execution
and delivery of this Agreement, nor the consummation of the
transactions contemplated hereby, will conflict with, violate
or result in a breach of or default under (with or without the
giving of notice or the passage of time, or both): (A) the
incorporation documents or Operating Agreement or regulations
of Purchaser; (B) any license, instrument, contract or
agreement to which Purchaser is a party or by which Purchaser
is bound; or (C) any law, order, rule, regulation, writ,
injunction or decree that is applicable to Purchaser.
11. Duties of Manufacturer.
(a) Indemnification. Manufacturer agrees to indemnify, defend and
hold Purchaser, Cerprobe, and its and their officers,
directors, employees, agents and representatives (each, an
"Indemnitee") harmless for, from and against any and all
damages, losses, liabilities (absolute and contingent), fines,
penalties, costs and expenses, including, without limitation,
reasonable attorney's fees and costs and expenses incurred,
("Damages") with respect to or arising out of any demand,
claim, proceeding, action and/or cause of action that any of
the Indemnitees may suffer or incur by reason of or arising
out of (i) the inaccuracy or untruth of any of the
representations or warranties of Manufacturer contained in
this Agreement, (ii) any claim by any third party in respect
to infringement of the intellectual property rights of any
third party arising out of the design, manufacture,
distribution or sale of any of the Products or Product
Components.
(b) Indemnification Limitations. The indemnification obligation
set forth above is limited by the following:
(i) The Indemnitee shall notify Manufacturer within
thirty (30) days of: (i) its receiving actual notice
of a demand, claim, proceeding, action or cause of
action from a third party, or (ii) in any other case,
its becoming aware of (or, in the case of any
Indemnitee that is not a natural person, its
executive officers or supervisory personnel becoming
aware of) a potential demand, claim, proceeding,
action or cause of action (provided that the failure
to notify Manufacturer shall in no case prejudice the
rights of an Indemnitee under this Agreement unless
Manufacturer shall be prejudiced by such failure and
then only to the extent Manufacturer has been
prejudiced by such failure). Manufacturer shall
solely determine whether or not to settle a given
claim (provided that Manufacturer shall obtain the
consent of Cerprobe to settlement of any nonmonetary
claim against Cerprobe or its officers, directors,
employees, agents or representatives).
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(ii) Manufacturer shall be solely responsible for the
defense of its Intellectual Property Rights, and
Purchaser shall provide all reasonably requested
support to Manufacturer.
(iii) The above indemnification obligation shall only apply
to the extent the Product Components were not
modified by Purchaser.
(iv) The above indemnification does not apply if the
Products or Product Components are used or combined
with another item by the Indemnitee and such use or
combination is not permitted by this Agreement and is
what gives rise to the infringement.
(v) The above indemnification does not apply to any
Damages that arise subsequent to a demand by
Manufacturer for the Indemnitee to cease delivery of
a particular Product or Product Component, or to
begin delivery of a non-infringing substitute.
(vi) Manufacturer's indemnification obligation shall
terminate with respect to any demand, claim,
proceeding, action or cause of action for which an
Indemnitee has not given notice hereunder within (A)
in the case of clause (i) of Section 11(a), 2 years
following the termination of this Agreement for any
reason, or (B) in the case of clause (ii) of Section
11(a), the expiration of all applicable legal
statutes of limitations and similar laws.
(c) Intellectual Property Rights. During the term of this
Agreement, Manufacturer shall maintain its registered
trademarks, as listed in Exhibit F, and shall not act in any
way as to invalidate or render unenforceable any of its
trademarks, trade names, license and other intellectual
property used in conjunction with the Products and Product
Components in the Territory ("Intellectual Property Rights")
and shall use its commercially reasonable efforts to enforce
infringement by third parties in the American and Asian
Territories, under the terms provided in Article 12(d)(3)
hereof.
(d) Training; Instructions; Demonstrations. Following the date
hereof, Manufacturer shall make readily available detailed
assembly and repair instructions and demonstrations of the
Products and Product Components to Purchaser's technical
assembly and repair staff as agreed to between Purchaser and
Manufacturer. The initial training to be provided by
Manufacturer to Purchaser shall be at the cost set forth
herein on Exhibit G. Such training and demonstrations shall be
provided at Manufacturer's facilities in Corbeil, France.
Purchaser shall be responsible for all its own costs and
expenses incurred by their staff in traveling to and from
training sites. Subsequent training shall be provided with the
frequency agreed to between the parties. The fees for such
subsequent training shall depend upon the daily rate at such
time for the appropriate technician. An indication of the 1997
prices is
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provided in Exhibit G. Such prices are subject to change.
Manufacturer shall notify Purchaser of such modifications. All
costs and expenses incurred by Manufacturer's staff for
training, including travel, shall be paid for by Purchaser.
(e) Technical Assistance. Upon the request of Purchaser,
Manufacturer will provide Purchaser with reasonably requested
prompt and timely technical assistance with respect to the
assembly and repair of the Products and the use and assembly
of Product Components under the terms agreed to by the
parties. An indication of the 1997 prices is provided in
Exhibit H. Such prices are subject to change. Manufacturer
shall notify Purchaser of such modifications.
12. Duties of Purchaser.
(a) Purchasing Obligation. Purchaser is obliged, to the extent
allowed under the local or international antitrust rules and
regulations, to purchase Products and Product Components as
well as the engineering, design and related tooling for the
Products exclusively from Manufacturer. Purchaser shall not
distribute any products, other than the Products, without the
express written approval of Manufacturer.
(b) Reporting. Within thirty (30) days following the end of each
calendar quarter, Purchaser shall provide Manufacturer with
assembly and repair performance data for the previous quarter,
and projections for the following quarter, such projections to
include the reasonably expected volume of future orders of
Product Components. None of such projections shall be deemed
purchase orders or commitments, nor shall the Company have any
liability for failure to meet any such projections.
(c) Intellectual Property Rights.
(i) Purchaser agrees that, except as is specifically
provided herein, it will not, directly or indirectly,
at any time during the term of this Agreement or
thereafter: (a) represent that it has any ownership
interest in or rights to the Intellectual Property
Rights owned by Manufacturer or (b) register or
attempt to register or use in any manner whatsoever
such Intellectual Property Rights, without
Manufacturer's specific prior written consent.
(ii) If Purchaser or any of its directors, officers,
employees or Affiliates registers any Intellectual
Property belonging to Manufacturer, Purchaser will
cause the assignment of such to Manufacturer
immediately upon request, and without charge.
(iii) Should Purchaser become aware of a potential third
party infringement of any of the Intellectual
Property Rights of Manufacturer, it shall immediately
inform Manufacturer who shall, at its sole
discretion, determine whether or
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not to proceed against such potential infringement
after consultation with the Company.
(iv) Purchaser's use of Manufacturer's Intellectual
Property Rights shall be expressly limited to the
assembly, testing, maintenance, repair, distribution
and sale of the Products and Product Components under
the terms provided in this Agreement.
(v) Upon the termination of this Agreement for any
reason, Purchaser shall immediately return to
Manufacturer, all originals and any copies of
Intellectual Property Rights belonging to
Manufacturer in its possession or control and
immediately stop using such Intellectual Property and
the Upsys Technology.
(d) Marking of Products. Purchaser agrees that all Products may be
exclusively marked by Manufacturer "Upsys" or such other
marking that Manufacturer shall request. Purchaser will not
take action to mark any Products with any trade name,
trademark or similar marking without the prior consent of
Manufacturer.
(e) Indemnification. Purchaser agrees to indemnify, defend and
hold Manufacturer, and its officers, directors, employees,
agents and representatives (each an "Indemnitee") harmless
for, from and against any and all damages, losses, liabilities
(absolute and contingent), fines, penalties, costs and
expenses, including, without limitation, reasonable attorney's
fees and costs and expenses incurred, with respect to or
arising out of any demand, claim, proceeding, action and/or
cause of action that any of the Indemnities may suffer or
incur by reason of or arising out of (i) the inaccuracy or
untruth of any of the representations or warranties of
Purchaser contained in this Agreement, (ii) any claim by any
third party in respect to infringement of the intellectual
property rights of any third party arising solely out of the
assembly, distribution, sale or repair by Purchaser of any of
the Products or Product Components in breach of this
Agreement.
(f) Indemnification Limitations. The indemnification obligation
set forth above is limited by the following:
(i) The Indemnitee shall notify Purchaser within thirty
(30) days of: (A) its receiving actual notice of a
demand, claim, proceeding or action from a third
party, or (B) in any other case, its becoming aware
of (or, in the case of any Indemnitee that is not a
natural person, its executive officers or supervisory
personnel becoming aware of) a potential demand,
claim, proceeding, action or cause of action
(provided that the failure to notify Purchaser shall
in no case prejudice the rights of an Indemnitee
under this Agreement unless Purchaser shall be
prejudiced by such failure and then only to the
extent
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Purchaser has been prejudiced by such failure).
Purchaser shall solely determine whether or not to
settle a given claim (provided that Purchaser shall
obtain the consent of Manufacturer to settlement of
any nonmonetary claim against Manufacturer or its
officers, directors, employees, agents or
representatives).
(ii) Purchaser's indemnification obligation shall
terminate with respect to any demand, claim,
proceeding, action or cause of action for which an
Indemnitee has not given notice hereunder within (A)
in the case of clause (i) of Section 12(e), 2 years
following the termination of this Agreement for any
reason, or (B) in the case of clause (ii) of Section
12(e), the expiration of all applicable legal
statutes of limitations and similar laws.
13. Nondisclosure and Limited Use of Confidential and Proprietary
Information.
(a) The parties agree that, except to the extent necessary to
comply with applicable law and regulatory and supervisory
requirements, each party shall keep, and cause their
respective Affiliates to keep, the terms and conditions of
this Agreement and the transactions contemplated by this
Agreement confidential.
(b) During the term of this Agreement, the parties will receive
certain trade secrets and confidential information relating to
each party's business and operations ("Confidential
Information"). The parties shall hold in strictest confidence
and not disclose to any third party any such Confidential
Information designated in writing or which by its nature
should reasonably be deemed confidential. Further, neither of
the parties shall use or permit the use of any such
Confidential Information in a manner detrimental to the other
or in any manner other than in furtherance of the purposes
hereof.
(c) Notwithstanding any provision in this Agreement or a related
agreement to the contrary, the parties agree that for as long
as this Agreement is in force, Purchaser shall use the same
care and discretion (but not less than reasonable care and
discretion) to avoid disclosure, publication or dissemination
of any Confidential Information within the scope of the Upsys
Technology as Purchaser uses with its own similar information
that Purchaser does not wish to disclose, publish or
disseminate.
(d) To the extent that they do not use the Confidential
Information of the parties hereto, information, be it
technical or not, concerning the activity of the Company,
created by an employee of the Company or by a seconded
employee of one of the parties hereto, along or in
collaboration, are considered as information belonging to the
Company, and it alone.
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(e) Each party shall take all necessary measures concerning its
seconded employees so that they abstain from disclosing the
Confidential Information of the Company.
(f) No Confidential Information can be exchanged between the
Company and a party through a seconded employee except with
the prior agreement of the party to whom the Confidential
Information belongs. The Confidential Information will be
considered by the party which receives it as confidential and
treated by such party in the manner described above.
(g) Notwithstanding the foregoing, either party will be permitted
to make use of or disclose Confidential Information:
(i) which is in or comes into the public domain other
than through the default of a party;
(ii) which was already in the possession of a party prior
to disclosure by the disclosing party hereto as
evidenced by documentation in such party's
possession;
(iii) which is lawfully acquired from a third party who did
not obtain it directly or indirectly from the
disclosing party;
(iv) which is required to be disclosed by or to a court or
governmental agency, but only to the extent and for
the purpose so required (it being understood that the
party being required to disclose such Confidential
Information will endeavor to (but shall not be liable
for failure to) notify the other party of such
requirement so that the other party may take steps to
legally protect its interests); and
(v) with a party's financial advisors, attorneys,
accountants or any other third party engaged by it to
the extent strictly necessary to effect the purposes
and intent of this Agreement, it being understood
that, in the case of any such disclosure, the party
shall previously have obtained from such third
parties satisfactory written undertakings of
confidentiality and either obtained for itself from
such third parties or ensured that such third parties
have given to the provider of such Confidential
Information written undertakings not to disclose or
use such Confidential Information for any purpose
other than the fulfillment of this Agreement, and
shall cause such third parties to respect such
undertakings.
(h) The parties acknowledge and agree that the unauthorized use or
disclosure of such Confidential Information would constitute,
inter alia, an act of unfair competition
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and cause irreparable harm to the non disclosing party, its
competitive position and goodwill, and each party acknowledges
responsibility for damages caused to the others by such
unauthorized use or disclosure.
(j) This obligation of confidentiality shall remain in effect
during the term of this Agreement and for five (5) years
thereafter.
14. Advertising and Promotion. Purchaser shall have the right to advertise
and to promote the Products and Product Components by telephone, mail,
newspaper, magazine, radio, television and any other lawful means, as
specifically agreed to by Manufacturer upon proposition by Purchaser.
All use of Manufacturer's trade names and trademarks for the Products
and Product Components, are subject to Purchaser submitting all
proposed uses of such trademarks to Manufacturer for approval prior to
such use. Manufacturer agrees that it will not unreasonably withhold
its agreement to any such proposal referred to in this Section 14.
Manufacturer further agrees to respond promptly to any such proposal,
and that any such proposal shall be deemed approved if not reasonably
disapproved by Manufacturer within thirty (30) days of its receipt of
the proposal. The use of any such trademarks, symbols, trade names,
corporate names or other Intellectual Property Rights shall not give
Purchaser any proprietary rights therein.
15. Inspection and Warranty.
15.1 Manufacturer warrants that all Product Components and Products
will be free of defects in design, manufacturing and raw
materials for a period of three (3) months from the date of
receipt of such Product Components and Products by Purchaser
at its facilities.
15.2 Purchaser will inspect the Product Components or Products at
Purchaser's facilities. If Purchaser finds that any such
Product Component or First Set does not conform to the
relevant accepted purchase order, Purchaser will notify
Manufacturer within ten (10) days of its receipt of such goods
at its facilities.
15.3 All claims under the inspection and warranty rights in this
Article 15 must be received by Manufacturer before the
expiration of the ten (10) day inspection period or the three
(3) month warranty period, respectively, accompanied by
written notice (each a "Warranty Notice") giving a reasonably
detailed description of the nonconformity or defect in goods,
respectively. Within fifteen (15) days of receiving a Warranty
Notice, Manufacturer will, at its option, (i) repair or
replace the defective goods (with shipping and insurance for
Manufacturer's account and at its risk), or issue a credit or
refund for the defective goods or (ii) request a return of the
goods in question, in which case Purchaser will return the
goods in question within five (5) days of Manufacturer's
request (with shipping and insurance for Manufacturer's
account and at its risk). Manufacturer will inspect the
returned goods and if the
-14-
goods are nonconforming, Manufacturer will issue a credit or
refund for the defective goods. If Manufacturer reasonably
believes the goods are conforming, Manufacturer will
communicate its findings to Purchaser and Manufacturer and
Purchaser will take appropriate actions to resolve such
dispute (including good faith discussions between the
parties).
15.4 Manufacturer shall have no liability whatsoever under this
limited product warranty or otherwise if the defect or failure
to conform to specifications is due to transportation
conditions, improper storage, handling or conditions of use of
the Product Components or Products by Purchaser or by any
third party.
15.5 This limited warranty is extended by Manufacturer solely to
Purchaser and applies only to the Product Components and
Products which were manufactured and delivered by
Manufacturer. Manufacturer hereby disclaims and excludes all
warranties, express or implied, or any liability whatsoever
with respect to assembled Products integrating the Product
Components, other than First Sets.
15.6 Any warranty replacement of a part cannot have the effect of
extending the initial warranty period.
15.7 Manufacturer declines any liability for any Product or Product
Component not delivered by itself and, in particular, for
other products or components used by Purchaser and integrated
into an assembly. Manufacturer will not be liable if the
failure of one of its Product Components is caused by other
neighboring components or by components to which it is linked
by Purchaser or a third party.
15.8 Under no circumstances shall Manufacturer or Purchaser be
liable to the other for any special, incidental,
consequential, indirect or exemplary losses or damages
pertaining in any way to the products or product components
under this Agreement.
16. Term of Agreement. Subject to Sections 1(b) and 17 hereof, the term of
this Agreement shall be for a period of eighteen (18) months from the
date of signature of this Agreement; and shall be extended to the
extent the Operating Agreement is still in force between Manufacturer
and Cerprobe for additional consecutive one-year periods as
specifically agreed to by the parties, except as otherwise agreed.
17. Termination.
(a) Generally. Except as otherwise provided for in this Agreement,
if either party defaults in the performance of any of its
obligations under this Agreement or if an event of default as
described below occurs, the non-defaulting party may defer
shipments, payments, orders for Product Components or receipt
of deliveries without incurring additional costs until the
default is cured. If the default is not cured within
-15-
thirty (30) business days of the giving of written notice
thereof to the defaulting party, at the option of the
non-defaulting party exercised in writing to the defaulting
party, this Agreement shall terminate at the end of the thirty
(30) business day period.
(b) Dissolution of Purchaser. Upon dissolution of Purchaser for
any reason whatsoever, or should Manufacturer no longer be a
Member of the Company, this Agreement shall automatically
terminate.
(c) Right to Sell. After the termination or the expiration of this
Agreement, Purchaser may return to Manufacturer the inventory
of unused and non-obsolete standard Product Components
purchased from Manufacturer by Purchaser, limited to
forty-five (45) days of inventory of such Product Components
measured by the average inventory for the prior six months of
operations for 85% of the purchase price originally paid by
Purchaser for such items. No remaining inventory may be sold
with the Upsys trademarks or trade names after termination of
this Agreement, without the approval of Manufacturer.
(d) Survival of Certain Obligations. Notwithstanding any
termination or expiration of this Agreement, Manufacturer
shall fill all orders within 60 days of termination. Purchaser
shall not be relieved of its obligation to pay for all Product
Components ordered prior to termination and shipped or
delivered before or after termination, and Manufacturer shall
not be relieved of its warranty and indemnification
obligations concerning such Product Components under the terms
set forth herein.
(e) Use of Manufacturer's Intellectual Property. Upon termination
or expiration of this Agreement, the Company shall not have
the right to continue to use the Upsys Technology in the
Territory or elsewhere.
(f) Events of Default. The occurrence of any of the following
events shall be considered an event of default hereunder: (i)
the filing of any voluntary or involuntary petition for
bankruptcy or upon any agreement (oral or written) in respect
of any arrangement of creditors; (ii) the sale, transfer,
conveyance or other disposition of either the capital stock or
beneficial interest in Purchaser resulting in a "change of
control" of such party, or of substantially all of the assets
of such party; or (iii) with respect to Manufacturer,
Manufacturer's decision to discontinue the manufacture, sale
or distribution of the Products or Product Components
necessary for the assembly of the Products, without proposing
an acceptable alternative.
-16-
18. Force Majeure.
(a) Neither Purchaser nor Manufacturer shall be responsible for
any breach or non observance of any term or condition of this
Agreement (except payment obligations) in case of Force
Majeure.
(b) Force Majeure includes, but is not limited to:
(i) compliance with any law, ruling, order, regulation,
requirement or instruction of any government or any
department or agency thereof;
(ii) acts of God;
(iii) fires, strikes, labor slowdowns, embargoes, war or
riot.
(c) Any delay resulting from any of such causes shall extend
performance accordingly or excuse performance in whole or in
part, as may be necessary. Either party shall have the right
to terminate this Agreement upon thirty (30) days prior notice
if either party is unable to fulfill its obligation under this
Agreement due to any of the above mentioned causes and if such
inability continues for a period of one hundred and twenty
(120) days.
(d) The party claiming Force Majeure shall notify the other party
by registered mail within fifteen (15) days of the occurrence
of Force Majeure and shall send within forty-five (45) days
thereafter by registered mail, proof of the Force Majeure
event.
19. Independent Contractor. Purchaser and Manufacturer acknowledge and
agree that Manufacturer is an independent contractor and that under
this Agreement neither Purchaser nor Manufacturer shall be considered
for any purpose to be the agent, franchisor, or franchisee of the
other. Nor shall Manufacturer or Purchaser have any obligation or
responsibility to act on behalf of or in the name of the other, or the
power or authority to bind the other in any manner whatsoever. Any
representation to the contrary by Purchaser or by Manufacturer, or the
employees or agents of either, shall be a breach of this Agreement by
the other party hereto.
20. General Provisions.
(a) Representations and Warranties. Each of the representations
and warranties of the parties respectively shall be true and
correct as of the date hereof and throughout the term of this
Agreement, and, except as expressly limited in this Agreement,
shall survive the termination or expiration of this Agreement.
-17-
(b) Further Assurances. Each of the parties hereto shall execute
and deliver all such other instruments and take all such
action as either party may reasonably request from time to
time in order to effectuate the purposes of this Agreement and
the transactions provided for herein.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement
shall be in writing and shall be deemed to have been duly
given, made and received when delivered against receipt,
twelve (12) hours after being sent by telecopy, or three (3)
days after being sent by registered or certified mail, postage
prepaid, return receipt requested, addressed to the
recipient's address as set forth below:
Upsys
283, boulevard John Kennedy
91100 Corbeil Essonnes France
Fax Number: (33) (1) 60895202
Attn: Jean-Claude Gery
Upsys-Cerprobe, L.L.C. or Cerprobe
600 South Rockford Drive
Tempe, Arizona 8528
Fax Number: (602) 967-4636
Attn: C. Zane Close
Either party may alter the address to which communications are
to be sent by giving notice of the change of address in
conformity with the provisions of this paragraph for the
giving of notice
(d) Binding Nature of Agreement; Assignment. This Agreement shall
be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that
neither party hereto may assign or transfer its rights or
obligations under this Agreement without prior written consent
of the other, and any such assignment or transfer without such
approval shall constitute a breach hereof and shall be null
and void and of no force or effect, and shall not convey any
rights to or interest in this Agreement.
(e) Entire Agreement. This Agreement contains the entire agreement
and understanding between the parties hereto with respect to
the subject matter hereof, and supersedes and is in lieu of
all prior and contemporaneous agreements, understandings,
inducements and conditions, express or implied, oral or
written, of any nature whatsoever with respect to the subject
matter hereof. The express terms hereof control and supersede
any course of performance or usage of the trade inconsistent
with any of the terms hereof
-18-
(f) Governing Law, Jurisdiction and Venue. This Agreement and all
questions relating to its validity, interpretation,
performance and enforcement, will be governed by and
construed, interpreted, and enforced in accordance with the
laws of the State of New York, notwithstanding any conflict of
laws rules to the contrary and in accordance with the United
States Arbitration Act, 9 U.S.C. Sections 1 et seq. Subject to
the mandatory arbitration provision in Section 20(g) below,
the exclusive jurisdiction and venue of any action relating to
this Agreement will be the United States District Court for
the Southern District of New York and each of the parties to
this Agreement submits to the exclusive jurisdiction and venue
of such courts for the purpose of any such action.
(g) Arbitration. If any dispute arises under this Agreement, upon
written notice of either party, the parties will immediately
seek to resolve the dispute by good faith negotiations. If the
parties are unable to resolve the dispute in writing within
ten (10) business days from the commencement of such good
faith negotiations, then without the necessity of further
notice or agreement between the parties, such dispute will be
finally settled in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and its
Supplementary Procedures for International Commercial
Arbitration, as in effect as of the date of this Agreement.
The language for such arbitration will be English and the site
will be New York, New York. The number of arbitrators will be
three (3) (the "Arbitrators"). If the parties agree on the
persons to be the Arbitrators at the time the dispute is
submitted to arbitration, then those persons shall be the
Arbitrators. Otherwise, each party will select one (1) of the
Arbitrators, and those Arbitrators will select the third
arbitrator. Failing an agreement on the third Arbitrator, the
president of the American Arbitration Association will be the
sole appointing authority for the third Arbitrator. The
decision of the Arbitrators will be final and non-appealable
as between the parties to this Agreement. Either party may, at
its option, seek injunctive relief or other provisional
remedies against the other party from any court of appropriate
jurisdiction. Each party to the dispute will bear its
respective expenses incurred in respect of the dispute and the
costs of the Arbitrators will be borne equally by both
parties.
(h) Remedies Cumulative. Except as specifically set forth herein
to the contrary, the remedies of the parties hereto under this
Agreement are cumulative and will not preclude the recovery,
award or grant of any other remedies to which any party may be
lawfully entitled.
(i) Indulgences Not Waivers. Neither the failure nor any delay on
the part of a party to exercise any right, remedy, power or
privilege under this Agreement shall operate as a waiver
thereof, nor shall any single or partial exercise of any
right, remedy, power or privilege preclude any other or
further exercise of the same or of any right,
-19-
remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver
shall be effective unless it is in writing and is signed by
the party asserted to have granted such waiver.
(j) Severability. If any provision of this Agreement shall be
conclusively determined by a court of competent jurisdiction
to be invalid or unenforceable to any extent, the remainder of
this Agreement shall not be affected thereby.
(k) Numbers of Days. In computing the numbers of days for purposes
of this Agreement, all days shall be counted, including
Saturdays, Sundays and holidays in the State of Arizona and
France; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday, then the final
day shall be deemed to be the next day that is not a Saturday,
Sunday or holiday.
(l) Attorneys' Fees. If any action is brought to enforce the
provisions of this Agreement, the prevailing party in the
action shall be entitled, in addition to any other relief, to
recover reasonable attorneys' fees and other costs and
expenses incurred in the action in an amount to be fixed and
determined by the arbitrator(s) agreed upon by the parties or
by the court.
(m) Construction. The parties hereto acknowledge and agree that
each party has participated in the drafting of this Agreement
and that this document has been reviewed by the respective
legal counsel for the parties hereto and that the rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party will not be applied to the
interpretation of this Agreement. No inference in favor of, or
against, any party shall be drawn from the fact that one party
has drafted any portion hereof.
(n) Definitions. All capitalized expressions not otherwise defined
in this Agreement will have the meanings given such respective
expressions in the Operating Agreement.
(o) Amendment. This Agreement may only be amended or modified by
written agreement signed by all of the parties hereto.
-20-
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered by their proper and duly authorized representatives as of the date
first above written.
UPSYS
By: /s/ Jean Claude Gary
-------------------------------------
Name: Jean Claude Gary
-----------------------------------
Its: General Manager
------------------------------------
UPSYS-CERPROBE, L.L.C.
Cobra Venture Management, Inc.
its Manager
By: /s/ Michael K. Bonham
-------------------------------------
Name: Michael K. Bonham
-----------------------------------
Its: Vice President
------------------------------------
CERPROBE CORPORATION (as concerns
specific obligations hereunder)
By: /s/ C. Zane Close
-------------------------------------
Name: C. Zane Close
-----------------------------------
Its:President and Chief Executive Officer
------------------------------------